text:
    Mary Menneiley, Plaintiff, v. The Employers’ Liability Assurance Corporation (Limited), Defendant.

      Accident insurance — exception from the policy of death or disablement '‘arising, from anything accidentally inhaled” —illuminating gets.

    A policy of insurance “against personal injuries caused by accident within the meaning of this policy,” contained the following, among other “ agreements and conditions” upon which it was issued: “ This policy does not insure * * * against death or disablement arising from anything accidentally taken, administered or inhaled, contact of poisonous substances, inhaling gas or any surgical operation,” etc. The insured died from accidentally inhaling illuminating, gas which accidentally escaped into the room where he was sleeping in a hotel.

      Held, that the cause of death came within the exception of “anything accidentally inhaled,” and consequently was taken out of the provision of the policy so that no recovery could be had therefor under the policy.
    Motion by tbe plaintiff, Mary Menneiley, for judgment on a verdict directed by tbe court at the Monroe Circuit on tbe 13th day of January, 1893, subject to tbe opinion of the General Term on a case, to be made by the plaintiff.

      Wm. iY Cogswell, for tbe plaintiff.

      W. A. Sutherland, for tbe defendant.
   Dwight, P. J.:

The action was on a policy or contract of insurance payable to the-plaintiff, which insured her husband, Samuel D. ~W. Menneiley, against personal injuries caused by accident within the meaning of this policy.” The insured died from accidentally inhaling illuminating gas which accidentally escaped into the room where he was sleeping in a hotel. The only question in the case is whether that accident was “ within the meaning of this |>olicy.”

The policy contained the following, among other “ agreements and conditions ” upon which it was issued: “ This policy does not insure- * * * against death or disablement arising from anything accidentally taken, administered or inhaled, contact of poisonous substances, inhaling gas or any surgical operation,” etc.

It has been held by the court of last resort in this State that, by the words “ inhaling gas ” in a similiar exception contained in the contract of another insurer against accidents, “the company can only be understood to mean a voluntary or intelligent act by the insured and not an involuntary and unconscious act.” (Paul v. The Travelers’ Ins. Co., 112 N. Y. 472.) So that if the exception of death or disablement by inhaling gas ” was the one relied upon by the defendant here, the authority cited would "be conclusive against its contention. But such is not the case. The exception here relied upon, which was not in the policy in the case of Paul, expressly describes an act not voluntary and intelligent, but, on the contrary, accidental. The death or disablement excepted is one “ arising from anything accidentally inhaled.” And here was the death of the insured arising from illuminating gas accidentally inhaled.

It seems difficult to elaborate or prolong an argument upon this statement.- Here is no room for interpretation; the words employed interpret themselves, and unquestionably apply to the facts presented by the stipulation of the parties. The exception here relied upon, if expressly framed to avoid the construction put upon that in the case of Paml (supra), could not more successfully have accomplished the purpose. It would be a contradiction in terms to apply the words accidentally inhaled ” to the voluntary and intelligent act of inhaling an anaesthetic in aid of a surgical operation, which the court say was apparently the reference in that case.

The facts in this case bring it, unavoidably, within the exception, and, consequently, take it out of the provision of the policy in suit.

The motion for judgment upon the verdict must be denied, with costs, and, upon the facts agreed upon, judgment ordered for the defendant, dismissing the complaint.

All concurred.

So ordered.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    Henry J. Negus, Plaintiff, v. Louis W. Becker and Thomas Maney, Defendants.

      Party wall agreement — right to extend the wall for the whole length of the division „ line.

    A written agreement between Henry J. Negus and Andrew H. Krieger, the respective owners of two adjoining village lots, fixed and established their division line and provided that Negus should construct “ on said line ” as a center a party wall suitable to support a three-story brick building, and that Krieger should pay half the cost thereof. Negus built such a wall along the line for nearly its whole length, but did not extend it quite to the rear of his lot, leaving three feet of the line unbuilt upon. Krieger paid one-lialf the cost of this wall and thereafter conveyed his land, together with his party wall rights, to others, who extended the party wall to the end of the division line and built upon it. Negus thereupon brought an action of ejectment against them to recover the portion of his lot upon which such extension of the party wall was so built by the defendants.

      Held, that while the contract did not in express terms designate the length of the division wall to be erected, it should be construed as devoting the entire length of the line to the uses of a partition wall; and that the plaintiff, having failed to build such a wall, was estopped from claiming that the defendants were not at liberty to occupy the remaining portion of the line with a wall.
    Motion by the defendants, Louis ~W. Beclcer and Thomas Maney, for judgment upon a verdict rendered in their favor at the Cattaraugus Circuit on the 22d day of February, 1893, by direction of the court subject to the opinion of the General Term.
    The action was in ejectment, brought to recover the possession of a strip of land three feet long and one foot wide, at the rear end of a lot in the Milage of Salamanca.

      Hudson Ansley, for the plaintiff.
    1 Vm. II Henderson, for the defendants.
   Lewis, J.:

The plaintiff and one Andrew PL Krieger owned adjoining lots of land fronting upon Main street in the village of Salamanca and extending easterly therefrom.

Plaintiff’s lot was seventy-three feet in depth and Krieger’s was ninety feet deep.

On the 1st day of June, 1886, plaintiff and Krieger entered into a written agreement, the material part of which is as follows:

<£ That said parties hereby agree ujion the line between the land owned by them on Main street in Salamanca as now established and staked off......

“ And each party agrees to release and cpiit claim to the other, with the release of dower, all his right, title and interest, the said Negus to all lands lying north of said line and said Krieger to all lands lying south thereof.

“ It is further agreed that said Negus shall so soon as may be, construct on said line a stone foundation, which line shall be the center thereof, of suitable size and dimensions to support a three-story brick building, and to erect thereon a brick wall fifteen inches thick for one story and twelve inches thick for the other......

And when so completed said Krieger shall pay to said Negus one-lialf the actual cost of such Avail, and thereafter the said Avail shall be OAvned jointly by the parties as a party Avail.

“ Said Krieger further agrees to pay to said Negus upon the execution of this agreement for said lands so conveyed on north side of said line tAvo hundred dollars.

“ And in consideration .of said conveyance it is further agreed that said Negus shall put upon such south side of said Avail and adjoining the same a suitable staircase, and that the same may be used by said Krieger, his agents, tenants and assigns in going to and from any building on north side of said wall.

“ And that said staircase shall be used in common by the parties without hindrance to the other; and that said Krieger shall bear one-half expense of maintaining and repairing or rebuilding the same after same shall be so built.

££ "Witness,:” etc.

Negus constructed the foundation Avail extending along said line the distance of seventy feet from Main street, one-lialf of it being on each lot. And he used the same as the northerly foundation wall for a two-story brick building Avliich he erected upon his lot, leaving three feet of the line easterly of his building without a Avail.

The parties thereafter quit claimed, pursuant to the terms of the contract, Negus to Krieger, the land lying north of the located line, and Krieger to Negus the land lying south of the line; and Krieger paid to Negus one-lialf of the cost of the said stone and brick wall, and an indorsement was made upon the said contract to that effect.

Krieger thereafter, and in the month of December, 1889, conveyed his lot to the defendants, and by a written agreement, transferred to them all his right, title 'and interest in and to the party wall built by Negus, with the right to continue the wall from the ' rear end of the Negus wall easterly to the back end of the Krieger lot.

The defendants thereupon proceeded to erect upon their lot a three-story brick building, using the said division wall as the south wall of their building, and then extended the stone wall built by the plaintiff’ onto the rear end of their lot, covering the said three feet of the division line not built upon by the plaintiff. They completed their building three stories in height, and went into possession thereof.

During the construction of their building no objection was made to their occupying the three feet of land mentioned for the foundation wall. The plaintiff was not, however, during the time the defendants were constructing their building, a resident of the State, and the record does not show that he knew they were engaged in building the same. •

While the contract does not in express terms designate the length of the division wall to be erected by plaintiff, it does provide that he shall construct upon said line a stone foundation wall of suitable size, etc. The agreement evidently contemplated that the buildings to be erected were for business purposes, and that to utilize them for that purpose it might be, and probably would be, necessary for one or both of the parties to extend his building the entire length ofLhislot.

It would hardly be claimed by the plaintiff that he was at liberty, by the terms of the contract, to build a wall say twenty or thirty feet in length, commencing ten or twenty feet back from the line of the street.

A wall of that length would not answer the defendants’ purposes. The reasonable construction of the contract, we think, devoted the entire length of the line to the uses of a partition wall; and the plaintiff having failed, for some reason not disclosed in the evidence, to build such a Avail, should be estopped from claiming that the defendants were not at liberty to occupy the remaining portion of the line Avith a Avail.

lie secured by the agreement the right to the use of defendants’ land for his party Avail, and justice forbids that he should require the defendants, in constructing their building, to build the stone Avail upon their oavii land its entire Avidth for the space of the three feet, and thereby mar the symmetry of the interior of their building. Matthews v. Dixey (22 N. E. Rep. 61) is an authority sustaining our construction of this contract.

The defendants’ motion for a judgment upon the verdict should be granted, with costs.

Dwight, P. J., and Haight, J., concurred.

Defendants’ motion for judgment on tbe verdict granted, witb costs.


text:
    Ransom H. Miller, Appellant, v. Thomas J. Reynolds and Wife, Respondents.

      Sale of realty — fraud—belief of an officer of a corporation as to his authority to make anote for the corporation — good faith — ratification as a defense — objection fi/i'st raised on appeal that the defense teas not mailable under the answer.

    In an action brought to compel the reconireyance of real estate on the ground that the defendant had obtained the title from the plaintiff through fraud, the plaintiff claimed that the defendant Avas not authorized to make a note, given in part payment therefor, AA'hicli purported to he the note of a corporation of Avhich the defendant Avas president.. The defendant claimed that power to make the note Avas given him by a Avritten agreement Avitli the corporation, and the evidence shoAved that the defendant, exhibited this agreement to the plaintiff at the time of making the trade, and informed the plaintiff that he claimed that it gave him the right to make the note, and ho testified that lie believed he had the pOAver and right to make the note.

      Held, that it Avas not important Avhetlier the agreement in fact gave the defendant the power to make the note, since it airs sufficient to support a finding of the absence of fraud in that regard if the defendant satisfied the trial court that he gave the note in good faith, belieAdng that the agreement gave him the right to make it;
    That, if the defendant was not authorized to make the note, lie would be liable to pay plaintiff tbe amount of it, but this would not constitute a ground for setting aside the conveyance.

      The trial court found, upon evidence tending to sustain the finding and which came into the case without the objection being made that the pleadings did not warrant it, that the plaintiff ratified the conveyance to the defendant after being fully advised of all the facts. The answer was simply a general denial, and the plaintiff claimed at General Term that the defendant not having pleaded ratification was not in a position to avail himself of sucha defense.

      Held, that it was too late upon appeal to raise the question.
    Appeal by the plaintiff, Ransom II. Miller, from a judgment of the Supreme Court dismissing his complaint upon the merits, entered in the office of the cleric of Monroe county on the 26th day of July, 1892, upon a decision of the court rendered after a trial at the Monroe equity term.

      John Van Voorhis, for the appellant.

      JS. A. Wash, for the respondents.
   Lewis, J.:

This is an action to compel the defendants to reconvey to the plaintiff certain premises described in the complaint, situate on Monroe avenue in the city of Rochester, on the ground that the defendant Thomas J. Reynolds obtained title thereto from the plaintiff by fraud.

The answer was a general denial of each and every allegation of the complaint.

The court found that the plaintiff had failed to establish the allegations of fraud, and further found that the plaintiff, by a subsequent agreement with the defendant Thomas J. Reynolds, ratified and confirmed the sale and conveyance.

The plaintiff conveyed the property in question to the defendant Thomas J. Reynolds, in the month of February, 1891, at the price of $22,000, subject to a mortgage thereon of $6,000, in consideration of which the defendant transferred to the plaintiff $10,000 of the stock of the Trotter Refrigerator Company and gave the plaintiff what pm-ported to be the promissory note of the refrigerator company, made by the defendant as its president for $6,000.

The testimony as to the representations that were made by the defendant to the plaintiff and to his agent Hapgood, to induce and bring about the conveyance of the property, was very conflicting and contradictory. The plaintiff’s evidence tended to establish the allegations of his complaint, that he was induced to make the conveyance by material representations made to him by the defendant that were false, and known to the defendant to be false when he made them.

The defendant, by his own testimony and that of other witnesses he called, controverted and denied the plaintiff’s charges of fraud in every particular.

The trial justice, who had the advantage of seeing the witnesses and hearing their testimony, found that the plaintiff had failed to make a case and dismissed the complaint.

.The plaintiff contends that the defendant was not authorized to make the $6,000 note which he gave the plaintiff in part payment for the property.' There was evidence tending to show that the company was indebted to the defendant at the time the note was made in an amount equal to the amount of the note.

lie claimed that power was given him to make the note by a written agreement he had made with the company.

He exhibited the agreement to the plaintiff at the time of making the trade, and informed plaintiff that he claimed that the contract gave him the right to make the note, and he testified that he believed he had the power and right to make it.

That being so, it is not important whether the agreement in fact gave him the power. It was sufficient if he could satisfy the court that he gave the note in good faith, believing the agreement gave him the right to make it.

If he was not authorized to make the note he would be liable to pay plaintiff the amount of it, but that would not constitute a ground for setting aside the conveyance.

The trial court found that the plaintiff, after being fully advised of all the facts, ratified and confirmed the sale. There was evidence tending to sustain the finding.

The plaintiff claims that the answer being simply a general denial and that defendant not having pleaded ratification he was not in a position to avail himself of such a defense.

The evidence of ratification came into the case without the objection being made that the pleadings did not warrant it, and it is too late upon appeal to raise the question.

The answer can be amended even now if substantial justice will be thereby promoted.

The judgment appealed from should be affirmed, with costs, of the appeal.

Dwight, P. J., Macomber and Haight, JJ., concurred.

Judgment appealed from affirmed, with costs.


text:
    Pauline Gaul, as Administratrix, etc., of Albert Gaul, Deceased, Respondent, v. Rochester Paper Company, Appellant.

      Master and servant — negligence —personal injury — insufficiency of a workshop roof to sustain ice falling from a higher building.

    Iu an action brought to recover from a manufacturing corporation the damages resulting from the death of an employee, caused by ice falling upon and crushing in the roof of the building in which he worked, from the roof of a higher building of the defendant on which deposits of ice were formed by the spray of an adjacent waterfall, the evidence showed that ice so formed had fallen before; that about eight months before the accident in suit, such a fall of ice had crushed in the roof of the lower building and injured the deceased, and that the defendant thereupon put on a new roof, which the evidence tended to show was inadequate to sustain the strain which the defendant knew it was liable to be subjected to by the falling of icc from the higher building.

      Held, that there could be no question but that the defendant was negligent in failing to furnish the deceased with a safe place to do the work required of him.
    It was claimed by the defendant that the danger was so obvious that the deceased was guilty of negligence in consenting to work in the building under the circumstances.' The deceased had been engaged in operating machinery in the building for eighteen months before the crushing in of the roof which caused his death, and had the opportunity of looking at it to see the manner of its construction, but he was not a carpenter and was not shown to have had any knowledge of the construction or strength of the roof, except what he would derive from looking at it.

      Held, that the deceased had a right to assume that the defendant, with its superior knowledge and information, would build a roof of sufficient strength to protect its employees and property from falling ice;
    That no especially active duty was imposed upon the deceased to inspect the mechanism of the building with a view of determining the question of its safety;

      And, lienee, that it was for the jury to say whether his remaining in the building, under the circumstances, was such negligence as to prevent a recovery.
    Appeal by the defendant, the Rochester Paper Company, from a judgment in favor of the plaintiff, entered in the office of the cleric of Monroe county on the 10th day of February, 1893, upon a verdict rendered at the Monroe -Circuit, and also from an order entered in said clerk’s office on the 10th day of February, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      George F. Yeoman, for the appellant.

      P. OhmnberlaÁn, Jr., for the respondent.
   Lewis, J.:

This action was brought by the plaintiff as administratrix of the estate of her deceased' husband, Albert Gaul, to recover damages sustained by his next of kin by his death caused by the alleged negligence of the defendant.

The defendant is a domestic corporation engaged in the manufacture of paper. Its mills are situate on the bank of the Genesee ’ river below the city of Rochester, at what are known as the Lower Falls. A part of its plant consists of a three-story building with a gable roof. One end of the building stands in close proximity to the brink of the falls. Between this building and another tall building belonging to another company was a space twenty-four feet wide. In this space and between the sides of these buildings there was a one-story frame building, about twenty-four feet long, fourteen feet wide and fourteen feet high, occupied by the defendant with a number of heavy machines used for grinding wood into pulp.

On the morning of the 9th of March, 1892, the deceased was at work, in this small building operating these machines, and while thus employed a large quantity of ice fell from the roof of defendant’s three-story building upon the roof of the small building, crushed it in upon the deceased and caused his death. One side of the roof of the large building sloped towards the small building. The distance from the eaves of the large building to the roof of the low one was from eighteen to twenty feet.

Large quantities of spray arise from the waters as they fall over the precipice, which drifts over upon the roofs of the buildings, and in cold weather freezes and forms coatings of ice thereon. When a thaw comes the ice is loosened from the roofs and slides off, and so much of it as is over the roof of the low building falls thereon; this had occurred several times previous to the time Gaul was killed. Gaul commenced working for the defendant in the small building about eighteen months prior to tSb time of his death.

About eight months before his death, ice fell from the taller building onto the roof of the small one and crushed it in, and Gaul sustained some slight injuries thereby. The defendant then covered the small building with a gable roof, and' that was the roof which was upon the building at the time of the accident; the former roof was flat. Gaul was at home recovering from his injuries at the time the gable roof was constructed. A particular description of the materials used and the manner of constructing the gable roof was shown upon the trial. While it was constructed of strong materials quite sufficient to sustain any ordinary weight, the evidence tended to show that it was not properly sustained from below and was entirely inadequate to sustain the strain that it was well known by the defendant it was liable to be subjected to by the falling of ice from the roof of the larger building. The ice that fell from the high building at the time deceased was killed, was from four to six inches in thickness, and that which fell on the small building weighed from one to two tons. The defendant had occupied these premises for five years prior to the date in question. Its president testified that they had been troubled by the ice falling from the roof of the main building upon the lower building ever since they first occupied the premises.

There can be no question but that the defendant failed to furnish the deceased with a safe place to do the work it required of him. Counsel for the appellant does not claim to the contrary, but insists that the danger was so obvious that the deceased was guilty of negligence in consenting to work in the building under the circumstances, and this presents the serious question in the case.

The deceased was twenty-six years of age when he was killed. He had been living in this country but four years. He was operating the mills in this building, and -had the opportunity by looking at it to see the manner of its construction, but he was not a carpenter and was not shown to have had any knowledge of the construction or strength of the roof, except what he would derive from looking at it. He had a right to assume that the defendant, with its superior knowledge and information, would build a roof of sufficient strength to protect its employees and property from the falling ice.

He had a right to assum;e that so far as ordinary diligence could accomplish it, the master would furnish proper structures and'appliances to insure the safety of its employees. No especially active duty was imposed upon him to inspect the mechanism of the building with a view of determining the question of its safety. (Rigdon v. Allegany Lumber Co., 37 N. Y. St. Repr. 517.) John Henseimau, an employee of the defendant, who had charge of the pulp grinding and was deceased’s foreman, testified that Gaul conversed with him a short time before the accident about the danger of the ice falling upon the building, and expressed his opinion that it would not stand it if the ice came down upon it, and said that he was afraid to stay in it.

Another witness testified that Gaul expressed fear about the strength of the roof, but said he thought he was joking when he spoke of it. Such evidence is not of the most satisfactory character. Witnesses are quite apt to misunderstand such conversations and give a wrong construction to them.

We think it was for the jury to determine whether the deceased fully understood and comprehended the strength of the new roof, and whether he had sufficient information and intelligence to realize the danger of the situation. While he may have had some fears regarding it, it was for the jury to say whether his remaining in the building under the circumstances was such negligence as to prevent a recovery.

The charge of the court to the jury was very full, and the law bearing upon the questions was clearly presented to them. No exceptions were taken to the charge. ,

We find nothing in the defendant’s exceptions to the refusal of the court to charge his requests, in view of what had been said in the main charge calling for a new trial.

The judgment ant[ order appealed from should be affirmed.

Haight and Bradley, JJ., concurred.

Judgment and order appealed from affirmed.


author: Bradley, J.:

text:
    Frank Saumby, an Infant, by Kate Saumby, his Guardian ad litem, Respondent, v. The City of Rochester, Appellant.

      Negligence — personal injury — open sewer manhole in a city street — sufficiency oj the notice of claim.

    In an action brought against a city to recover damages for a personal injury alleged to have been occasioned by the negligence of the city in permitting a sewer manhole, between the sidewalk and the curb, to remain uncovered, the evidence showed that the injury occurred at dusk on a summer evening when, the atlentioa of the plaintiff being attracted by a crowd of people in the street, he stepped from the sidewalk into the manhole.

      Held, that the conclusion was warranted from the evidence that the manhole was left open that evening; that the defendant was chargeable with negligence in that respect; and that the plaintiff’s injury was the consequence of that negligence and was caused without any negligence on his part.
    The charter of the city of Rochester (Laws of 1890, chap. 561, § 18) provides that no unliquidated claim or demand shall be received for audit by the common council “unless made out in detail,” and if for damages, stating “when, where and how occasioned,” and that no action to enforce any claim against the city shall be brought until the expiration of forty days after the claim shall have been presented for audit “in the manner and form aforesaid.” The notice of claim presented by the plaintiff was as follows : “The City of Rochester, N. Y., To Frank Saumby, Dr To damages for injuries sustained by said Frank Saumby on the 5th day of August, 1890, owing to the negligence of said city in leaving unprotected a sewer opening on the east side of Chatham street, near the southern corner of Holland street, into which opening said Frank Saumby fell, $1,000.”

      Held, that this was a substantial compliance with the statute.
    . Appeal by tlie defendant, tlie city of Rochester, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of that county on the 10th day of May, 1893, upon the verdict of a jury, and also from an order made on the 5th day of May, 1893, denying the defendant’s motion for a new trial made upon the minutes.
    Section 80 of the charter of the city of Rochester, as amended by section 18 of chapter561 of the Laws of 1890, provides that “no unlicpiidated claim or demand shall be received for audit [by the common council] unless made out in detail * * * and if for
    damages for wrong or injury, or negligence, when, where and how occasioned.- * * * No action or proceeding to recover or enforce any claim, debt or demand against the city shall be brought until the expiration of forty days after the claim, debt or demand shall have been presented to the common council for audit in the manner and form aforesaid.”
    The notice of claim presented by the plaintiff was as follows :
    “ The City of Rochester, N. Y.,
    “ To Frank Saumby, Dr.
    “ To damages for injuries sustained by said Frank Saumby on the 5th day of August, 1890, owing to the negligence of said city in leaving unprotected a sewer opening on the east side of Chatham street, near the southern corner of Holland street, into which opening said Frank Saumby fell, $1,000.”

      Abraham Benedict, for the appellant.

      P. Chmnberlain, Jr., for the respondent.
   Bradley, J.:

The plaintiff sustained a personal injury by stepping into a manhole of a lateral sewer on the east side of Chatham street and near the corner of that and Holland street, in the city of Rochester. ITe charges that the injury was occasioned by the negligence of the defendant in that the hole was permitted to remain uncovered. This injury occurred just at dusk in the evening of August 5, 1890, when the attention of the plaintiff was attracted by a crowd of people in the street; he stepped from the sidewalk into the manhole, which was between the sidewalk and the curb. The conclusion was warranted from the evidence that the manhole was left open that evening; that the defendant was chargable with negligence in that respect, and that the plaintiff’s injury was the consequence of that negligence, and was caused without any negligence on his part.

The question of the sufficiency of the notice of claim is raised by the defendant’s counsel.

Upon that subject, it appears that the plaintiff’s claim was presented to the common council upwards of forty days before the action was commenced, and that in due time notice of intention to commence it, etc., was filed with the city attorney. The notice of claim in its ntatemen t, presentation and service was a substantial compliance with the statute. (Laws 1890, chap. 561, § 18.)

Tbe evidence presented questions of fact for tlie consideration of tlie jury, and was sufficient to fairly permit inferences in support of all that was essential to tlie recovery of the plaintiff.

None of the exceptions to the refusal to charge as requested were well taken. The court had fully charged the jury upon the matters-for their consideration, and submitted to them the questions of fact arising upon the evidence. There was no error in any of the rulings on the trial.

The judgment and order should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.


text:
    Charles Lachman, Respondent, v. Elmer V. Irish, Appellant.

      Statute of frauds — oral promise to answer for the debt of another — consideration essential to an original undertaking.

    Certain workmen, having done some work for James G. Olmsted, on his employment, upon six houses he was building, proposed, on failing to receive their pay, to stop work, and were told by Elmer Y. Irish, who was engaged in procuring building loans, to go to work again and do what was right and he would see; them through. The men resumed work and not being paid assigned their-claims to one of their number, who brought an action thereon against Irish and recovered judgment for the amount due for the work done before as well as for that done after Irish’s promise. The time the men worked or the amount of' compensation to which they were entitled for services performed after the-promise was not distinctly shown. It appeared that Irish purchased of Olmsted two of the incomplet-ed houses before making the promise in suit, but it. did not appear -what the consideration of the sale was, or that it had any relation to the debts which Olmsted then owed the workmen, nor did it appear how much of the debts due them arose for work performed upon those two houses after such purchase.

      Held, that the evidence failed to show that the defendant had assumed the payment of Olmsted’s indebtedness for the work done before his promise, upon-any consideration moving to him which made the amount of such liability the. • defendant’s own debt and the promise to pay the same an original undertaking;,
    That, therefore, the defendant’s piomise was collateral to the existing debt of Olmsted and within the provision of the Statute of Frauds declaring a promise to answer for the debt of another void unless in writing;
    And, hence, that the judgment should be reversed.

      Appeal by the defendant, Elmer Y. Irish, from a judgment of .the County Court of Erie county, entered in the office of the clerk of that county on the 2d day of December, 1891, upon a verdict in favor of the plaintiff, and also from an order denying the defendant’s motion for a new trial made upon the minutes.
    The complaint alleged that the .defendant was indebted to the plaintiff, also to Anderson Michael, Richard Leadbitter, James R. Clark, Alexander Carver, Edward Lee, Elijah B. Harriman, William Lansdell, John C. Reinhardt and Peter A. Nie, severally, for work, and that the said persons other than the plaintiff had assigned their claims to him. The plaintiff recovered for his work, also for that of Carver, Lee, Michael and Harriman, amounting, with interest, to seventy-five dollars and eighty-seven cents, and costs. The defendant, by his answer, put in issue the allegations of the •complaint.

      Jonathmv L. Slater, for the appellant.

      G. G. De Witt, for the respondent.
   Bradley, J.:

The plaintiff and his assignors of the claims transferred to him, and on account of which the judgment was recovered, had, on the •employment of one James G. Olmsted, performed work for him upon six houses he was building, two of them on Ferry street and the other four on Howell street in the city of Buffalo. The evidence on the part of the plaintiff tends to prove that on one occasion the defendant was at the place where Michael, Harriman and Lee were or' had been at work on one of the Ferry street houses, and at the time were “laying off” there, and they stated to him that they would not work any more until they got their pay for what they had done, and that the defendant said to them, “You go •ahead and do what is right, and I will see you through.” Another •of the witnesses, referring to the same interview, states that the •defendant said, “ What’s the matter with you boys,” and they said, “ We have worked pretty nearly long enough without some money,” •and the defendant then said, “Now you boys go on to work, and I will see you all right.” And that on another occasion, when the •defendant and Olmsted were together, the plaintiff and Carver, who had been, at work on the Howell street houses, asked for payment for their work* and that the defendant said to them, “You fellows need not be alarmed about your money ; I will see that you get it; ” that he also said that he had money in the bank, and told us to “ go right on; that we would not lose a cent; that he would see that we got- it.” i

All of these persons did some work on the buildings after these promises, but the time they worked, or the amount of compensation to which they were entitled for services thereafter performed by them, does not distinctly appear by any evidence. The recovery was for the services performed both before and after that time.

The evidence of the promises of the defendant thus given must, for the purposes of this review, be treated as true, notwithstanding the contradiction of it on the part of the defense; and the question arises whether any valid undertaking to pay those men was assumed by the defendant. So far as liability had accrued at the time such promises were made, the "debt due to each of those workmen was that of Olmsted, by whom they had been employed, and for whom they had performed the service. The defendant was an insurance agent, and engaged in the business of procuring loans secured upon buildings in the course of construction, from time to time as the work progressed in course of completion, for persons engaged in building them.

This was the business which first brought him to the uncompleted structures which Olmsted was erecting and attempting to complete. It is evident that the latter, not having the means to do it, was-dependent upon loans to enable him to proceed with the work. His default in payment of the workmen produced uneasiness on their part, and an apparent purpose to quit unless payment was made or assured when the defendant’s promise was made. .Thereupon they continued to work. If it be assumed that his promise was an original undertaking as to the work thereafter performed by these men, it was clearly collateral as to the debt then due them from Olmsted, unless there was some new consideration beneficial to the defendant, moving to him, which had the effect to make his promise one to pay his own debt. (Ackley v. Parmenter, 98 N. Y. 125; White v. Rintoul, 108 id. 222.) Then the doctrine of Lawrence v. Fox (20 N. Y. 268) would be applicable in support of the promise.

It does not appear that the defendant’s promise was founded upon any consideration moving to him creating an- obligation in discharge of which he promised to pay those existing- debts of Olmsted. It is true he purchased of Olmsted the two incompleted houses on Ferry street, and it may be assumed that he did this before the promises referred to were made by him, but it does not appear what the consideration was of the sale, or that it had any relation to the debts which his grantor then owed the workmen, nor does it appear how much of the debts due them arose for work performed upon those two houses after the time of his purchase. Such work was presumptively for his benefit, and from his promise to pay for it would arise an obligation to do so. Beyond that the oral promise of the defendant, in its relation to work performed before it was made, was collateral to the debt of Olmsted existing for it, and, therefore, was within the statute which provides that a promise to answer for the debt, default or miscarriage of another is void unless in writing subscribed by the party to be charged with it. (2 R. S. 135, § 2.) In Prime v. Koehler (77 N. Y. 91), the consideration moving to the promisor secured to him a substantial benefit by way of relieving his premises from the foreclosure of an existing lien upon them. The promise was well held to be an original undertaking on his part. The cases of King v. Despard (5 Wend. 277), and Quintard v. De Wolf (34 Barb. 97), approach nearer to the support of the plaintiff’s claim than any others to which our attention has been ■called, yet they are distinguishable from the present case. The results there were reached upon the ground that the contracts under which the work was commenced were abandoned, and new, independent and original undertakings entered into, covering its entire performance. In the case at bar Olmsted remained liable for the work which had been performed by those parties, and the evidence failed to show that the defendant had assumed the payment of it upon any consideration moving to him which made the amount of such liability his debt. (Payne v. Baldwin, 14 Barb. 570 ; Weyer v. Beach, 14 Hun, 231; Belknap v. Bender, 75 N. Y. 446; Brown v. Weber, 38 id. 187.)

If it should turn out that the defendant, as consideration of the ■sale of the Ferry street houses to him, promised to pay the money due from Olmsted to those workmen, he would be liable to them therefor. But that does not appear by the record before us. And no support in the evidence is seen for the recovery of the amount due for the work performed by them prior to the time of the alleged promises. This question was raised by exceptions to the charge, and by refusals to charge the jury as requested.

The fact that Olmsted made a general assignment for the benefit of his creditors to the defendant has no essential bearing upon any question for the purposes of this review.

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

Dwight, P. J., Lewis and Haight, JJ., concurred.

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


author: Bbadlet, J.:

text:
    Lovina C. Collins, Respondent, v. Thomas Robinson, Appellant.

      Attorney and client — privileged communications.

      A communication made by a client to his attorney, embodied in a request that the attorney impart it to another and which is imparted accordingly, is not a privileged communication which the attorney is precluded from disclosing as a witness upon a trial, as against the client and without his consent (Code Civ. Proc. §§ 835, 836), on behalf of the person to whom it was so imparted. The attorney is a competent witness to give evidence of the purpose for which such a communieation was made to him, as manifested by the direction of the client to him.-
    Appeal by the defendant, Thomas Robinson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Wayne county on the 21st day of May, 1891, upon a verdict rendered at the Wayne Circuit, and also from an order entered in said clerk’s office on the 26th day of May, 1891, denying the defendant’s motion for a new trial made upon the minutes.

      Thomas Robinson, for the appellant.

      J. W. Iloag, for the respondent.
   Bbadlet, J.:

The action was brought to recover a sum alleged to remain due from the defendant to the plaintiff of the purchase money of a farm and span of horses sold to him by her.

The plaintiff recovered. Prior to and in 1874, the plaintiff had title to the farm. In that year the buildings upon it were destroyed by fire, and the defendant assisted the plaintiff in collecting the insurance money represented by a policy upon them. There were then two mortgages upon the premises, the prior one of $2,500, held by Fanny La Due and the other of $1,500, held by Josephus Collins. One thousand dollars of the money recovered upon the policy of insurance were paid upon the La Due mortgage debt. The defendant, who was an attorney at law, foreclosed the Collins mortgage, bid in the property and took the title. ITe then gave to Josephus Collins his bond, secured by mortgage upon the farm, for the amount due him from the proceeds of the sale. The plaintiff remained in possession of the premises, and the defendant advanced $238 to build a house upon them, which house was occupied by the plaintiff until in April, 1878, when she left the farm.

In 1876 the defendant, desiring to make a loan secured by mortgage on the farm, conveyed it to the plaintiff, and she made her bond, secured by her mortgage on the premises, to the New York Mutual Life Insurance Company, upon which -was obtained a loan of $2,200, the proceeds of which loan’were received by the defendant.

About the same time the plaintiff reconveyed the farm to the defendant. The plaintiff alleges, and such is the effect of the evidence on her part, that the defendant then agreed, in consideration of the conveyance, to pay her six hundred dollars ($600) when he sold the farm. This the defendant by his answer and evidence denied.

He alleged, and his evidence was to the effect, that by the arrangement between the parties he was to account to the plaintiff for what he received for the farm, and to charge her with the amount he had advanced, paid and became liable to pay on account of the premises, and upon the incumbrances upon it and her expenses in that behalf, and to pay to her what, if anything, remained. The defendant sold the farm in 1881.

After the evidence in chief on the part of the plaintiff had been given, the defendant called as a witness George W. Cowles, who testified that he was an attorney and counselor at law. Thereupon the defendant “ offered to show by this witness that the plaintiff went to the witness in 1888 and requested him to request the defendant to meet the witness and look over their accounts, specifying as to the amount paid upon the Collins mortgage, upon the La Due mortgage, and the amount paid to build the house, and that he, in obedience to such request, did make such communication to the defendant.”

The plaintiff’s counsel objected to this as a privileged communication. The objection was sustained and defendant excepted. The statute provides that “ an attorney or counselor at law shall not be allowed to disclose a communication made by his client to him or his advice given thereon in the course of his professional employment ” (Code Civ. Proc. § 835), unless such provision of the statute is expressly waived upon the trial. (Id. § 836.)

These statutory provisions are substantially declaratory of the common law. (Bank of Utica v. Mersereau, 3 Barb. Ch. 595; Benjamin v. Coventry, 19 Wend. 353.)

It may be observed that the evidence so offered was not to prove any conversation between the plaintiff and the witness, further than the request to make to the defendant a communication upon the subject to which it related. Further than that it would clearly be improper to extend the inquiry into any conversation between the plaintiff and the witness which led to such request on her part.

The evidence offered embraced nothing which took place between the plaintiff and the witness beyond what was embraced within the request made by her to be communicated to the defendant, and which, for the purpose of the question, we must assume was transmitted to him pursuant to such request. If this had been done in the presence of both parties by the plaintiff or by her request or direction, it would not, as between her and the witness, be treated as a privileged communication, ( Whiting v. Barney, 30 N. Y. 330; Britton v. Lorenz, 45 id. 51.)

And the same rule would seem applicable to the case where the attorney receives the communication from the party, with request and intent on the part of the latter that he impart it to another, nad he does so pursuant to the request, and the latter seeks to prove it. (Rosseau v. Bleau, 131 N. Y. 177.)

In such case and to that extent it cannot be treated as confidentially made to the attorney. The express purpose of it is otherwise. (Matter of McCarthy, 28 N. Y. St. Repr. 342, 344; Ripon v. Davies, 2 Nev. & Man. 310; Griffith v. Davies, 5 Barn. & Ad. 502; Shore v. Bedford, 5 M. & G. 271.)

For the purpose of the question raised by the exception there is no force in the suggestion that the evidence of the attorney is not permissible to prove the fact upon which the admissibility of the evidence of the communication made to him was dependent. He was a competent witness to give evidence of the purpose for which it was so made as manifested by the direction of the plaintiff to him.

The evidence thus offered and excluded was pertinent to the issue presented by the pleadings, and to which the conflicting evidence of the parties related. It cannot, therefore, be said that its exclusion may not have been, prejudicial to the defendant. The exception was well taken.

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

Lewis and Haight, JJ., concurred.

Judgment and order appealed from reversed- and new trial ordered, with costs to abide the event.


text:
    Auburn Button Company, Appellant, v. Philip L. Sylvester, Respondent, Impleaded with E. Delevan Woodruff and J. Herman Woodruff.

      Notice of a conflicting title, imputed to an intending purchaser having knowledge of facts sufficient to put him upon inquiry — purchase of a patent — notice of a prior unrecorded assignment.

    Where there is some title or interest in conflict with that which a person is proceeding to purchase, and he has knowledge of facts sufficient to put him upon inquiry as to the existence of such title or interest, he is chargeable with notice of it.
    The presumption of notice arising from the possession of knowledge sufficient to put him upon inquiry may be repelled, however, by the purchaser showing that he has diligently and duly pursued the inquiry and been unable to ascertain that any title or interest in conflict with that which he is seeking to obtain exists.

      On the formation of a corporation, as successor to the manufacturing business of a, firm, the firm assigned to the corporation a patent belonging to the firm covering machines which had been and which continued to be used in the business. This assignment was not recorded, and some years after it was executed one of the members of the firm made an assignment of the same patent, in the name of the firm, to a person who had been in the employ of the firm until the organization of the corporation and thereafter in the employ of the corporation, and who was cognizant of the fact that the machines by which use was made of the patent in the business were in the possession of and used by the corporation from the time of its organization.

      Meld, that the grantee of the later assignment had knowledge of facts sufficient to put him upon inquiry as to the prior unrecorded assignment to the corporation, and must, in the absence of evidence to the contrary, be deemed to have notice thereof;
    And, hence, that he was not entitled to ft preference over the corporation under the statute of the United States (U S. R. S. § 4898), which provides that an assignment of a patent shall be void “ as against any subsequent purchaser or mortgagee for a valuable consideration without notice, unless it is recorded in the patent office within three months from the date thereof ”
    Appkal by tlie plaintiff, the Auburn Button Company, from a judgment of the Supreme Court, entered in the office of the«clerlc of Cayuga county on the 25th day of December, 1892, dismissing the complaint upon the merits, upon a decision of the court rendered after a trial by the court at the Cayuga Special Term.
    The action was brought to restrain the defendant Sylvester from selling or incumbering certain letters patent issued in 1882 to the defendants, E. Delevan Woodruff and J. Herman Woodruff, and by them assigned to the plaintiff in 1883. The improvement covered by the letters patent was useful in the manufacture of buttons from plastic material. This was within the business in which the defendants Woodruff were engaged at the time the patent was issued to them. Their firm name was Woodruff Brothers, and they were in 1883 succeeded in the business by the plaintiff, a corporation then created and organized for that purpose.
    The defendant Sylvester claims title to the letters patent by virtue of an assignment made to him in April, 1891, by the defendant E. D. Woodruff, in the name of Woodruff Brothers.
    The defendant Sylvester alone defended.

      W. E. c& F. E. Tlnghitt, for the appellant.

      E. G. Aiken, for the respondent.
   Bradley, J.:

Tbe claim of preference for the assignment made to the defendant Sylvester in April, 1891, over that made to the plaintiff in 1883, is founded upon the fact that the latter had not been recorded, and by force of the statute, which provides that Every patent or any interest therein shall be assignable in law by an instrument in writing . * * * an assignment, grant or conveyance shall be void as against any subsequent purchaser or mortgagee for a valuable consideration without notice, unless it is recorded in the Patent Office within three (3) months from the date thereof.” (U. S. R. S. § 1898.)

The view taken of the case is such that for the purposes of this review it is necessary to consider no question other than that whether or not the defendant was chargeable with notice of the assignment of the patent to the plaintiff at the time he afterwards took the assignment made to him. lie went into the service of the defendants Woodruff in 1877. and continued in their service until in March, 1883, when the plaintiff was incorporated and organized. He then went into its service and continued there until after its leviable property was sold by the sheriff, by virtue of an execution issued upon a judgment against the plaintiff, which sale was prior to April, 1891.

When the plaintiff was organized it became the successor of Woodruff Brothers in the business. They and Paul C. Woodruff were the corporators. The property incident to the business, including the letters patent, was then transferred to the plaintiff. The assignment to it of the patent was by a separate instrument, made March 9, 1883. The defendant Sylvester was advised . of the organization of the plaintiff, understood that it was the successor of Woodruff Brothers in the business, and as such he went into its service. He was also cognizant of the fact that the machines, by which use was made of the patent in the business, were in the possession of and used by the plaintiff from the time of its organization.

It seems quite clear from the evidence that the defendant had knowledge of facts sufficient to put him upon inquiry as to the previous transfer of the letters patent by Woodruff Brothers, to whom they were issued.

The evidence on the part of the plaintiff that the defendant was informed by Woodruff of the assignment of them to the plaintiff is not to be considered upon the question, because it is in conflict with the evidence given by the defendant. He testified that about the time the button company was formed he was asked by J. H. Wood-ruff to take stock of the company for the note he held, which had been given him by Woodruff Brothers for the patent, and he declined to take the stock; that about the time of the sale, and which he thinks was on the morning of the day the sale was made by the sheriff of the property of the company, he saw the notice of the sale and then said to Paul 0. Woodruff, who was present and the president of the company : “ Woodruff, the patents are not in this (notice),” and the latter said “ No,” and made no further reply; that he called Woodruff’s attention to the fact that the patents were not in the notice of sale because he (defendant) was interested in the patents and “ wanted to see where they were going, what was going to be done with them. He made no explanation to me why the patents wasn’t in the notice of sale ; none whatever ; I gave him none. I asked him that question simply because I wanted to know whether the patents was going to be sold or not, there; ” that some time after the sale he asked J. H. Woodruff, “Who owns the patent,” and that he answered, “ I don’t know.” He further testified that he did not ask him if Woodruff Brothers had assigned the patent to the button company; “ Nothing of the kind ; never asked him that question.” He afterwards had an assignment from Woodruff Brothers to himself drawn up, and at his request it was executed by E. D. Woodruff in the name of Woodruff Brothers by him, after inserting in it that the firm of Woodruff Brothers had been dissolved, and that the assignee Sylvester was to save him “ harmless from any suit or other liability growing out of this assignment.”

He does not state wliat inquiry he made of E. D. Woodruff on the subject of the title, or that he did or did not receive any informa^ tion from him about it. His testimony of the interview with him was: “ I think I next made inquiry in reference to the title to this patent of E. D. Woodruff; * * * I said to him I had inquired of J. H. Woodruff about this patent; had asked him to resign the right to me to use it, and had been unsuccessful; that he had evaded my questions as to who owned the patent.”

By reference to the evidence of J. H. Woodruff it appears that he testified that the defendant came to him and inquired if he could not get the right to use the patent for himself, and the witness replied, “ That that could only be given by the plaintiff.”

The defendant had the position of superintendent for the plaintiff while lie was in its service, and assisted in working the patent machines. It was quite reasonable tor him to suppose that the company was using it pursuant to some right or title derived from Woodruff Brothers, its predecessor in the business, and it appears by the remark made by him when he saw the sheriff’s notice of sale that he ivas apprehensive that the plaintiff had title to the patent or some interest in it. The answer which he says ivas given by J. II. Woodruff to the inquiry as to who then owned the patent, that he did not know, ivould seem to have indicated that it was not then owned by Woodruff Brothers, for if it had been, he could not well have said he did not know. The answer would reasonably seem to have led to the further inquiry whether they had assigned it, and to whom, if the inquirer was faithfully in pursuit of information upon the subject.

The notice with which the facts put the defendant upon inquiry, was, that Woodruff Brothers had assigned the patent, and yet it seems that the defendant omitted to make any inquiry to ascertain what the fact ivas in that respect.

The doctrine applicable to the subject is such that when there is some title or interest in conflict with that which a person is proceeding to purchase, and he has knowledge of facts sufficient to put him upon inquiry as to the existence of such title or interest, he is chargeable with notice of it. In such case the presumption is either that be has made the inquiry and ascertained such prior right, or 'that he has been guilty of such negligence as to deny to him the character of a lona fide purchaser.

The question is, in some sense, one of good faith on his part. He may repel the presumption by showing that he has diligently and duly pursued the inquiry, and been unable to ascertain that any such title or interest in conflict with that which he is seeking to obtain, exists. (Williamson v. Brown, 15 N. Y. 354; Ellis v. Horrman, 90 id. 466.) This the defendant failed to give evidence tending to prove. The fact that Woodruff Brothers .had several years before assigned the patent to the plaintiff, was that in respect to which the defendant was, by the circumstances within his knowledge, put upon inquiry. And it would seem that if lie had in good faith been, seeking information in that respect, he would have made an inquiry necessarily calling for it as to that fact. His omission to do so seems somewhat significant, and, to say the least, was such a want of reasonable diligence as to permit the presumption to remain effectual against him, and to require the conclusion that he was charged with notice of such prior assignment. As the case as settled represents that it contains all the evidence of the trial pertinent to questions on this appeal,” the record does not permit the inference that any further evidence essential to the question here considered was given on the trial.

Eor these reasons the judgment should be reversed and anew trial granted, costs to abide the final award of costs.

Dwight, P. J., Lewis and Haight, JJ\, concurred.

Judgment appealed from reversed and new trial granted, with costs to abide the final award of costs.


text:
    Richard W. Evans and Anna S. Evans, Respondents, v. The Keystone Gas Company, Appellant.

      Destruction of shade trees by gas leaking from a main — evidence—measure of damages.

    In an action brought to recover damages from a gas company for the destruction of shade trees on the plaintiff’s premises near a village street, alleged to have been caused by the defendant’s negligence in permitting gas to leak from the street main between the time of the introduction and the repair of a street gas main, the plaintiff was permitted to show that trees of the same kind on the same side of the street were, during the same period, for a considerable distance from his premises, affected in like manner.

      Meld, that this evidence was competent as bearing upon the cause of the injury to the plaintiff’s trees.

      Semble, that the rule of damages in such a case is the difference in value of the plaintiff’s premises with and without the shade trees in question.
    Appeal by the defendant, the Keystone Gas Company, from a judgment of the Supreme Court, entered in the office of the clerk of Cattaraugus county on the 4th day of June, 1892, upon a verdict in favor of the plaintiffs, rendered at the Cattaraugus Circuit, and also from an order made on the 20th day of May, 1892, denying the defendant’s motion for a new trial made upon the minutes.

      Charles S. Cary, for the appellant.

      Fred. I. Eaton, for the respondents.
   Bradley, J.:

The action was brought to recover damages alleged to have been sustained by the plaintiffs in the injury to their premises situated on the east side of First street in the village of Olean by the negligence of the defendant, in that the defendant permitted its gas main laid on that street to leak, and thereby destroyed three shade trees of the plaintiffs on such premises and standing near the street. The defendant, to supply the inhabitants of that village with gas light and to light that street, had, prior to 1886, introduced into it natural gas, and in that year, to increase the supply, placed beneath the surface there an eight-inch main pipe from which were extended lateral pipes as they were wanted for the purpose of lights.

In front of the plaintiffs’ residence and along near the street, were three maple shade trees which had been there fifteen years and had attained the size of about fifteen inches in diameter.

They are represented to have been fine thrifty trees, not only ornamental, but useful to the plaintiffs’ premises (consisting of a dwelling house and lot) as a sh.ade in the summer season. Two of those trees died, and the life of the other one was substantially destroyed, after such larger main was put into the street. The plaintiffs charged, and evidence on their part tended to prove, that gas quite abundantly leaked from the main from the time it was placed there until it was repaired in 1889, and in consequence of such leakage vegetation along the street was to some extent destroyed, and to the like cause was attributed the injury to and destruction of the shade trees in question. The evidence permitted the conclusion that such was the cause of the injury complained of, and that it was .attributable to the negligence of the defendant in its failure to put and keep its main pipe along First street in proper condition.

The question as one of fact was fairly submitted to the jury, and they found against the defendant, and their verdict is supported by the evidence. It appeared that maple shade trees on the same side of the street were during the same period for a considerable distance from the plaintiffs’ premises affected in like manner. There was no error in the reception of the evidence on that subject, as it also tended to prove that gas leaked from the main pipe along that entire distance. It was in some sense illustrative of the effect of escaping gas upon vegetation, and in that view was competent as bearing so far as it might upon the cause of the injury to the plaintiffs’ trees. The inquiry proceeded further by evidence to tlie effect that after the leakage of this main pipe was stopped by repairs in 1889, the difficulty with vegetable life and growth along the street ceased, and while before then for several years the plaintiffs were unable to make young trees along there survive, thereafter they lived and were thrifty.

The exceptions to the reception of evidence bearing upon the question of damages were not well taken. It may be assumed that the rule in that respect applicable to this case was the difference in value of the premises with and without those shade trees. (Dwight v. E., C. & N. R. R. Co., 132 N. Y. 199.)

The evidence upon the subject mainly was within that rule.

There was, however, in the early stage of the trial an inquiry made on the part of the plaintiffs calling for an estimate of the value of the trees destroyed on the plaintiffs’ premises.

The objection to the reception of the evidence was not placed upon a tenable ground, and for that reason the exception requires no consideration.

None of the exceptions appearing in the record have the support of error in the ruling to which they were taken.

The judgment and order should be affirmed.

Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.


text:
    Charles Jones, Plaintiff, v. Orin S. Bacon, as Surviving Executor, etc., of James McKechnie, Deceased, Defendant.

      Statute of Frauds — a promise of indemnity to the indorser of the note of a third, party is an original undertaking — release of the promisor by the release of the indorsees remedy against the maker of the note.

    A promise to indemnify the promisee against the consequences of the liability which might arise out of the relation of indorser, by reason of his indorsement Of the note of a third party at the request of the promisor, not being made to the creditor of the maker of the note, the principal debtor, aud not being available to the creditor as security for the payment of his debt, and the consideration for such promise being the one of harm to the promisee moving between the parties to it, is an original undertaking, and, hence, is not within the provision of tlie Statute of Frauds that “ Every special promise to answer for the debt, default or miscarriage of another person ” shall he void unless in writing and subscribed by the party charged therewith.
    The consideration of harm to the promisee, moving between him and the promisor, is sufficient to support such an original promise of indemnity.
    Such a promisor of indemnity to the indorser of the note of a third party is entitled to he subrogated, on reimbursing the promisee for what ho may have been compelled to pay by reason of his indorsement, to any remedy which the promisee may have against the maker of the note arising out of the relation of indorser, and the extinguishment of that right of subrogation by the promisee, by voluntarily releasing the maker of the note from the liability to the promisee which would otherwise exist by reason of his indorsement, will discharge the promisor from liability to the promisee upon the promise of indemnity.
    Motion by tlie plaintiff, diaries Jones, for a new trial on exceptions taken at tlie Ontario Circuit, and ordered to be beard at the General Term in tlie first instance, after a nonsuit directed by the court on tlie Utli day of November, 1892.

      WilUmi II. Smith, for the plaintiff.

      Henry M. Field and Franlc Hice, for tlie defendant.
   Bradley, J.:

Eor some time prior to April, 1885, the notes of Sherman Kings-bury, indorsed by tlie-plaintiff, had been discounted by tlie banking firm of McKechnie & Co., at Canandaigua, N. Y., composed of James MeKeclmie, Alfred Denbow aud Jessie McKechnie. Kings-bury made Ms note of date April 1, 1885, for $15,000, payable, to tbe order of plaintiff sixty days after its date at the banking house of McKeclmie & Co., and as the evidence tended to prove, the plaintiff upon the request of Kingsbury refused to indorse the note, and thereupon the defendant’s testator said to the plaintiff that he wanted him to indorse the note and any renewals of it or notes that might be necessary in Kingsbury’s business; that if he would do it he, the plaintiff, would never have them to pay or any trouble with them, and that he, McKeclmie, would take care of such note or notes. The plaintiff then indorsed the note, which was taken and discounted by that banking firm, and the proceeds of the note placed to the credit of Kingsbury.

In March, 1886, the plaintiff indorsed another note for $8,000 made by Kingsbury, payable at the same place, and it was there taken and discounted for the benefit of Kingsbury and the proceeds used in his business.

This note, by renewals and some addition, was, on June 27, 1888, increased to $12,000, and the $15,000 note before mentioned was, by renewals and some additions, increased to $20,000 on July 12, 1888. Those and the intermediate notes were in like manner made by Kingsbury, indorsed by the plaintiff, and payable at the same place. And those two notes were in like manner renewed up to January, 1889, when the plaintiff, at the request of the defendant’s testator and upon the promise that he should be kept harmless, gave a mortgage upon his real estate to secure the $12,000 and $20,000 notes. The mortgage was afterwards foreclosed and the premises covered by it sold pursuant to decree to that effect. And thereafter this action was brought, founded upon the alleged promise of the defendant’s testator to thus indemnify the plaintiff against the consequences of the liability he assumed by the indorsement of them.

The question arises upon the exception to the ruling at the Circuit by which the plaintiff was nonsuited, and in support of that result it is contended that the promise of the defendant’s testator was within the provision of the statute that “ Every special promise to answer for the debt, default or miscarriage of another person,” unless in writing and subscribed by the party charged therewith, shall be void.

The promise was in terms an undertaking of the promisor to indemnify the plaintiff and save him harmless from liability upon his indorsement; and it must here be assumed that his indorsement was made by reason of and pursuant to such promise.

The debt represented by the notes was the debt of Kingsbury, the maker of them, and until his default in payment the plaintiff could not be charged upon his indorsement. The promise was not in writing. It was not made to the creditors nor was it one in which they were concerned. It was made to and in behalf of the plaintiff alone and was available to him only.

Whether in such a case the promise is within the Statute of Frauds seems to have been the subject of divers adjudications in the courts of this country and England.

The leading case in this State on the subject as to what promises to pay the debt of another are and are not Avithin the statute is Leonard v. Vredenburgh (8 Johns. 23). There Chief Justice Kent, by Avay of illustration, divided cases into three classes:

First. Cases in which the guaranty or promise is collateral to the principal contract, but is made at the same time, and becomes an essential ground of the credit given to the principal debtor.

“ Second. Cases in which the collateral undertaking is subsequent to the creation of the debt, and Avas not the inducement to it, though the subsisting liability is the ground of the promise without any distinct and unconnected inducement.

“ Third. When the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving betAveen the newly contracting parties.” The first two classes were held to be within the statute, the third one not so.

In Mallory v. Gillett (21 N. Y. 412), the promise was made by the defendant to the creditor, and was held to be within the Statute of Frauds. The subject Avas there very fully considered by Chief Judge Comstock, and while he in the main approved the views of the court in Leonard v. Vredenburgh, he, referring to such third class, gave Chief Justice Savage the credit of greater precision in Farley v. Cleveland (4 Cow. 437), in the statement of the proposition that “ In all these cases (referring to that class) founded upon a new and original consideration of benefit to the defendant, or harm to the plaintiff, moving to the party making the promise, either from the plaintiff or original debtor, the subsisting liability of the original debtor'is no objection to a recovery.”

He, therefore, held it necessary to the completeness of the definition of cases coming within the third class before mentioned that the new or original consideration move to the promisor. Amongst the classes of cases there stated by him as not within the statute-was, “ 1. "Where there was no original debt to which the auxiliary promise could be collateral; for example, where the promiseewas a mere guarantor for the third person to some one else, and the promisor agrees to indemnify'him, or where his demand was founded in a pure tort.”

The promise in question in the present case seems to come within that proposition. It also has the support of Chapin v. Merrill (4 Wend. 657), where the promise of the defendant to indemnify and save harmless the plaintiff from the consequences of his agreement to pay a mercantile firm for goods delivered to another who was the-purchaser, was held to be an original and not a collateral undertaking.

The views so expressed by the chief judge in Mallory v. Gillett had the approval of the court in Sanders v. Gillespie (59 N. Y. 250-252), and in Tighe v. Morrison (116 id. 263). And our-attention is called to no case in the Court of Appeals in which the. doctrine of Chapin v. Merrill is disapproved.

But Kingsley v. Balcome (4 Barb. 131), and Baker v. Dillman (21 How. 444; 12 Abb. 313) are not in harmony with it. The latter of those two cases adopts and follows the former, and in both Green v. Cresswell (10 Ad. & El. 453) is cited as authority.

The latter case, upon the facts and the principle applied to them, tended to support the conclusion reached in those two eases. The doctrine of that case was afterwards disapproved, and it was overruled in Reader v. Kingham (13 C. B. [N. S. ] 344) and in Wildes v. Dudlow (L. R. [19 Eq. Cas.] 198).

In Carville v. Crane (5 Hill, 483, 486), the remark was made that a liberal construction of the statute might be made to embrace the. promise in Chapin v. Merrill, but the two cases were plainly distinguishable and were so treated. The promise of the defendant in the Ca/rville case was made to the creditor and was clearly within the statute.

In Barry v. Ransom (12 N. Y. 462), the plaintiff, at the request: of the defendant’s intestate and upon the promise of indemnity, joined with the latter and others as surety in the bond of one Leyden, the principal. The court held that the promise was not within the Statute of Frauds, and Judge Denio expressed the opinion “ that where a person is about to become bound by writing tq answer for the default of a third party, and he procures another to be bound with him in the same obligation by promising to indemnify him, that this is an original promise and not within this branch of the Statute of Frauds.”

In such case the consideration moving to the promisor may be deemed beneficial to him. But no such distinction was observed in Green v. Cresswell in the criticism and disapproval of Thomas v. Cook (8 Barn. & Cress. 728), where such was the relation of the defendant. This latter case was afterwards restored as authority without reference to such distinguishing feature in the promise arising out of the relation of the promisor to the subject of it, so far as appears in Wildes v. Dudlow (supra).

In Ohio, such relation of the indemnitor is held essential to save the promise from the Statute of Frauds. (Oldham v. Broom, 28 Ohio St. 41; Ferrell v. Maxwell, Id. 383; 22 Am. Rep. 393.) Held otherwise in some other States. (Vogel v. Melms, 31 Wis. 306; 11 Am. Rep. 608; Anderson v. Spence, 72 Ind. 315; 37 Am. Rep. 162.)

The case of Chapin v. Merrill was cited with approval in both opinions in Mallory v. Gillett, and the chief judge there said of it that the promise was not within the statute because it was not collateral to any debt or liability of a third person to the promisee. The third person proposed to contract a debt with fourth parties and the plaintiff agreed to guarantee that debt, the defendant at the same time agreeing to indemnify him for so doing. The plaintiff might have invoked the statute if his guaranty had not been in writing. But the defendant was his indemnitor merely. It was a contingent liability, of necessity original, because there was nothing to which it could be collateral. There was no debt of the third person to the plaintiff.”

This is a very clear statement of the nature and effect of the promise in the Ohapin case, and the reason why it wras an original undertaking of the defendant there, which applies with equal force to the question arising upon the promise in the present case. The chief judge also criticised Kingsley v. Balcome and the definition there given of a new original consideration as too narrow. And it may be added that such definition given in the Kingsley case was applicable to a promise by one person to pay the debt of another.

In the present case, the promise was not in the nature of a guaranty of the payment or collection of the notes, nor was it a promise which, if in writing, would have been available to the creditor. It was a promise to indemnify the plaintiff against the consequences of the liability which might arise out of the relation of indorser he assumed to the notes referred to.

The case of Chapin v. Merrill still stands as authority in this State. Within the doctrine of that case and the principles enunciated in Mallory v. Gillett and in some other cases to which reference has been made, the promise in question was an original undertaking, and the consideration was one of harm to the plaintiff moving between the parties to it. And according to the weight of judicial authority, the promise was not collateral in the sense applicable in that relation to the term, because it was not made in behalf of the creditors, nor did its import or purpose permit an appropriation of it by them as security for the payment of the debt. (Johnson v. Gilbert, 4 Hill, 178; Tighe v. Morrison, 116 N. Y. 263; Reader v. Kingham, 13 C. B. [N. S.] 344; Aldrich v. Ames, 9 Gray, 76.)

In White v. Rintoul (108 N. Y. 222), the promise was to the creditor to pay a subsisting debt, and was clearly within the statute. The reasoning of Judge Finch had relation to a promise of a third person to pay the debt of another. In that case, as there held by the judge, the consideration must not only move to the promisor but must be beneficial to him to relieve it from the operation of the statute, and thereby he, in practical effect, as between him and the promisee, becomes the principal debtor. It was in that view he criticised the definition as given in Leonard v. Vredenburgh of the class of cases not within the statute, and approved the modification of it in Mallory v. Gillett to make it more specific. The views of the court were similar in Brown v. Weber (38 N. Y. 187), where Judge Grover, in referring to the statute, said : “The language shows that the test to be applied in every case is, whether the party sought to be charged is the principal debtor primarily liable, or whether he is only liable in case of the default of a third person; in other words, whether he is the debtor, or whether his relation to the creditor is that of surety to him for the performance by some other person of the obligation of the latter to the creditor.” There it may be observed the test was applied to the promise of a third person to pay an existing debt.

The same may be said in Ackley v. Parmenter (98 N. Y. 425).

There the promise of the defendant was made to the creditor to pay the debt of another to him, and it was held that the undertaking was collateral, and that “ to take the case out of the statute there must be a consideration moving to the promisor, either from the creditor or the debtor. It must be beneficial to the promisor ” to impart to it the character of an original undertaking.

In the case at bar the promise of the defendant’s testator was not to the creditor or principal debtor. lie was, by his undertaking, placed in no relation to either. It was not, therefore, collateral to the contract between them representing the existing debt, nor to any debt of a third person to the plaintiff. The promise was that of mere indemnity to the plaintiff alone, founded upon a new and independent consideration of harm to him moving between him and the promisor and to the latter.

These views lead to the conclusion that the promise of the defendant’s testator was an original undertaking, and not within the Statute of Frauds, and that it had the support of a consideration, and was, therefore, valid.

The further defense alleged arises from the fact that the plaintiff, by an instrument under seal to that effect, released and discharged Kingsbury, the maker of the notes, from liability to him which otherwise would exist by reason of his indorsement of the notes. The relation of indemnitor to the plaintiff, assumed by the defendant’s testator, was such that he would become liable to the latter for an amount equal to that which he, being required to pay as indorser,, should pay upon the notes.

This gave to the indemnitor an interest to protect by paying the notes. lie, therefore, had the right, on the default of the maker, to pay them, and on the plaintiff becoming charged with liability as indorser, to pay the notes and become subrogated to the rights of the creditors as against the maker. This McKechnie did not do, and, therefore, acquired no'such right. And so far as payment was made by the plaintiff, or from the proceeds of his property, to the creditors upon the notes, the right of subrogation was his and not available to his indemnitor, and the only right the latter can in that respect take on payment to the plaintiff of the damages sustained by him, by reason of the breach of the contract of indemnity, must come through the plaintiff and be founded upon his relation of indorser.

The right of subrogation is not necessarily dependent upon the conventional relation of principal and surety and in behalf of the latter, but when a person is compelled to pay a claim or has legitimately an interest to protect in so doing, he is entitled to his remedy against the person primarily liable to pay it. In other words, when a person is liable to be charged with that which primarily ought to be borne by another, the former is entitled to the equity of a surety, and on payment to the remedies of the creditor against the person so primarily liable. (Wilkes v. Harper, 2 Barb. Ch. 338 ; Mathews v. Aikin, 1 N. Y. 595; Cole v. Malcolm, 66 id. 363.)

That principle is applicable to the present case. Although the indorsement of the notes by the plaintiff was not made at the request of Kingsbury, the maker, his relation upon the paper for the purposes of remedy on payment of it by him ivas that of surety to the maker. (Farmers’ Bank v. Blair, 44 Barb. 641; Newcomb v. Raynor, 21 Wend. 108.)

The liability with which the plaintiff, as indorser, was charged to the holders of the notes was the consequence of the default of the naker. • A recovery by him against the defendant upon the undertaking of indemnity of the amount he has been compelled to pay on Biccount of his indorsement would not entitle the defendant, on payBnent of such recovery, to subrogation in the place of the creditors Bvho held the notes against Kingsbury, the maker. That was the Bight of the plaintiff if he had chosen to take it. The equity of the Blefendant in that respect, on reimbursement of the plaintiff, would Be only to take the remedy which the latter may have had against ■he maker, who was the primary debtor. This equity of the defendant and the consequent remedy the plaintiff has defeated by his Belease of Kingsbury.

While the defendant could not require the plaintiff to proceed against the maker of the notes, and as between the parties to this action, the plaintiff may, for the purpose of his remedy, have treated the defendant as primarily liable to him, that did not deny to the defendant the right to take through the plaintiff, on reimbursement of him, any remedy he had against Kingsbury arising out of his relation as indorser of the liotes.

The voluntary extinguishment of that right by the plaintiff is an effectual defense to his action.

It follows that the motion for a new trial should be denied and that the defendant should have j udgment.

Lewis and Haight, JJ., concurred.

Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant upon the verdict.


text:
    Alvin P. Chapin, Appellant, v. Henry C. Overin and Anthony Markert, Respondents.

      Change of venue — convenience of witnesses — requisites of the moving affidavit.

    It is an essential part of the defendant’s affidavit, on which to base a motion for a change of the place of trial on the ground of the convenience of witnesses, that it should state that the defendant has stated to his counsel the facts which he expects to prove by his witnesses, and that his counsel has advised him that his witnesses are necessary and material, and that without the testimony of . each and every one of them he cannot safely proceed to the trial of the action.
    In an action brought in the county of Monroe to recover damages for a personal injury alleged to have been received by the plaintiff through the negligence of the defendants’ servant in running against him with a coach and horses on a street in the city of New York, the defendants moved to change the place of trial to the county of New York, on the ground of the convenience of witnesses. The moving affidavit, made by one of the defendants, which was not aided by the pleadings, failed to allege any statement of the facts to coun-j sel or the advice of counsel, and failed to show any reason for the belief of the! affiant that the proposed witnesses would testify as stated, or to disclose factJ sufficient to enable the court to ascertain therefrom that more than one of thJ proposed witnesses residing in the county of New York were material ancj necessary witnesses. 1

      Held, that the affidavit was too informal and defective to warrant the granting ol the motion. |

      Appeal by the plaintiff, Alvin P. Chapin, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the cleric of Monroe county on the 26th day of April, 1893, granting the defendants’ motion to change the place of trial of the action from the county of Monroe to the county of New York.
    The action was brought to recover damages alleged to have been sustained by the plaintiff by the negligence of the defendants’ servant in running against him with a coach and team of horses on Broadway in the city of New York.
    The answer admitted that the plaintiff received some" slight injuries to his person on the occasion referred to, and put in issue all the other allegations of the complaint.

      Abram Benedict, for the appellant.

      James 8. Thompson, for the respondents.
   Lewis, J.:

It is quite likely that the defendants would have been entitled to an order changing the place of trial to the county of New York, had their papers been prepared in accordance with the well-settled practice and rules of the court upon motions of this character.

The respondents must rely entirely upon the affidavit of the defendant Markert to sustain their order, for the pleadings do not throw any light upon the question.

Markert’s affidavit seems to have been prepared in disregard of pretty much every rule which the courts have found it necessary to ■adopt and enforce in order to guard against imposition in the decision of this class of motions.

That portion of the affidavit which it is necessary to consider is as f ollows:

The place where the injuries are in the complaint alleged to have occurred, and where the plaintiff did actually sustain some ■slight injuries, is at or near the intersection of Broadway and Fourteenth street in the city of New York.

The plaintiff, after he sustained such slight injuries at the said place, charged one Thomas Riley, the driver of said carriage, of having caused such injuries by his negligent driving.'

“Immediately thereafter the said Riley went to a neighboring police station in company with one Gill, a police' officer.

“The plaintiff was there examined by one Dr. Walsh as to the character and extent of said injury.

“ After such examination the plaintiff made a statement as to the cause of the accident, which statement deponent believes was heard by Dr. Walsh, Officer Gill, the said Riley and the officer in charge of said station, whose name is not known to deponent.

“ Deponent further says that the said Thomas Riley, Dr. Walsh, the said Gill, the said officer in charge of said station, and both of the defendants herein, are material and necessary witnesses for the defense on the trial of this cause.

“ That without the testimony of each and every one of said witnesses the defendants cannot safely proceed to the trial of this action; that each and every one of said witnesses resides in the city and county of New York.

“ Deponent expects to prove by said Riley that the plaintiff was not struck by the pole of the coach he was driving, or was struck by the said coach or horses.

“ By the said Gill and said other police officer, that the statements made by said plaintiff at said police station did not charge the defendants’ alleged servant with negligence.

“ By the said Dr. Walsh that the said plaintiff sustained but slight injuries.

“ By the defendants, that they were not copartners at the time of said accident, and that Riley was not employed by the defendants as such alleged copartners.”

The affidavit, it will be observed, fails to state that the defendants had stated to their counsel the facts which they expected to prove by their witnesses. It also fails to state that their counsel advised them that their witnesses were necessary and material, and that without the testimony of each and every one of them they could not safely proceed to the trial of the action.

These are essential parts of an affidavit on which to base a motion for a change of place of trial.

Attorneys are sworn officers of the court.

If, after they had been fully and fairly informed by their client as to what he expects to be able to prove by his witnesses, the attorney advises that they are necessary and material, and that he cannot safely proceed to trial without them, the court act upon such advice. It would be quite absurd to take in the place of such advice the opinion of a party to the action who is not an attorney, and presumably not qualified to determine as to the materiality of evidence.

Courts have held parties to a strict compliance with these requirements.

In Onondaga Bank v. Shepard (19 Wend. 10), the chief justice laid down the following rule: “ On a motion to change the venue, or on opposing such motion, the party making an affidavit is bound to allege that he has fully and fairly stated his case to his counsel, and disclosed to him the facts which he expets to prove by each and every of his witnesses.”

In Carpenter v. Continental Insurance Co. (31 Hun, 78), Learned, P. J., says: “We think it well to hold parties to those forms which have been settled in order that courts may reasonably determine how many witnesses will in fact be required.”

In Noye Manufacturing Co. v. Whitmore (23 Wkly. Dig. 424), Haight, J., says: “ The strict requirements established by numerous decisions as to the contents of affidavits upon motions to change the place of trial are proper, and should not be relaxed, and when the applicant fails to state in his moving affidavits that without the testimony of each and every of the witnesses named he cannot safely proceed to the trial of the cause, as he is advised by his counsel and verily believes, the motion should be denied, except possibly in a case where the affidavit is so full and definite that the court can see that the party could not proceed to trial without the testimony of each witness.”

The pleadings in this latter case were made a part of the moving papers, and from them the court was able to determine the materiality of the testimony of the witnesses named independent of the advice of counsel.

. The parties were held strictly to this rule in Anon. (7 Cow. 102 ; 6 id. 389 ; 3 Wend. 425); Johnson v. Rogers (3 Cow. 14). There is an instructive collection of authorities upon this question in a note to Brittan v. Peabody (4 Hill, 62).

The affidavit also fails to show any reason for the belief of the affiant that the proposed witnesses will testify as stated.

It fairly appears from the moving affidavit that Dr. Walsh will be a necessary witness for the defense.

Allusion is made in the affidavit to a conversation at the police station in New York, but the purport of the conversation is not stated, and, therefore, throws no' light upon the question as to its materiality as evidence.

The affidavit states that the deponent exj>ects to prove by said Riley that the plaintiff was not struck by the pole of the coach he was driving or was struck by the said coach or horses. It is difficult to understand just what the affiant meant by this statement; it can hardly be claimed to negative the allegation that plaintiff was in fact so struck. It is possible that Riley may be an important witness, but the affidavit fails to show it.

As to Gill and the police officer whose name is not given, there is an utter failure to show that they are necessary witnesses.

The plaintiff swears to the materiality of nine witnesses for the defense, all residents of the county of Monroe.

Making due allowance for the proneness of parties to exaggeration in such cases, the affidavit fairly shows the necessity for the attendance of live or six witnesses resident in that county.

The defendants failed, we think, to show that the convenience of witnesses would be promoted-by a change of the place of trial to the county of New York.

We are unwilling to make a precedent by sustaining an order changing the place of trial upon such an informal and defective affidavit. It is quite likely that the attention of the learned judge who decided the motion was not fully called to the imperfections in the affidavit.

The order appealed from should be reversed, with ten dollars costs and disbursements of the appeal, with leave, however, to the defendants, upon payment of the costs of the appeal, to renew the motion upon new papers.

Dwight, P. J., and Haight, J., concurred.

Order appealed from reversed, with ten dollars costs and die-1 bursements, with leave, however, to the defendants to renew the | motion upon new papers on the payment of such costs and! disbursements. I