text:
    RACHEL HOPPOCK and others, Appellants, v. JOHN C. TUCKER and others, Respondents.

      Will—intention — words must give way to—legatees taking as a class or as individuals.

    Where the general scheme of a will shows that the testator intended to treat certain legatees as a class, the fact that the several legatees are specifically named in the bequest, and that the gift is to them “ in equal proportions, share and, sha/re alike,’’ will not have the effect of preventing the intention, to treat them as a class, from prevailing.
    Appeal from a decree of the surrogate of Hew York, made September 9, 1873, in the matter of the final accounting of the executors of the last will and testament of Jacob Hoppock, deceased.
    The testator, after making certain specific bequests, in the seventh clause of his will, directs his executors to divide the residue of his estate (including all legacies which for any reason should fail to take effect, and also a sum set aside as a provision for his widow, in lieu of dower, in case she did not accept it, and if she accepted it, then that sum on her death) into six equal shares. The eighth, ninth, tenth and eleventh clauses of the will are as follows:

      “ Eighth. And one of such equal sixth parts or shares of all my said residuary estates and property, I do give, devise and bequeath unto my son Moses Allen Hoppock. Hinth, one other of such equal sixth parts or shares I do give, devise and bequeath unto my son Larison Hoppock. Tenth, one other of such equal sixth parts or shares I do give, devise and bequeath unto my daughter Caroline Virginia, wife of Dudley M. Ferguson. Eleventh, out of one other of such equal sixth parts or shares I do give and bequeath the sum of $10,000 unto my grandson Edward A. Hoppock, son of my said son Moses Allen Hoppock, and the remainder of the said last mentioned equal sixth part or share of my said residuary estates and property I do give, devise and bequeath, in equal proportions, share and share alike, unto John Campion Tucker, Hubert V. W. Tucker and William Edgar Tucker, the children of my deceased daughter Ann Maria, late wife of John C. Tucker.”
    By the twelfth, thirteenth and fourteenth clauses of said will the remaining two-sixths are given: of one-sixth, two-thirds to his son William Henry Hoppock, and the remaining one-third in trust for the life of Lavinia, wife of Wm. H. Hoppock. The last remaining sixth to his executors, in trust for his daughter Josephine E. Demarcy. In the seventeenth clause he directs: ccIn order that there may be a fair and impartial division of my residuary estates and property aforesaid amongst my children, it is my will, and I do order and direct, that the following charges be made against the respective shares,” etc.
    William Edgar Tucker died before the testator.
    The surrogate, by his decree, awarded the share of William Edgar Tucker to John Campion Tucker, Jr., and Hubert V. W. Tucker, holding that the intention of the testator was that the three last-mentioned persons should take as a class, and that the death of either before the testator would work, in law, a survivorship in favor of the others of that class.

      Joseph A. Welch, for the appellant.
    The general rule is that property given by a will to a plurality of persons as tenants in common, if one died in lifetime of testator, his share becomes intestate estate. (1 Jarman on Wills, 295 ; Roper on Legacies.) The words “ in equal proportions” or “share cmd share alike,” create a severance of the interests. (2 Jarman on Wills, 162; 2 Kent Comm., 351; Westcott v. Cady, 5 Johns. Ch., 334; Right v. Compton, 9 East, 276; Lashbrook v. Cock, 2 Mer., 70 ; Perkins v. Baynton, 1 Bro. C. C., 118; Campbell v. Campbell, 4 id., 15; Bunch v. Hurst, 3 Desaus., 228.) Legatees are to be treated as a class, only when the individuals intended are to he ascertained by contingent events. (1 Jarman on Wills, 295-6.) The designation of the individuals makes them individual legatees. (Downing v. Marshall, 23 N. Y., 373-4.)

      John E; Parsons, for the respondent.
    The intention of the testator must govern. (Barber v. Barber, 3 Myl. & C., 688-697.) The rule, that designation by name makes bequests to individuals and not to a class, not denied, unless a contrary intention appears in the will. (Bain v. Lescher, 11 Sim., 397; Knight v. Gould, 2 Myl. & C., 295.) The whole will must be considered. (Williams on Exrs., 971; Finlay v. King's Lessee, 3 Pet., 346 ; Smith v. Bell, 6 Pet., 68.) The words “m equal proportions, share and share alike," are not important. The Tuckers take as tenants in common. There is no survivorship, unless they take as a class; if they take as a class, it does not matter whether they take by language which makes them tenants in common or joint tenants. (Dooming v. Marshall, 23 N. Y., 366, 373, 374.)
   Davis, P. J.:

The testator, after first making provision for the payment of his debts and funeral and testamentary charges and expenses, and for his widow during her life, and after making certain specific bequests, proceeds to divide the residue of his estate, real and personal, into six equal shares or parts. His language indicates in strong and clear terms his intention that this equal division shall apply to and embrace every remaining portion of his property, including not only the provision for his widow if she does not accept the same in lieu of dower, and the remainder thereof after her decease if she shall accept, but also all legacies which for any reason shall fail to take effect.” There can be no doubt, therefore, but that the division to be made into six equal shares is to embrace the whole residue, for the purpose of carrying out the scheme of disposition contained in the next following provisions of the will. Nor can there be any doubt that the number of his children dictated and controlled the number of shares. The testator had had six children (one of whom was deceased), amongst whom or their families he set about making a distribution of the six parts into which he had directed his estate to be divided. To each of his living children he gives directly, or in trust for his or her benefit, one of such equal sixth parts, carefully making provision for the issue of such child in case of his or her death before the death of the testator. His deceased child was “Ann Maria, late wife of John C. Tucker,” who had left her surviving three children, John Campion Tucker, Hubert Y. W. Tucker and William Edgar Tucker, all of whom were living at the time of the making of the will. Out of the sixth part (which may be said to represent Ann Maria’s share) the testator gives $10,000 to his grandson, Edward A. Hoppock, and the remainder of such sixth part he gives, devises and bequeaths, “ in equal proportions, share and share alike, unto John Campion Tucker, Hubert Y. W. Tucker and William Edgar Tucker, the children of my deceased daughter, Ann Maria, late wife of John C. Tucker.”

William E.. Tucker having died before the testator, unmarried, leaving no descendants, and leaving him surviving his two brothers, the only surviving children of said Ann Maria, the question is whether the share that would have come to William, had he outlived the testator, has lapsed or has survived to his brothers as representing a class, to wit, the children of Ann Maria.

The seventh clause of the will sheds a strong light upon the intention of the testator, both as respects his design to make the division include the whole residue of his property, and to divide it so that his six children should stand upon what he deemed to be an equal and impartial footing. It must be seen, I think, from that provision of the will, that the testator intended that each child, or the family of each child, should take the share given to him or them in such manner that it should pertain to his or her children as a class, and not as separate individual legatees.

The testator says : “ In order that there may be a fair and impartial division of my residuary estates and property aforesaid amongst my children, it is my will, and ! do order and direct that the following charges be made against the respective shares, that is to say, my deceased daughter, Ann Maria, having, during her lifetime, received from me the equivalent of $1,000, that sum, with interest thereon from the day of my death, shall be charged against the share of her children hereinbefore mentioned and specified in the final settlement of my estate.” The testator then proceeds to make like charges against the shares of his other children, so as to accomplish his manifest purpose of giving to each child, whether living or dead, when the will takes effect, what he intends shall be a fair and impartial portion. It is manifest that, in his mind, it was Ann Maria’s share that he was giving to his children, just as it was intended to be Caroline Virginia’s share that, under the sixteenth clause, should go to her children in equal shares, provided she should chance to die before the testator. And so in respect to each of the other children.

It cannot- be questioned that, in giving to Ann Maria’s children so much of the one sixth, parceled out to represent her share, apt words are used, unless their significancy is to be controlled by a manifest intention to the contrary, to constitute the several persons named individual legatees or 'persones, designad®,.

The several children of Ann Maria are named, and the gift is to them “in equal proportions, share and share alike;” and ordinarily, under numerous authorities, those words would be construed to be a gift to each grandchild of a separate and individual interest as tenant in common.

This is the doctrine of the elementary books and of authorities too numerous to be cited. But it is another question whether, where the scheme of the will, in all its various provisions taken together, shows that the grandchildren were not named with such an intention, the accident of naming them must have the effect to prevent the intention, to treat them as a class, from prevailing. If, for instance, the testator had followed the eleventh clause, in which the children of Ann Maria are severally named, by the words “ they take as a class representing their mother,” there could be no doubt that the intention thus expressed would control the ordinary or technical force of any preceding nomination of persons. What the testator has done, seems to me to be as potent a declaration of his intention, though not as clear, as the one supposed.

There is no special force in the words “in equal proportions, share and share alike,” taken by themselves, because if the three sons of Ann Maria had not been named, those words would have had no effect beyond fixing the proportions of the children as a class. They are entitled to no other effect now, for whether the Tuckers take as a class or take as individual legatees, those words have their full force as standards of measurement, which is all they were intended for.

The several names of the children of Ann Maria are followed by words of classification, the children of my deceased daughter, Ann Maria.” They were all of her children. It was her share that the testator was disposing of after dividing his whole residuary estate into six equal shares, representing the number of all his children, and counting the deceased daughter, Ann Maria, as standing for one of the shares; and in consummating his purpose of a fair and impartial division amongst my [her] children,” he specifies the amount that has been received by Ann Maria in her lifetime, which shall be charged “ against the share of her ehilclrenP He nowhere treats that share any otherwise than as he treats the shares of other children, except as he diminishes it by the legacy. It would defeat, as it seems to me, the intention of the testator if the rule of construction claimed by the appellants were applied. The object of all rules of construction is to reach with certainty and precision the intent of the testator. In the absence of countervailing intent, manifest in the will itself, the general rules of the decided cases are to be followed and applied as the best means of determining intent; but where the intent is manifest the legal effect of words must give way before it.

We think the conclusion of the surrogate was right, and that the decree should be affirmed.

Daniels and Lawrence, JJ., concurred.

Decree affirmed.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    PETER F. RANDOLPH, Respondent, v. CHARLES B. PECK, Impleaded, etc., Appellant.

      Note—after dissolution of parrlrwráhvp—considen'ation.

    After the dissolution of a partnership, a note made in the firm name, with the assent of the partners, for a debt due by the firm, is a valid obligation.
    The debt due by the firm, particularly when an extension of the time of its payment is secured by giving the note, is a sufficient consideration therefor.
    Appeal from a judgment entered on the report of a referee.
    The facts in this case are stated in the opinion.

      WilUam H. Arnoux, for the appellant.

      Charles. W. Dayton, for the respondent.
   Daniels, J.:

The complaint set forth the making of a promissory note by the defendants, in all respects the same as the one received in evidence, except that the words in liquidation,” following the signature of the firm name to it, were omitted. This omission was an immaterial variance, and the objection founded upon it properly overruled by the referee. Evidence was given on behalf of the plaintiff, showing that the note was given for the balance of a debt due to the National Butchers’ and Drovers’ Bank, from the firm of Peck, Randolph & Co., of which the defendants had been members. Before the note was made, the firm was dissolved, leaving the debt unpaid. And the evidence tended to show that the firm name was subscribed to the note by one of the other defendants, by the express direction of the defendant, Peck, who alone appeals, and with the concurrence or assent of the third defendant. This was denied by the defendant, Peck, and other evidence was given to sustain his denial. But the evidence on this point was not so decided either way as to prevent the referee’s con-. elusion upon it from being final. It presented a fairly controverted question of fact upon evidence nearly equally balanced, and the court, therefore, on appeal, cannot set aside the conclusion deemed by the referee to be sustained by it.

Evidence was also given, by the defendant, Peck, for the purpose of showing that the plaintiff, to whom the note was transferred from the bank, and his two sons, who were members of the firm of Peck, Randolph & Oo., assumed the payment of debts of that firm. This was derived from the defendant, Peck, and the witness Keller. The former was contradicted, to some extent, upon this subject, by ..an affidavit which he had previously made, and both he and his witness by the evidence given by the plaintiff as a witness at the close of the case. This evidence rendered this point also a simple matter of fact for the referee to decide, and, having decided it in the plaintiff’s favor, the decision cannot be disturbed. There is no such preponderance of evidence against the view he adopted as would justify this court in holding it to be erroneous.

The existing liability of the firm of Peck, Randolph & Co. for the debt, formed a valid consideration for the note, particularly as an extension of the time of payment was secured by means of it. The answer, served on behalf of the defendant, Peck, simply put the note in issue. It was entirely irrelevant to this issue to show the financial condition of the firm of Peck, Randolph & Co , or that the new firm of Randolph Brothers, of whom the plaintiff and his sons, the other defendants, were members, had used any of the funds of the firm of Peck, Randolph & Co., or that the plaintiff was Randolph Brothers’ assignee. The evidence was sufficient to sustain the referee’s conclusion as to the two substantial facts in controversy. They were, whether the note had, in fact, been authorized by the defendant Peck, and whether the plaintiff had become a party to an agreement with him for the payment of Peck, Randolph & Co.’s debts. As to these, the referee decided in favor of the plaintiff, and that entitled him to the judgment recovered by him, as the note was given for a balance owing to the firm, and had been transferred to the plaintiff.

The judgment should be affirmed, with costs.

Davis, P. J., concurred.

Judgment affirmed with costs. •


text:
    JAMES MURPHY and others, Appellants, v. WILLIAM SALEM and others, Respondents.

      Powei' of state courts to enforce demands of a maritime nature—how limited— chap. 482 of 1862.
    In an action brought upon a bond given by defendants, to procure the discharge of an attachment issued against an ocean-bound vessel, under the provisions of chapter 482, Laws of 1862, to enforce a claim for materials furnished and work and labor performed for and toward the building, repairing, fitting, furnishing and equipping of the» vessel, held, that so much of the statute as authorized the proceedings to be taken against the vessel for the recovery of the plaintiffs’ debt, as one for repairs was unconstitutional and invalid, but so much thereof as authorized them to be taken for the recovery of so much of the demand as was for building the vessel was constitutional and valid.
    Appeal from a judgment in favor of the defendants entered upon the report of a referee. The facts are stated in the opinion.
    Beébe, Wilcox da Hobbs, for the appellants.

      James K. Hill, for the respondents.
   Daniels, J.:

• The evidence contained in the case shows that the work and materials for which the plaintiffs claimed to recover upon the trial of this action, were performed and supplied in repairing the steam engine, boilers, propeller and hull of the steamer Circassian, while she laid at the city of New York.

And that it was done and supplied at the request and under the employment of her owner, who then resided in that city.

This. constituted a demand of a maritime nature, as the steamer was then an ocean-bound vessel, and had been, previous to that time, engaged in the business of commerce and navigation.

The repairs, according to this evidence, seem to have been required and made in order to put her in a proper condition for the continuation of that business.

The demand so created was one which could be sued, prosecuted and recovered in the District Court of the United States as a court of admiralty.

It was within the admirality and maritime jurisdiction of that court, as it has been defined and declared by the Constitution and laws of the United States, although no lien existed for its security, as the debt was contracted in the home port of the steamer. And being a demand of that nature within the admirality jurisdiction of the courts of the United States, the State court, within the provisions of section 9 of the judiciary act enacted by congress, could only afford the plaintiffs the remedy supplied by the common law for the recovery of their debt.

That remedy is confined to an action against the person of the debtor, which may be enforced by the seizure of his property in cases where an attachment can appropriately issue in such an action.

But it does not include proceedings against the vessel herself as the object proceeded against, as they are provided for by the laws of this State for enforcing certain demands against ships and vessels.

For that reason, the proceedings taken against the steamer for the recovery of the plaintiffs’ debt, as one for repairs, were unauthorized, although carried on under the authority of the statute of the State.

The State had no power to provide such a remedy, it being of an admiralty, and not of a common-law nature; consequently the bond which was given to discharge the steamer from arrest on the warrant issued under them, and on which this action was brought to recover the debt, was of no binding effect whatever, so far as the demand accrued for repairs.

That is the rule as the courts have now distinctly settled it, and a re-examination of the reasons sustaining it can be neither necessary nor proper.

But the plaintiffs, in their complaint, have alleged, and the referee, in his report, has found, that their demand against the steamer was for building, as well as fitting, furnishing and equipping her.

And so far as that was its character, it was not within the admiralty jurisdiction of the courts of the United States, but was within the province of the legislature to provide such statutory remedy for its recovery as might be deemed just or expedient.

The portion of the demand which was for building the steamer, could be enforced and collected by means of the proceedings provided for by what is known as the ship and vessel law of the State.

And to that extent the bond given for the purpose of securing her discharge from arrest, under those proceedings, was valid and binding.

As the referee has found that the plaintiffs’ demand was for building, as well as repairing, fitting and equipping the steamer, he should have allowed them to recover so much as he found to be due for building, for it appeared that their proceedings were taken for its recovery within the time the statute prescribed for that purpose.

It is very probable, from the evidence contained in the case, that the referee inadvertently found this fact in the plaintiffs’ favor, and that in the end a judgment in the defendants’ favor must be rendered. But that cannot be determined to be the fact in the face of his conclusion to the contrary.

Particularly as the case does not contain the statement that all the evidence given upon the trial was inserted in it.

If the referee has fallen into a mistake in this respect, it can only be corrected by reversing the judgment and directing a new trial.

Davis, P. J., and Lawrence, J., concurred.

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

       1 Conkling’s Admirality, 2d ed., 75,and cases cited in note; id., 78; Ins. Co., v. Dunham, 11 Wallace, 1.

       The Belfast, 7 Wallace, 624 ; Leon v. Galceran, 11 id., 185.

         Bird v. Steamboat Josephine, 39 N. Y., 19; Brookman v. Hamill, 43 id., 554; Vose v. Cockcroft, 44 id., 415 ; Brookman v. Hamill, 46 id., 636.

       Sheppard v. Steele, 43 N. Y., 52.


author: Davis, P. J.:

text:
    THE PEOPLE ex rel. THE PACIFIC MAIL STEAMSHIP COMPANY v. THE COMMISSIONERS OF TAXES OF THE CITY AND COUNTY OF NEW YORK.

      Certiorari—chap. 456 of 1857—assessment under—registration—vessels—legal situs of.

    For the purposes of taxation under the act of 1857, the home port of a vessel is its legal situs. Under the act of 1857, chapter 456, the value of the capital stock of a company determines the amount of assessment, and not the locus or situs of the items of property owned by the corporation.
    A writ of certiorari was issued in this case to bring before the court the proceedings of the tax commissioners in correcting their assessment upon the capital stock of the relator. The relator herein was assessed for personal property, for the year 1873, in the sum of $20,000,000—that being the nominal amount of their capital stock.
    Application was made to the commissioners to have the assessment reduced to $1,736,371.99. The commissioners reduced it to $6,808,927, and refused to make any further reduction. The relator obtained and served a writ of certiorari, issued out of this court, to review the decision of the commissioners. On the return of the proceedings of the commissioners, after hearing counsel for the relator and respondents, it was ordered that it be referred back to the respondents to correct the assessment, by deducting therefrom such amount as they should determine to be the value of. the personal property of the relators situated out of this State. In pursuance of this order, a hearing was granted to the relators by the commissioners, on which it appeared that the company owned a large number of steamers, of which some were registered at the port of New York, and the residue were registered at the port of San Francisco. The commissioners decided that those registered at New York were, for the purposes of assessment and taxation, to be deemed within the State, and disallowed the deductions claimed for the value of the vessels so registered in New York, and corrected the previous assessment by reducing the same to the sum of $4,567,065. This writ of certiorari was issued for the purpose of reviewing the proceedings of the commissioners in making such amended assessment.

      Coles Morris and Michael Cardozo, for the relators. .

      James C. Carte?, for the respondents.

       This decision is reported in 46 How. Pr., 315.

      16 Wallace, 471.

   Davis, P. J.:

We think the proceedings of the commissioners should be affirmed, for the following reasons:

First. The relators are a corporation created by the laws of this State, and have their principal place of business in the city of New York. As a corporation, their residence is in New York. The ships included in the present assessment are registered in the port of New York, under and pursuant .to the United States Registry Act, and the city of New York is, therefore, their home port. They have, and can have, no other, and are not taxable elsewhere. Their situs is at the home port for all purposes of taxation. In the case of Morgam v. Parham, the Supreme Court of the United States have very emphatically settled these questions, and reaffirmed the case of Hays v. The Pacific Mail Steamship Company, under which the relators escaped taxation on these or similar vessels in California.

But it is insisted that under our statute the property of the relators, to be taxable, must bé physically ’witlvm the territory of the State, and therefore it is not enough that its legal situs and ownership are here. We think this position not sound for several reasons. Of course, ships at sea are not in a strict sense within the territory of the State in which they have their home port, but in legal contemplation they are themselves part of the territory (so to speak) of the country of which their owners are citizens or subjects, and they retain all the rights that flow from that fact while engaged in commerce between foreign ports for an undefined period, without any interval of return to the home port; But it is not, perhaps, upon this ground that they are deemed within this State when owned by citizens of the State, for the purposes of-taxation. It is rather because of the peculiar character of the property, which, though it be used abroad in the business of the owner, does not blend with the business and commerce of any foreign State or territory. The business of the relators’ ships in the Pacific is all the while a part of the business carried on in New York under the charter of the company, whence the general management and direction emanate, and to which point returns of all results are made. The ownership and the nature of the business control to establish the home port, where the corporation resides, as the situs of the ships themselves, and in legal contemplation we think the vessels used in the business, which have their home port, under the law, at New York, are within the jurisdiction and territory of the State, within the meaning of the general statute declaring what property is taxable.

But for the decision of the court when this case was before under consideration, we should deem this an immaterial, question.

The relators, under the statute of 1857, are taxable only upon their “capital stock” which is to be assessed at its actual value, with certain exceptions specially named dr referred to in the act. The subject of taxation under this act is the capital stock of the company, and that is, at all times, within the State, although, for the purpose of conducting the business of the company, a portion of its capital may be invested in ships whose commerce is carried on in remote parts of the world. The question to which the commissioners were to look, under the law, was not the locus or situs of items of property owned by the corporation, but of the company itself, and of its capital stock, and they were in New York, both in law and in fact. It would require a special exemption by statute to authorize the commissioners, in determining the actual value of the capital stock of the company, to strike out the value of property, used in the general business of the company, and contributory to the actual value of the capital stock, because its use was outside of the State, and the articles of property were, therefore, not territorially within the State. We think nothing of that kind was in contemplation under the act of 1857, which intended to create a special system of taxation applicable to corporations, and, sub modo, to modify all previous general laws; but this is not, perhaps, an open question.

In respect to the money invested in building the ships in Delaware, nothing was shown before the determination to require them to treat the ships in process of building as the property of the company. Before the motion for rehearing, the commissioners had made and filed with the comptroller their certificate. The application for rehearing came too late; but if it did not, the refusal to rehear is not a subject of review on this application. The proceedings should be affirmed.

Daniels and Westbrook, JJ., concurred.

Proceedings affirmed.

       17 Howard, 596.

       Chap. 456, Laws of 1857.


text:
    ISRAEL R. DALE, Respondent, v. THE BROOKLYN CITY, HUNTER’S POINT and PROSPECT PARK R. R. CO., Appellant.

      Damages—Jiorse railroad—negligence.

    A person approaching a horse-car (which has stopped for him), and, in so doing, crossing another track and attempting to enter on that side, is not necessarily guilty of negligence contributing to injuries sustained by him by reason of the starting of the car after he has got hold of the handle and -has one foot on the step, in which position he is dragged along till struck by a car passing on the adjoining track. It is a question for the jury on the evidence.
    Where the evidence shows that injuries continued to exist up to the time of the trial, the testimony of a physician as to plaintiff’s condition four months after the injury is admissible.
    Appeal from a judgment, entered at circuit on the verdict of a jury, for $2,647 and costs, and from an order denying a new trial.
    This action was brought to recover damages for injuries sustained by the plaintiff, by reason of the alleged careless starting of the defendant’s car while plaintiff, and his wife were in the act of getting upon it.
    On December 23,1867, at six p. m., the plaintiff and his wife, in stormy weather, crossed one track of the defendant’s road, to get upon a car running on the further track, which' had been stopped for them. The plaintiff testified that the car was standing still till he got hold of the handle and had one foot on the step, when it started and dragged him some eight or ten feet; he lost his balance and was struck and injured by a car coming in the opposite direction on the other track, while he was hallooing to have the car stopped.
    The defendant’s counsel requested the court to charge:
    1st. If the jury believe the plaintiff’s testimony, that when he took hold of car 21, the car started, and he was dragged, or had walked, eight or nine feet toward the car coming from the opposite direction, and that his wife was walking either beside or behind him when he was struck by car 31, he was guilty of .negligence which contributed to the accident, and the plaintiff cannot recover.
    2d. That it was negligence, per se, for the plaintiff to attempt to get on the car from between the tracks under the circumstances.
    3d. It was negligence for the plaintiff to be between the tracks under the circumstances of this case.
    4th. That the plaintiff, having attempted to cross one of the tracks and to get on the car from between the tracks of the road, having voluntarily placed himself in a dangerous position, was bound to look out for the car approaching from the opposite direction, and it was negligence for the plaintiff not to do so.
    5th. That there is no evidence of loss of business as a basis for damages.

      John M. Bergen, for the appellant.

      Abbott Brothers, for the respondent.
   Daniels, J.:

The case of Phillips v. Rensselaer and Saratoga R. R. Co. so far differs from the present one, in its leading facts, as to justify the application of a different principle to its decision.

There the plaintiff attempted to go upon the train while it was in motion, and after failing in the attempt, so far as to be thrown off the step, he renewed it, and persisted in doing so, while the speed was increasing, for a distance of about sixty feet, when he came in collision with an object so near the track as to render his projecting body incapable of passing it without injury.

While in the present case, if the evidence of the plaintiff, his wife and his first witness was reliable, the car stopped upon the street, and he, having hold of the handle, with one foot upon the step, was either in the act of assisting his wife to go in, or about to do that, when the car started again, pulled him along, with his hand still on the handle, for eight or ten feet, when he was struck and injured by another car approaching from the opposite direction.

The occurrence took place upon a stormy evening, about as the night had set in.

And it was claimed that the car had stopped, upon a signal being given by the plaintiff and his first witness, to allow himself and wife to approach and enter it from that side of the track.

The evidence given by the driver and conductor of this car, and the driver of the other car, was directly in conflict with that given by and on the part of the plaintiff; but there was no such preponderance either way as to prevent the question, as to what the truth really was, being a proper one for the consideration and decision of the jury.

If they believed the relation given of the facts by the plaintiff and his witness to be correct, as it certainly must be assumed that they did, from the verdict being in his favor, then there was gross negligence, on the part of the driver and conductor of the car he and his wife were about to enter, in starting it in motion again after it had been stopped for that purpose, before that could safely be accomplished.

And if the plaintiff and his wife were upon that side of the car upon the invitation to be implied from the conductor’s stopping the car and opening the door upon that side for the purpose of having them enter it in that way, then he was not necessarily negligent in attempting to do so.

These were facts which the jury could very properly find in his favor from the evidence, and for that reason a nonsuit would have been improper.

The accident happened on the twenty-third day of December, and the evidence of the plaintiff and his wife tended to show that he was severely injured by means of the concussion, and that his injuries continued to exist at the time of the trial.

It was, therefore, not improper for the court to allow a physician, who saw the plaintiff in the following April, to testify as to .what his condition was at that time.

No evidence was given, nor offered, to prove that the diagram presented to the witness correctly represented the locality, condition of the railroad tracks, or the situation of the cars, at the time of the accident, and for that reason there was no error in excluding it from the consideration of the witness to whom it was exhibited.

From the statement, already made of the facts, which the evidence on the part of the plaintiff tended to establish, it is quite clear that the court could not lawfully have charged the first three propositions submitted for that purpose on the part of the defendant, for they substantially required the court to hold that it was negligent for the plaintiff to approach and attempt to enter the car on the side between the tracks. This, under the circumstances, it was not the province of the court to decide, but for the jury, to which it was submitted as favorably as the defendant had any right to require that it should be.

The fifth proposition could not have been correctly charged, because there was evidence that the plaintiff had been prevented from attending to his business by the injuries produced by the collision.

By the fourth proposition, the court was asked to charge that the plaintiff, having voluntarily placejd himself in a dangerous position, was bound to look out for the car approaching from the opposite direction, and it was negligence for him not to do so. This could not properly be held, if, as he stated, he was substantially there by the invitation of the conductor, which might be implied from the circumstance that the car had stopped for him and his wife to enter it from that side, and the door had been opened for them to do so.

The jury had the right, under the evidence, to find those facts in the plaintiff’s favor, and, if they did so, he could assume that the conductor had concluded that the car could be safely entered in that way.

These circumstances carried an assurance with them that a proper opportunity existed for the plaintiff and his wife to enter the car at that time, on that side, without danger from another approaching in the other direction; and if the plaintiff’s evidence was reliable, this was true, for both himself and wife could have safely entered the car before any danger existed from the other, if they had not been prevented from doing so by its being improperly set in motion again before that could be accomplished. Upon this subject the court charged as favorably for the defendant as it could reasonably be required to do.

For the jury were directed that it would be negligent for the plaintiff to attempt to enter the car between the tracks, unless he was substantially invited to do so by the acts of the conductor; and that such negligence would defeat his claim to recover damages for the injury received by him. This seems to be all that the defendant had any right to insist upon, concerning this portion of the case.

The jury had the right, from the evidence given, to conclude that the plaintiff’s injuries were severe and probably permanent. And as they must be presumed to have done so from the verdict which they rendered, the sum of $2,500, the amount qf it was not disproportioned to the damages probably sustained by the plaintiff.

There is nothing in the case from which the verdict can be held to be excessive. There are no other respects in which the defendants claim the case to have been erroneously disposed of at the trial.

The judgment and the order denying a new trial should therefore be affirmed with costs.

Westbrook, J. and Davis, P. J., concurred.

Judgment and order affirmed with costs.

       49 N. Y., 177.

       Walker v. Erie Railway Co., 63 Barb., 260.


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    HENRY T. KIERSTED and others, Respondents, v. THE ORANGE AND ALEXANDRIA RAILROAD COMPANY and others, Appellants.

      Lease—principal, when not hound by covenants of agents— use and occupation.

    The plaintiffs demised certain premises in the city of New York to one Smith, the general agent of the defendants ; in the lease, which was under seal, Smith was described as the general agent of defendants; he executed the lease individually ; the lessee took possession under the lease, and the premises were used to carry on the business of defendants; held, that the covenants in the lease were binding upon the lessee, and not upon the defendants as his principals.
    The defendants were permitted to occupy the premises, upon the undertaking of the agent that the lease should be ratified by the defendants so as to be binding and obligatory upon them; it never was so ratified; held, that they did not thereby become tenants of the plaintiff, nor were they liable for the rent accruing under the lease.
    The lessee occupied the premises for some months after the date of the lease; on or about the third of April, having ceased to be the agent of defendants, he left the premises, which were afterwards used and occupied by the new agent, as a ticket-office for the defendants’ route, until the twelfth of the ensuing February; held, that defendants were liable to the plaintiffs for use and occupation.
    Appeal from a judgment entered in favor of the plaintiffs, upon the report of a referee. The facts are fully stated in the opinion.

      Joseph 0. Jaoleson, for the appellants.
    The lease being a specialty, executed by Smith individually, no cause of action thereon existed against defendants. (Berkeley v. Hardy, 5 Barn. and Cress., 355; Townsend v. Hubbard, 4 Hill, 351; Lincoln v. Crandell, 21 Wend., 101; Jackson v. Foster, 12 Johns., 488; Evans v. Wells, 22 Wend., 324; Bush v. Cole, 28 N. Y., 269; Pumpelly v. Phelps, 40 N. Y., 67.)

      T. C. Gronin, for the respondents.
   Daniels, J.:

The recovery, had in this action, was for the use and occupation of leasehold premises situate in the city of New York, leased by the plaintiffs to the agent of the defendants. The lease was made the first day of November, 1860, and the term created by it extended from that date until May 1st, 1863. The lessee was described in it as general agent of the Virginia and . Tennessee route, comprising the railroads of the defendants. But the premises were leased directly to him, and he alone covenanted to pay the ren t reserved by it. He and the plaintiffs respectively executed it under seal:

By its terms, it was binding solely upon them. And one of the plaintiffs, who was examined as a witness upon the trial, testified that it was understood to be sufficient and binding without any farther signature to it, and -that he did not consider it necessary that any other signature should be added to it, and that he never requested the indorsement of any of the officers of the railroad companies upon it, so that the demise, from the evidence as well as the lease, appeared to have been designed as the lease showed it to have been made. And, as between the plaintiffs and the lessee, the term created by it was effectually vested in him. He occupied the premises under the lease for some months after its date, as the agent of the route, but left them about the 3d or 4th of April, 1861; a day or two before he left, and on the second of that month, another agent, appointed by the defendants, took charge of the premises and remained there. When the lessee was removed and ceased .to-be the agent of the route, the premises were under the control of a clerk in his employment, who remained there until . after the succeeding agent took possession. Before he went into possession, the lessee was removed as the agent of the route, and the second agent was appointed in his place. And he afterward occupied the demised premises in that capacity. How long he occupied them does not clearly appear from the evidence given by him. But no other person seems to have been at any time appointed in his place; and the plaintiff, who was sworn on the trial, testified that the defendants ceased to occupy the premises about the 12th day of February, 1862. The premises were occupied as a ticket-office for the defendants’ route. The plaintiff sworn, testified that the rent was paid by the lessee up to the 1st of May, 1861. And it appeared, by the evidence of the president of the Orange and Alexandria Railroad Company, that his company contributed its proportion of the amount paid. It also appeared that the second agent was paid for his services by the defendants, and that monthly reports of the business were made as late as the month of April, 1861. The plaintiff, who was sworn, testified that he never had any relations with the second agent, concerning the lease; did not ask him for the rent, and received none from him. It appeared from the evidence given by this agent that the officers of the defendants were in New York in April, 1861, for the purpose of arranging certain matters, requiring their attention, relating to the business of the route, and including the lease given by the plaintiffs ; but they left without accomplishing anything, on account of the difficulties which had then arisen between the southern States and the general government, passing through Baltimore, on their return, by the train preceding the April riot in that city. The lessee himself did not return to the demised premises, and died in the year 1864. These are the facts as they appear to be sustained and exhibited by the evidence. The referee reported in favor of the plaintiffs for the rent accruing between the 1st of May, 1861, up to which time it was paid, and the 12th of February, 1862, when they resumed possession of the demised premises, and interest upon the same.

From the manner in which the lease was taken and executed, the covenants contained in it were binding upon the lessee, and not upon the defendants as his principals. They were his covenants and not theirs.

But when he was removed from his position as the defendants’ agent, and the demised premises were taken possession of by his successor, a very different state of things came at once into existence. Then, by their newly appointed agent to take charge of the business designed to be transacted there, they took the actual possession of the leasehold estate. - It seems to have been abandoned by the lessee upon his removal from his position, and the occupancy and control of it taken by his successor for the defendants. This does not appear to have been done by reason of any assignment, in writing, of the lease and term created by it, as the statute required to render it effectual. And for that reason the defendants did not become liable as assignees. But it may be reasonably inferred from what transpired that the lessee allowed the defendants to possess and occupy the premises leased, by his successor, because he had acquired them only for the purposes of his agency, at the expense and for the benefit of the defendants. The occupancy, after that, was simply that of the defendants, and may be presumed from the circumstances to have been permitted by the lessee, and enjoyed by the defendants, upon the understanding that the rent should afterwards be paid by them. And an occupancy with such an understanding would be sufficient to render the defendants liable for úse and occupation under the provisions of the statute of this State, because it would sustain the .conclusion that the defendants had assumed to pay the rent accruing to the plaintiffs during the period of their occupancy. And from that, under the circumstances, a promise to pay could lawfully and properly be inferred, which would sustain a recovery for use and occupation. The action for use and occupation is sustained by a privity of contract, either express or implied. And the contract may be implied from circumstances reasonably warranting the conclusion of its existence. For that purpose, occupancy with the consent of the landlord, or the payment of rent by an under-tenant, will ordinarily be sufficient.

When the premises were abandoned by the lessee, without an assignment or transfer of the. lease, but simply leaving it, as he did, with the rest of the papers appertaining to the business, and the defendants took the actual possession by their succeeding agent, the lease itself was not an element existing between the plaintiffs and them. They undoubtedly assumed possession, because the premises had been rented for them by the lessee, and they would have been liable, as long as they were used by him in their business, to have protected him against his covenants for the payment of the rent— certainly, so far as to reimburse him for whatever he might be compelled to pay for that purpose. And, as they assumed possession when he was discharged, without acquiring a transfer of the lease, it must have been upon the understanding that they would protect the lessee against the plaintiffs’ demand for the rent under his covenant to pay it, by making payment of it themselves.

That, within all the cases, would be sufficient to maintain an action for use and occupation, because a promise to pay it could be implied, from' those circumstances, in the plaintiffs’ favor. That implied understanding, with the occupancy, would be sufficient for that purpose. And the liability of the defendants as occupants, when created in that way, would continue as long as they retained the actual or constructive control and possession of the demised premises. And during that continuance it would not be interrupted by a state of war existing between the general government and the States under whose laws the defendants were created and existed. For as long as they possessed and occupied the premises, they would be bound to pay, notwithstanding such an occurrence.

But while the facts are sufficient to warrant the conclusion that the defendants rendered themselves liable to the action for use and occupation during the continuance of their occupancy, the referee has deduced no such conclusion from them; for, while he has decided and found that they were the tenants of the plaintiffs, he qualified that conclusion so far by the following one (in which he states that they entered .under a lease by indenture of deed, executed by the plaintiffs, on the 1st of November, 1860, to one Smith, their lawful agent, executed by him in his 'individual name, and were permitted to occupy on his undertaking that they would ratify the lease so as to render it binding and obligatory on them, but never did so) as to show that no tenancy existed between the plaintiffs and defendants. These facts show an entry into the possession by the defendants under a special agreement between the plaintiffs and the agent of the defendants, by which the defendants were to render the lease obligatory upon themselves in a particular manner, and that they never afterward did so. They show no liability whatever to the plaintiffs, but an agreement between the defendants and the lessee by which he undertook that they would render themselves liable upon the lease, but afterward failed to do so. Instead of sustaining, it defeats the final conclusion of the referee. For it presents nothing from which a liability can be deduced, but on the contrary shows that nothing of that kind really existed. After the very great labor and attention bestowed by the learned referee upon the case, it'would be a source of pleasure to be able to sustain his conclusion as to the defendants’ liability. But that cannot be done, because the facts, stated by him, do not warrant the result. And besides that, there is great reason for believing that the facts mentioned are not sustained by the evidence.

If the action can be maintained at all, it must be upon the theory that when the lessee was removed he abandoned the possession of the premises with the understanding that they should afterward be occupied and possessed by the defendants; that they should protect him against his liability for the rent by paying it themselves, and that they accepted and occupied the premises by his successor, as their agent, upon those terms. Upon those facts being established and found, no reason now appears why the defendants should not be held liable. But as the case stands, even if the proof will warrant the conclusion that they existed, they have not been found by the referee. For. that reason the judgment must be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., and Westbrook, J., concurred.

Judgment reversed and a new trial ordered, costs to abide the event.

       Taft v. Brewster, 9 John., 334; Stone v. Wood, 7 Cowen, 452; Guyon v. Lewis, 7 Wend., 26; Spencer v. Field, 10 id., 87; Smith v. Van Nostrand, 5 Hill, 419.

       3 R S., 5th edition, 220, § 6.

       3 R S., 5th edition, 37, § 20.

       Porter v. Bleiler, 17 Barb., 149 ; McFarlan v. Watson, 3 Com., 286.

       Corporation of New York v. Dawson, 3 John. Cases, 335; Smith v. Stewart, 6 John., 46; Bancroft v. Wardwell, 13 John., 489 ; Featherstonhaugh v. Bradshaw, 1 Wend., 134; Little v. Martin, 3 id., 219 ; Williams v. Sherman, 7 id., 109 ; Wood v. Wilcox, 1 Denio, 37; Croswell v. Crane, 7 Barb., 191; Hall v. Southmayd, 15 id., 33; Pierce v. Pierce, 25 id., 343 ; Sylvester v. Ralston, 31 id., 286; Thompson v. Bower, 60 Barb., 463 ; Lawrence v. Fox, 30 N. Y., 268 ; Dingeldein v. Third Ave. R. R. Co., 37 N. Y., 575; Hutchings v. Miner, 46 N. Y., 456.

       Hall v. Western Transportation Company, 34 N. Y., 284.


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    JOSIAH JEX, Respondent, v. THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, Appellant.

      Lease—admissions—admissibility of.

    The statements by one member of a board of trustees, not constituting part of the res gesta, but made subsequent to and in explanation of what took place in the progress of the negotiation, are not competent evidence against the board or corporation of which he is a member.
    Appeal from a judgment in favor of plaintiff and an order denying a motion for a new trial on the judge’s minutes.
    The plaintiff rented premises in the city of New York to the defendants, from May 1, 1866, to May 1,1869, at a rent of $2,500 a year. In February, 1869, the plaintiff’s agent wrote a note to Mr. Simonson, the secretary of the board of trustees of common schools for the Twenty-second ward, stating that the rent for the ' premises would be $6,000 per year. Mr. S. laid the letter before the board of trustees, which passed a resolution not to hire the premises, but submitted the matter to the board of education to do as it thought fit. The board of education, June 9,1869, offered to hire the premises for $3,000 per year, which proposition was declined. On July 2, 1869, the board of education notified the plaintiff that they had vacated the premises. This action was brought to recover the rent at the rate of $6,000 a year, alleged to be due August 1, 1869. Considerable evidence, consisting of conversation between the plaintiff and his agent, and the individual trustees and commissioners, was admitted under objection by the defendant. The jury rendered a verdict for plaintiff for $1,802.74.

      A. J. Vanderjjoel, for the appellant.

      A. R . JDyett, for the respondent.
   Davis, P. J.:

It was error to admit the statements and admissions of the individual trustees and commissioners to establish the liability of defendant. Mr. Simonson was one of the trustees of the Twenty-second ward, and secretary of the board of trustees. He was called as a witness for the plaintiff. The plaintiff proved by him, in substance, that in February, 1869, the plaintiff’s agent spoke to the witness about the premises then occupied by primary school No. 17, in relation to hiring the premises; that witness told the agent to put his proposition in writing and hé would submit it to the board. That the written proposition (before read in the case) was submitted and laid before the board, and the board passed a resolution not to hire the premises, but to submit the matter to the board of education. That this was in April, and was the final action of the board of trustees.

On cross-examination, amongst other things, he testified that he told the agent that the board would not take the premises at that rent (referring to an oral offer of the premises for $5,000 a year, for three years), that it was too high. That he never made any arrangements with the plaintiff about the premises; that he had no power to make arrangements without submitting the proposition to the board. That his duty was to receive propositions and communicate them to the board, and communicate the answer of the board; that that was all he did in this matter; that he did not remember positively, but had no doubt he communicated the answer of the board to the agent. And on re-direct examination he testified that he did not think he told plaintiff, before the first of May, that the school would remain there at.$6,000 a year.

After the testimony of Mr. Simonson was closed, the plaintiff was recalled in his own behalf and testified that he recollected having a conversation with Mr. Simonson before the first of May. And against defendant’s objection and exception, the court allowed him to testify that Mr. Simonson said in that conversation, that the trustees of the ward had taken the premises for one year at $6,000 and the taxes, anyhow; that the school would remain there, and that they had no authority to take a lease for three years, without the approval of the board of education.”

We think this testimony was incompetent. It was not admissible for the purpose of impeaching the witness by contradiction, because he was plaintiff’s own witness, and his credibility was not open to an attack in the nature of an impeachment. Nor was it admissible to prove his confessions against the defendant.

He had no power to bind the defendant by admissions; he was not even a member of the board of-education, and in no sense their agent, and, as trustee of the ward, was not clothed with any authority to affect defendant by admitting that the board of trustees had taken the premises.

He could not even bind his own board by such an admission; for, while the statements of a trustee, made in the progress of a negotiation, are admissible as res gestae, yet his subsequent admissions of what had transpired are not competent evidence against the board or corporation of which he is a member.

The action of the board of trustees, referred to by Mr. Simonson, was in writing and a part of the records of the board.

A copy of the proceedings in relation to plaintiff’s proposition was already in evidence, and, clearly, a subsequent statement by one member of the board was not competent to show, by way of confession, that the board had acted directly the reverse.

It cannot be said that the error did not affect the jury in considering the question submitted to them.

Again, it was error to admit the declarations of the members of the board of education as evidence against the defendant. They were not only the declarations of individuals, but on their face purported to be nothing more; and they were made after the first of May, and related to past transactions, and so were simple confessions.

The plaintiff testified that Mr. Brennan and Mr. Small, two of the members of the board of education, “ acknowledged to him, after the first of May, that the board of education was liable for this rent for those premises, and would have to pay it.”

The defendant had not, so far as the case shows, authorized these gentlemen to make admissions or do any act on behalf of the defendant touching the leasiiig of the premises, nor to pronounce opinions on the question of the legal liability of the defendant.

The plaintiff was also allowed to testify that Mr. Brennan said to him, before the first of May, that they were going to take the premises,” and that after the first of May, Mr. Small had a talk with him about the same tenor.”

This evidence should also have been excluded. Nothing occurred subsequently in the course of the trial to render these errors immaterial.

The jury must have given them much weight, and we cannot obviate their legal consequences which entitle defendant to a new trial.

It is very difficult to see how the defendant, The Board of Education,” can be held liable as tenants of the premises for one year, at $6,000 and taxes, without any action on its own part, because the trustees of the ward negligently held over after the expiration of their former term, or on the ground that plaintiff notified the trustees that if they continued in occupation the rent would be $6,000 and taxes.

The defendant is not lawfully shown either to have approved or directed such action on the part of the trustees, and it is a question worthy of consideration whether the quasi corporation, known as the board of trustees of the ward, had authority to create obligations against the board of education in the manner in which it is claimed by plaintiff the liability to him- arose.

But we do not pass upon that question, nor on the point whether this action can be continued in its present form.

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

Daniels and Lawrence, JJ., concurred.

Judgment reversed and a new trial granted, costs to abide the event.

       Hunt v. Fish, 4 Barb., 324; Richard v. Collin, 24 id., 444.


text:
    THOMAS M. TYNG, Appellant, v. THE UNITED STATES SUBMARINE AND TORPEDO BOAT CO., Respondent.
    Evidence— notice to produce papers.

    This action was brought by plaintiff to recover for services rendered and money disbursed in procuring certain patents for the defendant. At the trial, he required the defendant, pursuant to a notice, to produce its certificate of incorporation, the assignment of the invention to one Smith, one of the company’s trustees, and the minutes of the meetings of the board of trustees; the books and papers not being produced, the plaintiff produced proof of the certificate of incorporation and the contents of the assignment; and also proved the contents of the minutes so far as to show the entry of the proceedings of the meeting of June ninth, containing the statement that his action in procuring the patents was approved. After the plaintiff rested, the defendant produced and read, against the objection of the plaintiff, the certificate of incorporation, the assignment of the invention, and the record of the meeting of the trustees, held November seventh, at which the statement contained in the record of the meeting of June ninth, approving the acts of plaintiff in procuring the patents, was stricken out; held, that the objection could not be sustained as to the certificate of incorporation, because it was filed in the office of the county clerk and was a public record, as accessible to one party as to the other; nor as to the minutes, as the portion read by the defendant was not the portion which the plaintiff wished to prove, but an entirely separate and distinct portion; that the assignment should have been rejected, but, as the plaintiff was not injured by its admission, the judgment would not be reversed for this error.
    A party failing, after notice, to produce books and papers in his possession, is not allowed, after having voluntarily withheld them when demanded by his adversary, to introduce them in evidence himself.
    Appeal from a judgment entered on the report of a referee in favor of the defendant.
    The defendant in this action is a corporation, formed, on or about the 24th of October, 1865, under the statute of this State providing for the formation of manufacturing corporations.
    Its object was to manufacture, sell and use submarine boats, apparatus or machines, and improve, sell and otherwise dispose of the property of the company. Its capital was fixed at $1,000,000, divided into 10,000 shares of $100 each, representing improvements in submarine vessels and apparatus, for which a caveat had been filed under the United States patent laws, preparatory to obtaining a patent. The company owned the invention and the right to letters patent for the same.
    The majority of the stock was owned by the plaintiff, who was secretary and treasurer of the corporation, and by S. B. Clark, who was its president. The plaintiff applied for, and procured patents for the invention in this and other countries, for which he paid out large sums of money, which constituted the cause of action for which he claimed to recover ; the issue in the action was referred to a referee, who reported in favor of the defendant. Judgment was entered upon the report and the plaintiff appealed from the same.

      Heivry E. Ernies, Jr., for the appellant.

      Fithian do Olark, for the respondent.
   Daniels, J.:

The evidence given by the plaintiff, as a witness upon the trial, tended to prove that he took proceedings to obtain patents for the invention assigned to the defendants, and paid out the sum of money requisite to carry them on and render them effectual, with the concurrence and approbation, and by the request, of the president and other trustees of the corporation, and that the patents, when procured in that manner by him, had been transferred and delivered to the corporation and were afterward held by it as its property. This was sufficient to create a prima facie right to recover on his part; but his statement upon these matters was controverted by the evidence given by Clark, who was president of the corporation. From that, it appeared that the proceedings to procure the patents were taken under the joint concurrence of the plaintiff and himself, in order to improve the stock owned by them in the corporation ; and that they both acted for themselves and not on behalf of the corporation. He further testified that the patents had not been transferred or delivered to the corporation, and that it had received no benefit from the plaintiff’s expenditures. The state of the accounts and the character of the correspondence proved, tended to confirm this view of the plaintiff’s employment. As a whole, the evidence was quite evenly balanced, except as to the receipt of the patents by the company; upon that, the preponderance was against the plaintiff, because his knowledge upon that subject seemed to be dependent upon the information communicated to him by Sanborn, his successor.

This state of the evidence rendered the inquiries, whether the employment was by the company or for its benefit, or whether it had received the fruits of the plaintiff’s services and expenditures, matters of fact for the determination and decision of the referee, and he has determined them in favor of defendant. This conclusion is final in the case, because nothing appears from which it can reasonably be held to be improper. The minutes of a meeting of the trustees, held on the 9th of June, 1866, contained the statement that the plaintiff’s action, in procuring the patents was approved; if that had been true, a good reason would have existed for sustaining his claim for reimbursements, but the defendant’s proof directly tended To show that such action had not been approved, and that the entry in the minutes was made by the plaintiff without authority. That theory of the fact seems to have been adopted as the truth by the referee, and. the entry itself was not permitted to continue in the minutes, for it was afterward expunged by a vote of the trustees, at what seems to have been a regular meeting of the board. There was nothing, after that, in the evidence showing any action on the part of the corporation relating to the plaintiff’s services or expenditures.

The evidence, tending to show that the entry in the minutes of the meeting of the trustees, that the action of the plaintiff was approved, was untrue, and inserted there by the act of the plaintiff himself without authority, was entirely pertinent and proper. He produced the entry as evidence that the company had approved of his action, and, therefore, had become liable to refund the money disbursed by him in the course of its business; and the company, certainly, had the right to avoid the inference by showing that no such approval was made, and the entry, stating that it was, an untruth inserted in the minutes by the unauthorized conduct of the plaintiff. In the early progress of the trial, the plaintiff, pursuant to a -notice, required the defendant to produce its certificate of incorporation, the assignment of the invention to Smith, one of the company’s trustees, and the minutes of the meeting of the board of trustees. The books and papers were not produced, and the plaintiff then produced proof of the certificate of incorporation and contents of the assignment. He also proved the contents of the minutes so far as to show the entry of the proceedings of the trustees’ meeting on the ninth of June, containing his statement that this action was approved, but he did not give proof of the entry of the proceedings of the meeting of the seventh of November, at which the statement of that approval was expunged. After the plaintiff rested, the defendant produced and read the certificate of incorporation, the assignment of the invention and its improvements to Smith, and the record of the meeting of the trustees, held on the seventh of November. This proof was received after the plaintiff had objected to it upon the ground that the defendant should not be allowed to make it after having failed to produce the papers and the book, when required to do so, according to the terms of the plaintiff’s notice, and the plaintiff excepted to the ruling allowing it to be given. The objection taken to proof of the certificate of incorporation could not, in any view, be maintained, because the certificate was filed in the office of the clerk of the county, and had thereby become a public record, and accessible to one party, as it was to the other; and that taken to the production and proof of the book of minutes, is equally without foundation, because its object was to prove the record of the meeting of the seventh of November, concerning which the plaintiff gave no evidence, and that was all the evidence given by the defendant from the book. Under the objection taken by the plaintiff, it would extend the rule, relied upon by the plaintiff, altogether too far, to hold that a party, required to produce a book upon the trial for the benefit of the other party, so as to enable him to prove and read one portion of it, should, on account of his failure to do so, be precluded from proving and reading an entirely different portion of its contents, and that was what the plaintiff insisted upon by means of his objections. What the plaintiff required, was to prove the portion of the entry showing the statement of the approval of his action in obtaining the patents; and the use made of the book by the defendant, under the objection, was to,, show that the statement concerning it had afterward been expunged, at what appears to have been a regular meeting of the board of trustees.

There can be no doubt but that the rule of evidence, relied upon by the plaintiff, respecting the effects of omitting to produce the books and papers upon the trial, when required to do so by the notice of the opposite party, is well settled, and besides that, it is just and wholesome, and, in all proper cases, should be observed and applied. The party failing, after notice, to produce, books and papers in his possession or under his control, is not entitled to the favorable considei'ation of the tribunal before which the trial may be proceeding as to that part of his cause of action or defense which may be dependent upon their contents; and no injustice is done to him, after he has voluntarily withheld them when they were required by his adversary, by excluding- them from the case upon his offer to introduce them. It is but a just consequence of his own misconduct for the needless embarrassment occasioned to his adversary. And the rule of evidence existing on that subject should be enforced against the defaulting party.

Under this rule, the assignment ought to have been rejected by the referee. But the judgment cannot be reversed because he erred in that respect; for, the proof, made by means of them, was more beneficial and important to the plaintiff than it was to the defendant. In fact it does not seem to have been of the least consequence to the defendant’s defense. And it was a circumstance in the plaintiff’s favor, because it showed that the title, received by the company for the invention and improvements from Smith, was complete. Although an error on the part of the referee in allowing the papers to be read, under the circumstances, it was one which in no way produced any possible injury to the plaintiff. For that reason, it cannot be allowed to invalidate the judgment afterwards directed by Mm.

There was no error in allowing the defendant’s witness, Clark, to contradict what the plaintiff had been previously permitted to state, concerning his employment by the officers and stockholders, to procure the patents for the invention, nor in allowing him to testify from memory who the stockholders of the company were, as long as his personal knowledge enabled him to do that.

The case shows that there was evidence from which the referee could reasonably find that Clark supplied part of the money expended in procuring the patents, and for that reason he was warranted in finding the fact as he ultimately did, although he had previously stated generally that the expenditure was made by the plaintiff. These findings are not inconsistent, because, by the last one, no attempt was made to change the amount previously stated to have been expended by the plaintiff. • The effect is that Clark was found to have advanced money as well as the plaintiff.

If the referee had adopted the plaintiff’s own evidence as the truth, no difference in the result would have been produced by it. For he testified that when he was applied to by the officers of the corporation to advance the money for the patents, the promise made was that he should be repaid by the company for the money advanced, as soon as any money was received into its treasury. And he afterwards stated that “ there never was any money in the treasury of the company.” This, at the best, was but a conditional promise, and by the plaintiff’s own evidence it appeared that the condition, on which it was rendered dependent, had never been performed. If these facts had been found ás he stated them, they would not have entitled him to judgment. But they were not, for the defendant’s witness, Clark, stated that no such promise even as that was made, and the referee adopted that as the truth in the ease.

All the evidence which the defendant gave was admissible under its answer, for it simply went to show that the theory on which the plaintiff claimed to recover was not true in point of fact.

The referee’s omission to find the facts he was requested to by the plaintiff’s counsel can be of no service to him upon this appeal. For if he was wrong in declining, the remedy for its correction is not by way of appeal from the judgment.

No ground exists on which the appeal taken can be sustained.

The judgment should therefore be affirmed, with costs.

Davis, P. J., and Westbrook, J., concurred.

Judgment affirmed, with costs.

       Doe v. Cockell, 6 Car. & P., 525; Lewis v. Hartley, 7 id., 405; Collins v. Gashon, 2 Foster & Finlason, 47; 2 Phillips’ Evidence, 5th Am. ed., 447.

       Rogers v. Wheeler, 52 N. Y., 262.


text:
    GEORGE A. OSGOOD and CYRUS CURTISS, as Receivers of the Columbian Ins. Co., Plaintiffs, v. WM. S. TOOLE and BENJAMIN D. LEFEVRE, Defendants.

      Premium notes — assets, when exhausted—how prosed—renewed of mid note— principal and surety.

    Action by plaintiffs, as receivers of Columbian Insurance Company, upon two promissory notes given by defendants to the company as “security notes.” The charter provided, in respect to such notes, that, “ as between the makers and the company, they shall be liable merely to the extent of the premiums written upon them, and for loans and liabilities of the company after the cash capital and other resources of the company shall have been first exhausted.” Held, that the word exhausted, as used in the charter, does not mean actually applied toward the extinguishment of liabilities; that the cash capital and other resources may properly be said to be exhausted, when the losses, which they are held to meet, are concededly greater than their amount.
    At the trial, the testimony of the book-keeper and secretary of the company, and also of the cashier, who was clerk of the receivers, as to the condition of the affairs of the company at the time of the appointment of the receivers, was admitted. Held, that this was proper; that the witnesses possessed the requisite knowledge, and that the adjustment of liabilities by the receivers, who are officers of the court, is prima facie evidence in suits brought to recover upon premium or security notes.
    Each of the notes was payable seven months after its date. Held, that the fact that one of them was given in renewal of a note which was, in violation of the charter, made payable twelvp months after date, furnished no defense to it.
    The makers of such a note and the company did not stand to each other in the relation of principal and sureties.
    This case having been tried before a jury, and a verdict having been rendered in favor of the plaintiffs, the court directed the exceptions to be heard in the first instance at the General Term. At the time the notes in suit were given, the makers of such notes were, by the charter of the company, entitled to a dividend from the profits of the company, if enough remained after paying certain dividends to the stockholders. The dividend was to be paid in scrip, and the certificates declared the person receiving them to be entitled to a certain portion of the invested funds of the company, and to an annual interest thereon not to exceed six per cent, and contained a proviso that the amount named therein was liable for any future loss of the company. After the notes in suit were made, the company passed a resolution altering the tariff and agreeing, in future, to “ return in cash, at the end of each fiscal year, fifteen per cent of all premiums paid and earned during the year in lieu of scrip, at the option of the dealer, such option to be signified at the time of application.” The defendants claimed that the relation existing between the company and themselves was that of principal and sureties, and that by this change in the mode of conducting the business they were discharged.
    The other facts appear in the opinion.
    A. F. JDyeti, for the defendants.

      J). D. Field, for the plaintiffs.
   Davis, P. J.:

This case comes here upon exceptions ordered to be heard in the first instance at General Term.

The plaintiffs are receivers, duly appointed, of the assets and property of the Columbian Insurance Company. The action is brought upon two promissory notes, one of which is dated the 11th day of December, 1861, for $840, payable to the order of the Columbian Insurance Company seven months after date; the other, dated the 11th of July, 1861, for $930, payable to the order of the said company seven months after date.

The plaintiffs claimed, and the jury, under the charge of the court, have found, that the notes were given as security notes in advance of premiums, with intent that they should be'held and owned by the company, under the provisions of its charter. The charter provided, in respect of such notes, that “they shall be drawn to the order of the company, and made payable within twelve months from date; as to third parties, they shall be deemed the absolute property of the company, and may be used for the payment of losses and liabilities, and for any other purpose connected with the business of the company; and, when negotiated and in the hands of such third parties, shall not be subject to any equitable claim or offset as between the makers and the company; whether existing at the time of their negotiation or accruing after-wards; as between the makers and the company they shall be liable merely to the extent of the premiums written upon them, and for losses and liabilities of the company after the cash capital and other resources of the company shall have been first exhausted.”

The first exception arises upon the ruling of the judge at circuit, allowing the testimony of the book-keeper and secretary of the company, and also of the cashier of the company, who was clerk of the receivers, as to the condition of the afíairs of the company at the time of the appointment of the receivers. The objections were, that the evidence was incompetent, that the witness was not shown to have such knowledge upon the subject as would authorize him to state, and that an adjustment and admission of liabilities by the receivers were not evidence of their existence as against the defendants. Neither of these objections was well taken. It was clearly competent to show the- extent of liabilities and the amount of assets, as bearing upon the question of the exhaustion of cash capital and resources under the charter. The witnesses were possessed of the requisite knowledge to answer the questions put to them respectively, and they answered to facts within their knowledge ; and lastly, the adjustment of liabilities by the receivers, who "are officers of the court, is aprima facie evidence of the existence of such liabilities, when suits are brought to recover upon premium or security notes. The objection was not pointed to the non-production of the papers showing the official adjustment by the receivers. These witnesses showed that the adjusted liabilities of the company were about $2,700,000, and the unadjusted about $500,000 or $600,000; that the assets were between $400,000 and $500,000, exclusive of what were called the Alabama claims, which are stated at about $700,000, the latter being as yet unsettled; these facts showed that it was not possible for the assets of the company to pay a dividend to creditors beyond thirty or forty per cent, even if the Alabama claims should be recovered in full. Upon this state of facts the learned judge charged the jury, “ that if the cash capital and other resources were substantially exhausted, and it is apparent that there is not the slightest shadow of doubt that the assets of the company are not sufficient to meet the amount of the losses, that then the representatives of the company would have the right to call upon the makers of these security notes to respond.” To this part of the charge there was an exception. We think the charge was quite as favorable to defendants as they were entitled to. The word exhausted, as used in the charter, does not mean actually applied toward the extinguishment of liabilities. The cash capital and other resources may properly be said to be exhausted when the losses, which they are held to meet, are concededly greater than theii amount. It was in that sense the .word was used. The construction claimed by the defendants would require that every asset should be first reduced to money and then paid out in full before the security notes could be enforced, and the result would be, in this case, that the creditors would be postponed till .the end of the seemingly interminable contest in congress, whether the money recovered from Great Britain, under the treaty, shall be equitably applied to the claims of insurance companies like those in the hands of plaintiffs, or arbitrarily confiscated by the brutumfulmen of the government. The defendants also insist that the notes in suit were void because given in renewal of notes payable “twelve months after date.” instead of “ within twelve months.” It was held in Osgood v. Toplitz that this departure, in form, from the language of the charter, was fatal to the validity of the security notes. We are not driven to show that that decision was unsound because this case is not within its facts. The notes in suit are payable at seven months after date, and therefore withm twelve months and the fact that one of them was given in renewal of a note which was payable twelve months after date, is not material, because it would be the duty of the court, for the protection of the creditors of the company, to hold that the new note was given to cure the inadvertent error of the first one. A note given in place or renewal of one absolutely void by statute, which excludes the vice that destroyed the former, may be enforced.

There was no such relation, in our judgment, of principal and surety between the company and the defendants as vitiated the obligations of the latter by the changes made by the company'in the mode of doing its business, under the resolution of August, 1861. It was no change in the contract of defendants, nor did; it operate to effect one; and although this note was security for creditors in certain events, yet it was not in the nature of the obligation of surety, whose rights are si/rietissimi juris, and who, upon any change of the terms of his liability, without his own consent, may always say, “ non hcec feeder a veni.” To apply that rule to notes given as premium or security notes, under the charters of the insurance companies, would inject a virus, fatal to all protection for their creditors.

We think the plaintiffs are entitled to judgment upon the verdict.

Daniels and Westbrook, JJ., concurred.

Judgment for plaintiffs.

       3 Lansing, 184.

       Hammond v. Hopping, 13 Wend., 505 ; Goulding v. Davidson, 26 N. Y., 609 Brackett v. Barney, 28 id., 338.


text:
    STEPHEN KROM, Survivor, etc., Respondent, v. JOHN J. LEVY, Appellant.

      Memoranda—when admissible as evidence—defective performance—defense of.

    Entries in a book, which the witness swears he knew to be correct when made, that he saw most oí the entries when made or very soon after, and that the book produced was the original, are properly admitted in evidence. When the witness testifies, of his own knowledge, of the accuracy of the prices charged, and that work was done and materials were furnished between certain times, but that he could not give the dates when each item was done or furnished without looking at the book,—held, that it was proper to read from the book the dates and amounts which could not otherwise be given.
    A, party may retain, without compensation, the benefits of a partial performance only when, from the nature of the contract, he must receive such benefits in advance of a full performance, and when, by its terms or just construction, he is under no legal obligation to pay until the performance is complete; otherwise the party receiving the benefit of insufficient performance must find his relief in damages.
    Appeal from a judgment in the Supreme Court, in favor of the plaintiffs, entered on the report of a referee.
    This action was brought to recover a balance of account for work done and materials furnished by the plaintiff and John A. Schenck, as partners, for the defendant. .The referee reported sixty-three dollars and twenty-three cents, together with interest on the same from the 8th day of June, 1864, to be due to the surviving plaintiff. From the judgment entered upon the report the defendant appealed.

      HT. B. Hoxie, for the appellant.

      Coles Morris, for the respondent.
   Daniels, J.:

The plaintiff’s demand was proven in part by his own evidence, accompanying the book of account kept by his deceased copartner.

He was asked what he knew about the entries in the book, and the defendant objected to the inquiry as irrelevant and incompetent, because it appeared that his copartner kept the boob exclusively, and the knowledge of the witness must necessarily be secondary evidence, and he should be confined to his knowledge of work done for the defendant.

These objections were very properly overruled, because the question simply required the witness to state what knowledge he had concerning the entries ; and his answer clearly showed the propriety of the inquiry, for he merely said that at the time they were made he knew them to be correct. The exception taken to this ruling of the referee has no coloi’able support to sustain it.

Hpon his cross-examination, this witness stated that he kept all the memoranda from which the entries were transcribed. That they were usually on a slate kept for that purpose, and transcribed from that into the book by Mr. Schenck, sometimes every day and sometimes at intervals of two or three days, and that he generally assisted, reading them from the slate. The items themselves, he stated, were taken orally from the workmen and some from himself. These memoranda were of work done by himself and the other workmen, and all the work they and he did.

He stated farther, that he saw most of the entries at the time they were made, or very soon after, and that he believed the book produced to be the original. It also appeared that the firm did work for the defendant. This evidence was sufficient to allow the book to be received as evidence in the case.

After it was given, and before the book was received, the witness stated that he could relate, of his own knowledge, what the first work was, which was done by the plaintiff for the defendant. And as he was about to read from the book, the defendant objected that the entries in the book were not .evidence, for the reason that Schenck was the proper person to prove them, and that the evidence of the witness, reading from the book, was secondary and incompetent.

These objections were overruled and the defendant excepted. The witness was then about proceeding with the reading of the entries, when it was agreed he could use the bill of particulars instead of the book, and he did so. But, before reading from it, he stated that he could testify, of his own knowledge, of the accuracy of every item in the bill as to prices, and knew they were reasonable ; and added, further, that the work and material, mentioned in the bill, was done and furnished by plaintiff for the defendant, all between May 10th and October 26th, 1862. But he could not give the dates without looking at the book, and he then read from the bill of particulars.

As the items were authenticated by the evidence which the witness gave, there was no impropriety in allowing him to read them, for the purpose of supplying the dates and amounts which could not be otherwise given.

In the case of Russell v. Hudson River R. R. Co., it was held that a memorandum might be so used by a witness, when it appeared to have been made on or about the time of the transaction to which it relates; that its accuracy is duly certified by the oath of the witness ; and that there is necessity for its introduction, on account of the inability of the witness to recollect the facts. § Within these authorities, it was entirely proper to allow the witness to read from the bill, as that was substituted by consent for the book, for the purpose of supplying the dates and amounts which could not otherwise have been obtained.

After this evidence was taken, the book was received in evidence at the request of the referee and without objection. When the plaintiff rested; the defendant moved to have the evidence given by him, stricken out, so far as it appeared to be based upon entries in the book. This was refused and an exception taken by the defendant. The motion was too general to render it practicable. But as the book was so far authenticated by the oath of the witness as to render it evidence in the case upon matters entered in it, and not within his recollection, he had the right, to that extent, to base his evidence upon it.

His evidence, so far, was merely a repetition of the contents of the book, dependent entirely upon the entries made for its weight and effect. Besides that, the examination of the defendant as a witness showed that there was no substantial controversy concerning the amount of work done and materials supplied, for he did not appear to claim that the charges were unfounded or excessive, but simply that many of the items charged in the account appertained to, and were included within, special agreements made for particular jobs of work between himself and the deceased.

The referee was not in error for refusing to strike out the evidence of the witness, nor in permitting him to refer to the entries in the course of his evidence for their dates, amounts, and such other particulars as it would be impracticable for him to give from memory.

Special agreements were made between the defendant and the firm, for repairing two card-cutters, and grinding and putting a third in order. The work stipulated for, appears to have been performed, and the card-cutters returned to, and retained by, the defendants. But the material used in repairing and completing the two, was either not good or improperly tempered. For that reason, the defendant resisted the plaintiff’s demand for the price agreed to be paid for the work and material used. This he could not do, after receiving and retaining what had been done. He acted voluntarily in doing that, and for that reason could not successfully resist the claim made for a recovery of the price, so far as the labor and material should prove to be beneficial to him.

The law only allows a party to retain, without compensation, the benefits of a partial performance, where, from the nature of the con tract J he must receive such benefits in advance of a full performance, and by its terms or just construction he is under no legal obligation to pay until the performance is complete.

The authorities cited and relied upon by the defendant, in which it was held that a recovery could not be had by the party partially performing an entire agreement, are all within this principle, and for that reason not applicable to the point made by way of defense to the charges for work and materials upon the card-cutters. The plaintiff and his partner performed all the work and supplied all the material which the performance of their agreement as to card-cutters required. And after that was done, they were received and retained by the defendant. That was such a performance as entitled the plaintiff to recover the price agreed to be paid, subject of course to the defendant’s right to reduce it, by way of recoupment or counter-claim, on account of the defective manner in which the work was done.

But that defense was not set forth in the defendant’s answer, and for that reason it could not have been properly allowed by the referee, even though it appeared in the course of his evidence, given upon the trial. No reason for the rejection of this claim appears by the conclusions of the referee, unless it may be that it was not satisfactorily established. But the condition of the pleadings was sufficient to justify the action of the referee in disallowing it. As they are contained in the case, he could not lawfully have made any deduction from the plaintiff’s account by reason of this demand. This is a defect which cannot be disregarded or supplied for the purpose of reversing the judgment.

The defendant had his election to set this claim up by way of defense, or reserve it for an independent action in Ms own behalf.

By omitting to allege it in his answer, he must be presumed to have elected not to rely upon it as a defense to the claim made by the plaintiff for the work done upon the card-cutters.' As this defense was not involved in the action, it is unnecessary to examine the defendant’s exception to the evidence given, showing that the defendant made no claim that the work done or materials furnished for the card-cutters, were in any respect defective.

At the same time no reason exists for doubting its propriety, since it would have a slight tendency, certainly, to show that both had proved satisfactory.

The breach of the contract made by the plaintiff and his partner, for planing and cutting the back form, was set forth in the answer.

And the defendant was allowed $125 by way of damages for its non-performance. It was claimed that a farther allowance should have been made for the difference in the value of the form and the price for which it would sell as old metal. This claim was made upon the ground that it had been rendered useless by the work performed upon it. The only evidence, supporting that position, was that which the defendant himself gave as a witness, wMle that of Hookey and Tucker, who were produced as witnesses in his behalf, failed to sustain him in this respect.

They described it as a casting on which work had been-done, but not in such a manner as to injure it. The evidence they gave fully justified the referee in his conclusion upon this subject.

But one of these witnesses, who seems to have been fully competent to form an accurate judgment as to the expense of performing the agreement made, testified that it would cost $150 to do the • work upon it which the plaintiff and his partner undertook to perform; and that ten or fifteen dollars’ worth of the work only had been done upon it.

That does not appear to have been allowed to the plaintiff, and cannot be said to be included in the bill of particulars. The defendant has consequently derived that amount of benefit from the partial performance shown, without cost or expense upon his part; to complete the work contracted for, required an expenditure of $135 or $140. And that included the contract price of fifteen dollars, which the defendant agreed to pay the plaintiff and his partner for it.

As that was not paid by the defendant, but would have been, if the contract had been performed by them, it should be deducted from the damages arising out of their failure to perform.

And that deduction will reduce the damages to the amount allowed by the referee.

It placed the defendant precisely where he would have been if that agreement had been performed as it should have been.

No reason can be found for doubting the legality of the conclusions stated by the referee.

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

Davis, P. J., and Westbrook, J. concurred.

Judgment affirmed.

       Sickles v. Mather, 20 Wend., 72, 75, 77; Merrill v. Ithaca and Oswego R. R. Co., 16 Wend., 586.

       1 Greenleaf on Evidence, § 436.

       17 N. Y., 134. § id., 140.

       McCormick v. Pa. Central R. R. Co., 49 N. Y., 303, 315.

       Smith v. Brady, 17 N. Y., 173, 187.

        2 Parsons on Conts., 2d ed., 246, 247; Leavenworth v. Packer, 53 Barb., 132; Neaffie v. Hart, 4 Lansing, 4; Muller v. Eno, 4 Kernan, 597; Norris v. La Farge, 3 E. D. Smith, 375; Harris v. Bernard, 4 id., 195; McKnight v. Devlin, 53 N. Y.; 399.

       McKyring v. Bull, 16 N. Y., 297; Brazill v. Isham, 3 Kernan, 9.

       Gillespie v. Torrance, 25 N. Y., 306, 309, 311.