author: O’Brien, J.:

text:
    FANNIE GROSSMAN, Respondent, v. CORTLAND H. DODD, as Treasurer of DODD & CHILDS’ EXPRESS, Appellant.

      Common carriers — a receipt limiting liability — when a passenger is not bound thereby.

    In an action brought against a baggage express company to recover the value of a trunk which, while in its charge, fell into the Hudson river and was damaged, it appeared that the plaintiff, a passenger' from Europe, able to read English, met the agent of the company on an open pier, in daylight, delivered to him the trunk and at the same time received a receipt therefor; that thereupon she delivered the receipt to her brother; that neither the passenger nor her brother objected to its terms; that, in substance, the receipt limited the liability of the company to $100 unless there was a special agreement in writing.

      Held, that the plaintiff'was entitled to recover the actual amount of her damage without being limited to the sum of $100 specified in the receipt.
    That while a common carrier may limit its liability by express contract, the burden rests upon it to show that the passenger assented- to. the terms of the receipt. This it must prove by a preponderance of evidence.
    Appeal by the defendant Cortland H. Dodd, as treasurer of Dodd & Childs’ Express, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 5th day of October, 1891, upon a recovery by the plaintiff of $1,263.48 and costs, after a trial before a referee.

      Lockwood (& Hall, for the appellant.
    Townsend, Dyett <& Einstein, for the respondent.
   O’Brien, J.:

This action was brought to recover the value of wearing apparel in the plaintiff’s trunk, which was delivered to the defendant to be carried from Jersey City to East Eightieth, street, New York, and in transit fell into the Hudson river and. was thereby saturated with ■salt water, discolored and damaged.

The defendant denied negligence and value of property, and set up a special agreement that, in case of loss or damage to said trunk •or its contents by reason of negligence or otherwise, it should not be liable for an amount exceeding one hundred dollars, unless specially ■agreed for in writing and noted in said contract, and the extra risk paid therefor. The question most seriously litigated, and the substantial one presented upon this appeal, relates to the defense thus interposed as to whether or not the defendant had limited its liability by the special agreement to $100.

Upon the facts the referee decided against the defendant and awarded judgment to the plaintiff for $1,707.50, damages and costs.

In support of the conclusions reached by the referee the testimony shows that the plaintiff arrived from Europe by the Red Star line, landing at its pier in Jersey City. She there delivered her trunk to the agent of the defendant, who immediately signed- and delivered to her a paper which appears in full in the referee’s report, and which, in substance, stated that the express company received the articles subject to charges based upon a gross valuation not exceeding one hundred dollars upon any trunk, and further recited as follows: “ It is mutually agreed, and is part of the consideration of this contract, that the Dodd & Childs express shall not be liable for merchandise * * * for an amount exceeding $100 * * * unless specially agreed for in writing and noted hereon, and the extra risk paid therefor.” The delivery of the receipt was before the trunk had been removed. Indeed, it, was part of the same transaction with the delivery of the baggage. That delivery took place about five o’clock in the afternoon of June twelfth, in plain ■daylight, on an open pier, the plaintiff being able to read and understand English. When received, plaintiff delivered the paper to her brother, and neither she nor her brother made any objection to the terms specified in the paper.

The question presented, therefore, is, was the plaintiff bound by the terms and conditions of this paper, whether read by her or not ?

Upon the part of the defendant it was claimed that the acceptance of this paper constituted a contract between the parties, and for tlie loss which subsequently occurred it was only liable to the extent of $100 in accordance with the terms thereof.

In view of the numerous decisions, we may regard the law as settled that a common carrier has the right to limit his common-law liability by express contract, shielding him from damage occasioned even by his own negligence and that of his servants. But, as stated in Madan v. Sherard (73 N. Y., 329), where a traveler, on delivery of baggage to a local express company, receives a paper which, from the circumstances of the transaction, he has a right to regard simply as a receipt or voucher to enable him to follow and identify his. property, and no notice is given to him that it embodies the terms of a special contract, or is intended to subserve any other purpose than as a voucher, his omission to read the paper is not jper se negligence, and he is not, as matter of law; bound by its terms. The question whether, in a particular case, the party receiving such a receipt accepted it with notice of its contents, or with notice that it contained the terms of a special contract, so as to require him to acquaint himself with its contents, is one of evidence to be determined by the jury. It will thus -be seen that no such contract arises, as a matter of law, from the acceptance of the receipt, but the defendant, in order to relieve itself from full liability, is bound to establish a contract. (Sunderland v. Westcott, 40 How. Pr., 469; Blossom v. Dodd, 43 N. Y., 264; Rawson v. Penn. R. R. Co., 2 Abb. [N. S.], 220; Limburger v. Westcott, 49 Barb., 283.)

In Woodruff v. Sherrard (9 Hun, 323), which is a decision of this General Term, wherein the cases were collated and discussed, Daniels, J., in writing the opinion, says: To make a binding contract in such a case as this, requires at least the implied assent of the party receiving the instrument.”

In that case it appeared that a daughter of the plaintiff, in company with another young girl, delivered a check for a trunk to the clerk of a transfer company at its office in New York, with instructions to transport the same to her house in Brooklyn. She then turned away and was leaving the office, but at the suggestion of her companion that she ought to have a receipt, she returned and demanded a receipt of the clerk, who thereupon delivered to her a receipt by which it was, among other things, stipulated that the company should not be liable to an amount exceeding one hundred dollars, unless a special contract was made. She did not read the receipt or know its contents until after the loss of the trunk. Held, that she never assented to the terms of the contract limiting the liability of the company, and that she was entitled to recover the full value of the trunk.

This and the cases already cited are to be distinguished from' those relied upon by the appellant, namely, the cases of Nicholas v. New York Central and Hudson River Railroad Company (89 N. Y., 370); Guillaume v. The General Transportation Company (100 id., 498), and Germania Fire Insurance Company v. Memphis, etc., Railroad Company (72 id., 93).

In reference to those cases the referee aptly says: “ I am asked to apply the rule of presumption existing in the case of a shipper of merchandise delivering to a railway company, after discussion with the agent as to rates of freight, lines of transportation, etc., and receiving a bill of lading for his goods, the presumption being that he accepts the terms of his contract as written, and fails to read it at his peril. I don’t think this is fair to passengers by sea or land.”

The learned referee, in our opinion, was right in his view that whether a contract existed or not was a question of fact. Upon all the evidence he decided that the burden placed upon the defendant of making out a plea of a special agreement was not sustained.

The only other question presented upon the appeal to which our attention has been called by appellant relates to exceptions taken to rulings of the referee excluding evidence tending to show what was the general course of business of the defendant.

The question before the referee was, what was done and said between the plaintiff and the defendants’ servant from which the ■special agreement alleged as to the $100 limit liability could be proved or inferred. We fail to see how the testimony offered in reference to the ordinary process of receiving baggage from the steamer could bear upon the determination of this question; and it being clearly irrelevant, the referee was right in excluding it.

Our conclusion, therefore, is that the judgment appealed from should be affirmed, with costs.

Van Brunt, P. L, and Lawrence, J., concurred.


source: Caselaw Access Project

author: Yan Brunt, P. J.:

license: Public Domain

text:
    ANNA B. STEWART, Respondent, v. THE UNION MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Life insurance — when a premium will be pt'eswmed to haw been paid — demurrer to a complaint not alleging its payment.

    The complaint in an action upon a policy of life insurance which contained a condition that the first premium must be paid on delivery, alleged that the policy was made, executed and delivered for value received.
    The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, in that it did not allege that the first premium was paid or that its payment was waived.

      Held,, untenable.
    That, as the complaint alleged that the policy had been duly executed and delivered for value, the presumption was that, since the company could exact the premium before delivery, it had done so or that credit had been given.
    That if, as matter of fact, it had not been paid, the objection should have been raised by answer, it being a fact which did not appear upon the face of the complaint.
    Appeal by tbe defendant, the Union Mutual Life Insurance Company, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 5th day of December, 1891, overruling a demurrer to the complaint and directing final judgment unless the defendant answered over within twenty days.

      Sawyer c& Getty, for the appellant.

      Samuel B. Paul, for the respondent.
   Yan Brunt, P. J.:

We think that the whole difficulty with the defendant’s argument in support of its demurrer is that it assumes facts which do not appear. One of the facts upon which it relies it states to be that the insured obtained possession of the policy of insurance in question without paying anything therefor. The complaint not only does not contain any such statement, but, on the contrary, it alleges •that the policy was made, executed and delivered on April 19,1890, for value received, a fact which is admitted by the demurrer. It further alleges the purport of the policy; death of the assured on August 14, 1890; furnishing of proper proofs of death ; demand of payment and refusal.

Attached to the complaint is a copy of the policy, which contains the following clause:

“ The policy is issued upon and subject to the following conditions, and the conditions stated in the second page of this policy, all •of which are hereby referred to and made a part hereof. That the first year’s premium of one hundred and twenty-three dollars and ten cents shall be paid at the home office on the delivery of this policy,” etc.

The demurrer is upon the ground that the complaint does not state facts sufficient to constitute a cause of action.

It is claimed that, because it is not alleged that the $128.10 agreed to be paid on delivery of the policy has been paid, or that its payment has been waived, the complaint is defective.

This position cannot be sustained, because the allegation of the •complaint is that the policy had been duly executed and delivered for value, and the presumption would be, as the company could exact the first premium on delivery of the policy, that it had been paid, or if it had not been paid that a credit was intended. (Miller v. Life Ins. Co., 12 Wall., 285-303,) It is urged that the case cited has no application, because in that case the condition was a condition subsequent, and not a condition precedent as in this case. The application in the case cited contained an express agreement that the policy should not be binding until premium paid, whereas this policy does not contain any condition that it shall not attach or be operative unless the first premium has been paid. Thus the case at bar is much stronger in favor of the respondent than the case cited. The company have a right to exact the premium on delivery of the policy, but if they deliver such policy without such payment they are presumed to have intended to give credit.

In the case of Bogardus v. New York Life Insurance Company (101 N. Y., 328-335) it appears that the failure to make certain payments avoided the policy, an entirely different case from the one at bar.

It is undoubtedly trae that a complaint must allege a performance of conditions precedent, or if a waiver is claimed it must be pleaded ; but iu tbe case at bar facts are alleged which show either a performance of tbe condition or a waiver, if the condition has not been performed, viz., due execution and delivery of the policy. Hence the defendant must raise the issue by answer, and not by the assumption of facts which do not appear upon tbe face of the complaint.

Tbe judgment should be affirmed, with costs; defendant to have leave to answer upon payment of costs of appeal and costs of court below.

O’Brien and Patterson, JJ., concurred.

Judgment affirmed, with costs; defendant to have leave to answer upon payment of costs of appeal and costs of court below.


author: Van Brunt, P. J.:

text:
    CHARLES SCHENDEL and Another, Respondents, v. SAMUEL SILVER, Appellant, Impleaded with Others, Defendants.

      Trade-mci/i'k — acquired in the words “ Nickle-In,” used by a ciga/i' manufacturer.

    A firm, engaged in the manufacture of cigars in New York city, adopted as a brand for cigars manufactured by them the words ‘ ‘ Nickel-In.” Samuel Silver subsequently opened a store in the city of Brooklyn, which he called the ‘ ‘ Nickel-Saved” store. He copied the devices of the firm and attached the words “Nickel-Saved” to his cigars as a brand, by which persons were deceived, supposing the cigars to be those of the firm.
    In an action brought by the firm to prevent the continuance of this alleged infringement of its trade-mark:

      Held, that the firm could acquire a trade-mark in the words “ Nickel-In.”
    That where a manufacturer has invented a new name, either a new word or a common word applied for the first time to-distinguish his manufactures, although the word is not generic or descriptive, but is entirely fanciful and arbitrary, he is entitled to be protected in its use.
    That this is the rule, even though the word has become so generally known that the public have adopted it as descriptive of the article.
    That the acts of Silver were a clear infringement of the plaintiffs’ trade-mark, the term “ Nickle-Saved ” being so similar to it as to deceive the public.
    Appeal by tbe defendant Samuel Silver from a judgment of the Suprem e Court, entered, after a trial before the court at the New York Special Term, in tbe office of the clerk of the city and county of New York on the 18tli day of May, 1891, decreeing that the plaintiffs have acquired a trade-mark in the word “ nickel,” in connection with the word “ in,” or any other word as applied to cigars, and enjoining the defendants from employing, in the manufacture or sale of cigars not made or sold by the plaintiffs, the words “ nickel-saved,” or any other word in connection with the word “ nickel.”

      Marshall P. Stafford, for the appellant.

      'Benedict S. Wise, for the respondents.
   Van Brunt, P. J.:

This action was brought to restrain an infringement of a trademark. The respondents were manufacturers of cigars doing business in the city of New York. In July, 1889, they adopted as the designation of the brand of cigars which they manufactured the words “Nickel-In.” This designation appeared prominently in their places of business and was affixed to their packages and impressed upon their boxes.

In the year 1890, one of the defendants, in conjunction with others, opened a cigar ■ store in Brooklyn, which he called the “ Nickel-Saved ” cigar store. In this store the defendants copied the various 'devices of the plaintiff to attract trade, and also attached the words “ Nickel-Saved ” as a trade-mark to his cigars. The plaintiff gave evidence upon the trial showing that persons had been deceived in purchasing the cigars manufactured by the defendants, supposing them to be those manufactured by the plaintiffs.

There can be no contention whatever that the adoption of the trade-mark “ Nickel-Saved ” by the defendants was in the hope that they might deceive the public into purchasing their cigars, supposing them to be those manufactured •'by the plaintiffs, and which had acquired a reputation. And the only question which it is necessary to discuss upon this appeal is as to whether the plaintiff can acquire a trade-mark in the combination of- the words “ Nickel-In,”’ in connection with the manufacture and sale of cigars.

In the decision in the case of Selchow v. Baker (93 N. Y., 59), it seems to us that the right to acquire such a trade-mark is clearly recognized. In that case it was held that the manufacturer who-has invented a new name, consisting either of a new word or of a word or words in common use, which he has applied for the first time to his own manufactures, or to articles manufactured for him, to distinguish them from those manufactured and sold by others, if the name be not generic or descriptive of the article, and not used to denote grade or quality, but is arbitrary and fanciful, he is entitled to be protected in its use even though it has become so generally known as to be adopted by the public as descriptive of the article.

In that case the plaintiffs had adopted the name of “ sliced animals” to certain toys which they had manufactured, and which represented various objects in detached pieces, to be put together by the child using the toys, thereby forming the complete object. And it was held that this was an arbitrary use of a word or -words in common use, not at all generic or descriptive of the article, and which did not denote its grade or quality; and that, therefore, the plaintiffs could acquire a trade-mark therein. So, in the case at bar, the plaintiffs invented a combination of words in common use for the purpose of representing articles of their manufacture. These words were not in any manner descriptive of the article; neither did they denote their grade or quality, but were arbitrary and fanciful, and originated with the ■ plaintiffs. This would seem clearly to entitle them to the protection given to trade-marks, in the use of the name in connection with the manufacture of articles sold by them.

It is true that the name used by the defendants consisted of the words “ Nickel-Saved.” But it is apparent that this combination was resorted to for the purpose of possibly escaping the result of an infringement of a trade-mark, but being so near a resemblance thereto as to deceive the public.

We think, therefore, that the plaintiff was entitled to be protected from this fraudulent invasion of the rights which he had acquired, and that the judgment appealed from should be affirmed, with costs.

O’Brien, J., concurred in the result.

Judgment affirmed, with costs.


author: Patterson, J.:

text:
    ISAAC K. COHN and Another, Executors, etc., Respondents, v. LOUIS BECKHARDT, Appellant.

      Complaint — against an agent, for moneys collected by him- — when it sounds in contract — when allegations of a comersion are surplusage.

    The complaint, in an action brought by tlie executors of Jacob Colm, who, in his lifetime, had employed Louis Beckhardt to collect money from one Fisher, alleged that Beckhardt did collect the money, “ and wrongfully and unlawfully, wholly refused, failed and neglected to pay the same, or any part thereof, to the said Jacob Cohn, although the same was duly demanded, but wholly misappropriated and misapplied tlie said sum, etc., to his own use.”

      Held, that there being no allegation that the defendant received the money in a fiduciary capacity, the complaint was one upon contract for a failure to pay over tlie money.
    That the allegation that the defendant had misappropriated the money to his own use was immaterial and surplusage.
    Appeal by tbe defendant Louis Beckhardt from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 9th day of November, 1891, upon a verdict for the plaintiffs for $218, rendered by direction of the court after a trial before the court and a jury at the New York-Circuit.

      L. L. Van Allen, for the appellant.

      Benno Loemoy, for the respondents.
   Patterson, J.:

The real question in this case is as to whether the complaint is one in tort purely and simply, or one for money had and received. The action was brought by the executor and executrix of one Cohn, who, during his lifetime, had employed the defendant to collect from one Godfrey Eischer a certain sum of money. Apart from the formal allegations, the complaint sets forth that the defendant, as agent, being employed to collect the money, did, on the 9th day of November, 1887, so collect it, and wrongfully and unlawfully, wholly refused, failed and neglected to pay the same, or any part thereof, to the said Jacob Cohn, although the same was duly demanded, l>ut wholl/y misappropriated and misapplied the said sum, etc., to his own use,” and judgment is asked for the specific amount and interest. Iii the answer the employment and collection of the amount are admitted, but it is set up that at the time of the original employment the defendant was to receive, as compensation for his services, twenty-five per cent of the amount of the claim, and that afterwards it was agreed between Cohn and the defendant that the compensation of the latter should be increased to fifty per cent of the claim. On the trial the plaintiffs introduced the mere formal proof showing the right of the plaintiffs, as the representatives of Cohn, to sue, and rested. Thereupon a motion was made to dismiss the complaint, which was denied. The defendant was then put upon the stand and was asked certain questions as to the agreement between himself and Cohn, which were properly excluded ; and nothing being-shown as to the substance of the defense, the court directed a verdict for the plaintiffs for the full amount claimed.

The contention of the defendant is that there was a total failure of proof of the cause of action alleged in the complaint, and that either the complaint should have been dismissed or the defendant allowed to go to the jury “ on the question of embezzlement.” But, as we look at this complaint, the gist of the action is not the “misáppropriation and misapplication ” of the money collected, but the not paying it over. It is true the words referred to are coupled with a general statement of facts, and characterize the conduct of the defendant; but are they really the ground of the action ? Is the defendant sued for the misappropriation of the money, or for not paying it over after demand; and are the words “misappropriated and misapplied to his own use” anything more than a mere statement of a legal conclusion which necessarily follows in every case where a person after demand retains money belonging to another, and which, ex aequo et tono, he should have restored on demand, having- no excuse for retaining it ? The words above quoted are merely surplusage.

It is nowhere alleged that the defendant received the money in a fiduciary capacity. That may possibly be inferred, on the same ground on which it is true that every agent to receive money for another necessarily acts in a fiduciary capacity, but that inference does not make a person liable ex delicto unless averments are contained in a complaint showing that the whole intention and purpose of the action is to hold the defendant strictly and absolutely for his wrong, and not on bis mere legal obligation to pay money be should not detain from its real owner. • If a suit is brought for the nonpayment of a promissory note, and it should be alleged in the complaint that the defendant fraudulently, and with intent to cheat the plaintiff, refused to pay, it would scarcely be supposed that such an allegation would indicate that the action was in tort. What the defendant in this case omitted to do was to pay over the money collected on demand; and it is settled in this State by authority, that where an agent, or one who may be assumed to have been acting in a fiduciary capacity, does not pay over money he is not necessarily to be held hable in tort for not paying it over, and that even in a suit for an admitted balance due after an accounting, the plaintiff adds nothing to his cause of action, on the express or implied promise to pay, by asserting that the defendant has converted the money to his own use. (Segelken v. Meyer, 94 N. Y., 414.) The words above quoted from the complaint in this action are tantamount to an immaterial averment that the defendant converted the money to his own use.

The learned judge at the circuit took the right view of the pleadings and correctly excluded the testimony offered by the defendant, and the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Andrews, J.:

text:
    SARAH E. MORTIMER, Respondent, v. MARY ANN CHAMBERS and Others, Appellants.

      Action to charge devisees with a debt of their testator — comparison of handwriting— transactions with a deceased person — a non-negotidble note imports a consideration —■ ten years' limitation — one defendant cannot set up a counter-claim existing in his favor.

    In an action brought by the holder of certain notes, alleged to have been made by Louisa F. Fardon, to charge the defendants, her devisees, with their payment to the extent of their estate in her real property, which was effectually devised to such devisees by her, the plaintiff sought to prove the signature of the maker of the notes by comparison with her signature upon a certain bond.

      B.eld, that such practice was proper.

      That section 2 of chapter 86 of the Laws of 1880 was not repealed by chapter 555 of the Laws of 1888.
    That where an act is amended .“so as to read as follows,” the earlier act is not deemed to have been repealed by the latter one.
    That testimony by the holder of notes that they had been in her possession prior to the date of the maker’s death, and were in the holder’s possession at the time of such death, is evidence of the delivery of the notes, and is not incompetent under section 829 of the Code of Civil Procedure, as being testimony relative to a personal transaction with the deceased maker.
    That a non-negotiable note imports a consideration as against a devisee, and its production makes a prima fade case against him.

      Carnright v. Gray (57 Hun, 518) followed.
    That an action to charge a devisee with the debts of a testatrix, to the extent of the property devised, is one which falls within section 388 of the Code of Civil Procedure, directing that an action referred to therein be commenced within ten years after the cause of action accrues.
    That such an action is an equitable action, and one in rem, and is not an action for the recovery of money only, nor for the recovery of specific real property. That such an action to charge devisees must be brought, under section 1846 of the Code of Civil Procedure, against all the devisees jointly, and, therefore, a single defendant cannot interpose a counter-claim existing in her favor alone.

      Semble, that, in such an action, a counter-claim, arising out of a transaction between the plaintiff and one defendant, does not present one of the cases of a counterclaim contemplated by section 501 of the,Code of Civil Procedure.
    Appeal by the defendants, Mary Ann Chambers, William F. Chambers and William F. Fardon, from a judgment of the Supreme Court, .entered in the office of the clerk of -the city and county of New York on the 27th day of August, 1*89.1, after a trial at the New York Special Term, decreeing that certain real property formerly of Louisa Fardon, deceased, was devised, subject to the payment of a debt due the plaintiff, directing its sale and the payment to plaintiff of the amount of the debt, and apportioning such payment among the devisees according to their interests in such real property.

      O. Fine, for the appellants.

      W. J. Underwood, for the respondent.
   Andrews, J.:

This action is brought, under sections 1843 to 1850 of the Code of Civil Procedure, against the defendants, who are devisees under the will of one Louisa F. Fardon, for the purpose of charging upon real estate devised to them certain alleged debts of the testatrix.

Tlie complaint alleges the making by said testatrix of three certain promissory notes; that the plaintiff is the owner and holder of said notes; that on or about December twenty-fifth said testatrix died leaving a will, of which a copy is attached to the complaint. The complaint also alleges, in substance, that the testatrix by said will gave the defendant Mary Ann Chambers a life estate in all of her property, real and personal, with remainder to her husband, the defendant William F. Chambers, subject to the jiayment of an annuity of $150 to the defendant William F. Fardon, a son of the testatrix, and a lunatic. It is also alleged in the complaint that the assets of the testatrix were not sufficient to -pay the plaintiff’s debt in addition to the expenses of administration and debts of a prior class; also, that the real property of the testatrix which descended to her heirs was not sufficient to pay the plaintiff’s debt, and that the plaintiff could not collect her debt by an action against the heirs; that the value of the real estate devised to the defendants was $16,500, and that the same had not been aliened by them at the time when the action was brought. No jiersonal judgment against the defendants is asked, but the relief prayed for is, that such real estate shall be sold, and the plaintiff’s debt, with costs and disbursements, shall be paid out of the proceeds of such sale.

The defendants interposed answers, which set up general denials, fraud in obtaining the notes, and the six years’ statute of limitations. The answer of the defendant Mary Ann Chambers also contained a counter-claim for $1,040 for board alleged to have been furnished to the plaintiff; to which counter-claim the plaintiff served a reply containing a general denial. Judgment was rendered by the Special Term, in which it was found that the amount due to the plaintiff, together with costs, was $2,001.25. The judgment also appointed a referee to sell the property, and directed that the plaintiff’s debt and, costs should be paid out of the proceeds, and apportioned among the several defendants according to their interests, to be confuted and ascertained upon the principles of the Nortliamjrton Tables of -Life Annuities; and from such judgment this appeal is taken.

Quite a number of objections to this judgment, and the proceedings upon the trial ■ at Special Term, are raised by the counsel for the appellant. None of them seem to us of sufficient weight to justify a reversal of the judgment. It is objected that there was no competent or sufficient proof that the three notes upon which the action was brought, or either of them, were or was ever executed, signed or delivered by the testatrix. Upon the trial the plaintiff sought to prove the signature of the testatrix upon the notes by comparing such signatures with the signature which appeared upon a cel'tain bond which was put in evidence.

Counsel for the appellants claims that as the law stood at the time of the trial such comparison could not be allowed, because section 2 of chapter 36 of the Laws of 1880, which first authorized such coinparsions to be made, was, in effect, repealed by chapter 555 of the Laws of 1888, and the last named statute contained the following clause: “ But nothing within contained shall affect or apply to .any action or proceeding heretofore commenced or now pending.” We thinlc the learned counsel for the appellant is mistaken in his view as to the law applicable to this matter.

Chapter 555 of the Laws of 1888 is entitled “An act to amend ■chapter 36 of. the Laws of 1880, entitled An act to amend the laws ■of evidence and practice on civil and criminal trials,” and the first section thereof is as follows: “ Section 2 of chapter 36 of the Laws •of 1880, entitled An act to amend the law of evidence and practice on civil and criminal trials,” is hereby amended so as to read as follows:

The second section contains said section 2, as originally enacted, with some slight amendments.

It has been settled for many years in this State that when the legislature passes an act declaring that a previous act, or some part of the same, shall be amended “so as to read as follows,” the earlier act is not deeemed to have been repealed by the later one. This precise point was decided by the Court of Appeals in the case of Ely v. Holton (15 N. Y., 595), and a part of the syllabus, which states with accuracy the decision of the court, is as follows: “ The effect- of an amendment of a statute made by enacting that the statute is amended so as to read as follows,’ and then incorporating the changes or additions with so much of the former statute as is retained, is not that the portions of the amended statute which are merely copied without change are to be considered as having been repealed and again re-enacted, nor that the new provisions or the changed portions should be deemed to have been the law at any time prior to the passage of the amended act. The part which remains unchanged is to be considered as having continued the law from the time of its original enactment, and the new or changed portion to have become law only at and subsequent to the passage of the amendment.” In the case at bar, therefore, the provision of the act of 1880, which authorized the comparison of signatures, and which was re-enacted by the statute of 1888, was in force at the time of the trial; and the clause in the act of 1888 which declared that nothing therein contained should affect or apply to any action theretofore commenced or then pending, was a mere saving clause, which prevented the amendments made by the act of 1888 from affecting or applying to any action previously brought. The evidence objected to was, therefore, properly admitted, and the objection is not well taken.

It is further objected that such evidence did not establish a sufficient standard with which to compare the signatures of the notes in question. Upon the trial a witness called by the plaintiff’s counsel produced a bond and mortgage. The bond only appears to have been put in evidence. The witness who produced these papers testified that he was an attorney in this State, and, as the attorney of Mrs. S. E. Morgan, he held a bond and mortgage given by Lo,uisa F. Fardon to the Home Insurance Company, which were the ones produced by him in court; that he had the papers first about two years ago, and that they were still outstanding liens on the real property described in the complcdnt in this action, and that the witness had gone to the insurance company with an assignment of the same. Mr. Coman, also called for the plaintiff, testified that he was an attorney and was the subscribing witness to the bond, and that the name of the subscribing witness there was his own name and in his handwriting; that he saw that paper executed by Mrs. Louisa F. Fardon. He also testified as follows : I saw her sign it. I know her. • I searched the title and had to do with the getting of this bond and mortgage from Mrs. Fardon to the Home Insurance Company. I had charge of it. * * * I connect' Mrs. Fardon with some Rockland county transaction, in addition to this, but I cannot be more specific. * * * I have no doubt that Louisa F. Fardon, who is the mortgagor in .this instance, signed that in my presence.” It also appeared, by the testimony that the plaintiff was the sister, and that the defendant Mary Ann Chambers was the daughter of the testatrix; also, that the plaintiff had at one time lived with the testatrix, and at another time with said daughter; and that the testatrix, with her husband, had at one time lived upon the premises described in the complaint. We think that the evidence was sufficient to prove that Louisa F. Fardon, the testatrix, was the same Louisa F. Fardon who signed the bond, and that the signature to the bond was the signature of the testatrix; and this established a sufficient basis for a comparison of the signature upon the bond with the signature upon the notes. Mr. Ames, an expert in handwriting, was called as a witness for the plaintiff, and testified, in substance, that the signature of Louisa F. Fardon upon the notes was written by the same person who wrote the signature Louisa F. Fardon upon the bond. No contradictory evidence was offered by defendant’s counsel, although the defendant, Mary Ann Chambers, was called as a witness, and, as she appears by her evidence to have been an intelligent person, it may be fairly presumed that she was familiar with her own mother’s signature; and it is, therefore, somewhat significant that no attempt was made to prove by her that the signatures upon the notes were not the genuine signatures of her mother. Moreover, another significant fact is that when the plaintiff, the sister of the testatrix, was on the stand, she was asked .-this question: “ In whose, handwriting is the signature, and in whose handwriting is the body of each of these three promissory notes ■ which have been shown you?” This question was objected to by the defendant’s counsel, and the objection was sustained. We think that the making of the notes was sustained by the evidence.

It is also insisted by the counsel for the defendants that there was no evidence that the notes in question, or any of them, were or was ever delivered to the plaintiff, or that the testatrix ever negotiated or knowingly parted with the said notes.

The plaintiff, against the objection of defendants’ counsel, testified upon the trial that the notes in suit had been in her possession prior to the month of December, 1880, when Mrs. Fardon died, and were in her possession at the time of such death.

It is claimed that this was testimony in relation to a personal transaction with the deceased, and that under section 829 of the Code it was not competent. . We do not think this objection is well taken. In Simmons v. Havens (101 N. Y., 433) it was said: ‘£ Exception was also taken to the plaintiff being allowed to testify that she had the deed in her possession; and that the £ signature was in the handwriting of her mother; she was not asked, and did not state, from whom she received the deed; and her testimony as to the handwriting or the contents of the deed did not involve a personal transaction between her and her mother/ The plaintiff might have received the deed from some third person.” Counsel for the defendants, in his brief, points out some particulars wherein the case of Simmons v. Havens differs from the ease at bar. But the portion of the opinion above quoted is clear and explicit, and whatever differences between the cases may exist, we think that the decision in that case applies to and controls the case at bar. (See, also, Taber v. Willets, 44 Hun, 346; Greer v. Greer, 20 N. Y. Civ. Pro. Rep., 75; Wing v. Bliss, 8 N. Y. Supp., 500.)

The evidence was competent and proved the delivery of the notes by the testatrix to the plaintiff before the death of the former.

It is also objected that there was no proof of any consideration for said notes, or any of them, or that they represented a debt of the testatrix. Counsel concedes that the production of the notes might have made a prima facie case against the maker, but claims that the production did not have such effect as against a legatee or devisee, and he cites in support of this proposition section 1843 of the Code of Civil Procedure, Gere v. Clark (6 Hill, 350-352) and Mersereau v. Ryerss (3 N. Y., 261-263).

We have examined the statute and the authorities cited, but find nothing in them which sustains the view contended for. And in Carnwright v. Gray (57 Hun, 518) it was held that a non-negotiable note imported a consideration as against the executors of the deceased maker as well as the maker himself. If the question were .a new one, we should be inclined to adopt the views expressed by Learned, L, in the very able and exhaustive dissenting opinion which he wrote in that case, and hold that a non-negotiable note does not import a consideration against anybody. But that case itself holds to the contrary, and there is other authority to the same effect. If such a note imports a consideration as against the maker thereof and his executors, we see no reason why it should not also import a consideration against the devisee, who, for the purposes of the action, stands in the place of the deceased maker of the note.

It is also objected that the statute of limitations had fully run as to all the notes in suit, at least as to the defendant "William F. Fardon. The answer sets up the six years’ statute of limitations. The summons was served on the defendant Mary Ann Chambers-on October 27, 1886. The defendant William H. Chambers was not served, but appeared in the action on November 13,1886 ; William F. Fardon was not originally made a party, but on August 8, 1889, a supplemental summons and complaint were served, which brought him in as a party. The notes sued on are dated, respectively, May 1, 1879, May 1, 1880, and July 15, 1880. The defendant Mary Ann Chambers was executrix of the testatrix’s will, and received her letters testamentary in February, 1881. Under section 1844 of the Code this action could not be maintained except three years had elapsed since such letters had been granted, and, under the provisions of section 406 of the Code, such three years is not a part of the time limited for the commencement of the action. TJie defendants’ counsel concedes, and it would seem to be clearly the law, that the statute did not bar the action, under the circumstances of the case, until after the expiration of nine years from the date of the notes; and as the action was commenced against Mary A. and William F. Chambers in 1886, it is clear that, so far as they are concerned, the statute of limitations had not run. It appears, however, that the defendant Fardon was not served until August 8, 1889, and if the nine years’ limitation applies to this case, the debt had outlawed as to him, at the time said Fardon Avas served. To meet this -difficulty the counsel for the plaintiff claims that the nine years’ limitation does not apply, but that the case falls i within the provisions of section. 388 of the Code, which provides that any action, the limitation of Avhich is not othenvise specifically prescribed in the Code, must be commenced Avithin ten years after the cause of action accrues.

The question presented is not free from doubt, but the claim made by the plaintiff’s counsel in this regard is sustained by authority. Precisely the same question was presented in Wood v. Wood (26 Barb., 356) which was an action like the case at bar, and in which the same relief was sought. Balcom, J., who delivered the opinion of the court, said: The basis of the action is a debt which Jacob Wood, deceased, owed the plaintiff, but that is not the gist of it. It is not an action for the recovery of money only, although the ultimate object of it is to obtain money. Nor is it one for the recovery of specific real property, for the plaintiffs cannot have the land described in the complaint as the fruits of the litigation; but it is an equitable action to reach certain real estate which Jacob Wood, deceased, devised to the defendants, and to authorize its sale for the purpose of satisfying a debt that the deceased owed the plaintiff. It is strictly an action m rem. for no facts are set out in the complaint, and none were established on the trial, to support a claim against the defendants personally. It was not a case for a jury, but the issues in it were triable by the court (citing authorities). In other words, it is an action for equitable relief of which the Supreme Court had not jurisdiction prior to the enactment of the Code ” (citing authorities). It could, therefore, be commenced at any time within ten years after the cause of action accrued, either by the Revised Statutes or under the Code.” What is said by the learned judge about the nature of the action in that case ap>plies to the case at bar. The complaint does not ask for a personal judgment against the defendants, and the only relief prayed for is that the property described in the complaint shall be sold and the debt of the plaintiff paid out of the proceeds. The decision in that case was based upon the provisions of the former Code. But there is no difference between the provisions of that Code and the Code of Civil Procedure which would call for a different decision in the case at bar. While it must be admitted that the question is not free from doubt, we think that as it has been squarely decided, after argument, by another General Term of this court, we ought to follow such decision. The objection, therefore, that the action was not brought in time, as to the defendant Pardon, must be overruled.

It is also objected that the want of assets was not properly proved. We do not think this objection was well taken, for it was clearly established by the evidence that the personal property amounted to very little, and that what little there was, was expended in the payment of physicians’ bills, funeral expenses and other debts.

It is also claimed that the court erred in excluding evidence as to the counter-claim set up in the answer of the defendant Mrs. Chambers. We think, however, that the evidence was properly excluded. Under the provisions of section 1846 of the Code of Civil Procedure an action of this description must be brought jointly against all the devisees. There can be but one judgment in the action, and the provisions of section 1847, providing for the apportionment of damages and costs, does not render the action one against the devisees severally so as to enable a single defendant to interpose a counter-claim.

There can be no separate judgment between the plaintiff and the defendant Mary A. Chambers; and no recovery at all can be had against her individually. When the liability of the defendants is joint, and not joint and several, and a joint judgment only can be recovered, a counter-claim in favor of one of the defendants only cannot be allowed. (St. Michael's Church v. Behrens, 1 N. Y. St. Rep., 627; 10 Civ. Pro. R., 181; Vanderbilt v. Baldwin, 15 Abb. N. C., 312.) The plaintiff did not waive the objection that the counterclaim was not allowable by replying to -it. (Smith v. Hall, 67 N. Y., 48; Carpenter v. Manhattan Life, 93 id., 552; Kiersted v. West, 13 W. D., 106.) Moreover, as the action is an equitable one, to charge a debt upon the real estate, by virtue of the provisions of the statute, and the counter-claim was on an alleged contract between the plaintiff and the defendant Mrs. Chambers, it does not seem to be one of the cases provided for in section 501 of the Code.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and Barrett, J., concurred in the result.

Judgment affirmed, with costs.


text:
    SOMERVILLE P. TUCK, Respondent, v. JEROME F. MANNING, Defendant. WILLIAM W. WILSHIRE, Jr., as Ancillary Administrator of WILLIAM W. WILSHIRE, Deceased, Appellant, v. JEROME F. MANNING, Defendant. HENRY AMY, Appellant, v. JEROME F. MANNING, Defendant.

      Attachment — sheriff’s return — when unauthorized — power of the court to relieve one injured thereby.

    A sheriff is not required to return an attachment except where it is vacated or annulled.
    His return that it has been “merged in a judgment and execution,” obtained . subsequently in the same action, is an unauthorized act and of no effect.
    The sheriff cannot by such a return, and by the return of an execution unsatisfied at a time when, in fact, the execution debtor has property, deprive a creditor of a lien which he would otherwise have had, nor can he thus postpone the rights of such a creditor to those of subsequent attaching creditors.
    The court has both inherent and statutory power to restore the creditor, aggrieved by such action on the part of the sheriff, to his former situation, by canceling such returns to the attachment and execution, and directing the sheriff to apply the moneys received by him to the attachments in his hands in the order of their original priority.
    Appeals by William W. Wilsliire, Jr., ancillary administrator of William W. Wilsliire, deceased, plaintiff in the second-above entitled action, and by Henry Amy, plaintiff in the third-above entitled action, from an order, entered in the office of the clerk of the city and county of New York on the 19th day of January, 1891, confirming a former order made herein, and, among other things, ordering the sheriff of the city and county of New York to apjily the sum of $2,118.15, less his fees, upon an execution in favor of the plaintiff Somerville P. Tuck in the first-above entitled action.

      Fckoard Bartlett, for the appellant Wilsliire, Jr., as ancillary executor, etc.

      Theodore F. H. Meyer, for the appellant Amy.

      Grosvenor 8. Hubbard, for the respondent Tuck.

      W. Bourke Goehr an, for Grant, late sheriff.
   O’Brien, J.:

This appeal grows out of certain attachments issued to Mr. Grant, as sheriff, in the year 1889, against the property of one Manning. Each of the plaintiffs in the above-entitled action issued attachments, and each subsequently issued one or more executions, some against attached property and others not against attached property.

The sheriff, under the attachments, levied on a claim supposed to-be due Manning from Lawrence, Giles & Co. of this city. This firm denied the indebtedness to Maiming, and the sheriff returned one of the attachments and the execution in the case of Tuck unsatisfied, so far as this claim is concerned. Tuck commenced on January 14, 1887, an action against Manning, and procured a warrant of attachment, which was delivered to the sheriff, and which, on January 15, 1887, was served on Lawrence, Giles & Co., and a levy made with the usual notice. The latter firm gave a certificate that they had no property belonging to Manning.

Tuck recovered judgment, issued execution and collected a part of the judgment, and there is now due him two thousand two hundred and eiglity-two dollars and eighty-five cents ($2,282.85). On September 10, 1888, the sheriff returned and filed the execution with the clerk of the city and county of New York, indorsed with the amount collected, and that there was no property of the defendants in the county out of which he could cause to be made a levy for the residue, and at the same time returned and filed with the clerk the warrant of attachment, indorsed “Merged in judgment and execution issued July 10, 1888.”

Wilshire and Amy, the plaintiffs in the action above entitled Nos. 2 and 3, commenced actions against Manning and procured attachments, which were delivered to the sheriff, and by him served, and a levy made on Lawrence, Giles & Co., who in each case made the same return as in the Tuck action. These plaintiffs recovered a judgment, issued execution and collected nothing. On August 8, 1890, in an action in this court, brought by Lawrence, Giles & Co. against Tuck, Wilshire and Amy and Maiming and the sheriff, it was adjudged that at the time of the service of a levy under these three warrants of attachment on Lawrence, Giles & Co., they were indebted to the defendant Manning,' and they were ordered to and did pay to Grant, as sheriff, the sum of two thousand one hundred and seventy-eight dollars and fifteen cents ($2,178.15), the amount of the debt, less certain costs and expenses.

On October.15, 1890, an ex parte order was made in the action of Tuck v. Manning, that the sheriff take from the files of the county clerk the attachment and execution in said action, cancel the returns on them, and proceed thereon according to law. The sheriff, on notice to Tuck, Wilshire and Amy, moved to vacate this order, and upon such motion the order from which this appeal is taken was made. Upon this state of facts, which were agreed upon, it is insisted by Amy and Wilshire that the court had no power to make the order appealed from, for the reason, among others, that at the time the money determined to be due Manning reached the hands of the sheriff, he was destitute of process under which he could apply on Tuck’s judgment the money thus received; the Tuck attachment having been returned; the Tuck second execution having been likewise returned, and his third execution in the hands of the wrong officer. It is further claimed that at the time the ex pa/rte order of October 15, 1890, was made the judgment had been obtained by Tuck, on which one valid execution had been issued, and returned partly unsatisfied, from which appellants insist that the provisional remedy — that attachment, was thereby extinguished, and that it had no force or .validity whatever either at the time that the ex parte order was made or when the order now appealed from was made. This contention is predicated on the presumption that the attachment was then a dead process, and, like any other, process, when once dead was gone forever. If the appellants, were right in their views, either that the attachment was merged in the judgment or that the sheriff properly returned with the indorsement thereon the attachments and executions in the Tuck actions, then there would be much force in their positions. ■

We are of opinion, however, that the authorities, and a reading of the sections of the Code relating to the subject of attachments and executions, will not sustain the proposition that the return of the attachment was merged in, discharged, superseded, or in any way affected by the judgment; nor have we been referred to any provision of the Code which required the sheriff to return the attachments at all, excepting only where an attachment has been vacated or annulled. (Sec. 712.) Under the former Code (§ 242) it was provided that when the return shall be fully executed and discharged the sheriff shall return same; but the iiresent Code, by section 712 referred to, provides that where a warrant of attachment has been vacated or annulled the sheriff must forthwith file in the clerk’s office the return, with the indorsement of his proceeding thereon. In the Tuck action the attachment was neither vacated nor annulled, and, therefore, the return by the sheriff of the warrant of attachment to the county clerk, and the indorsement thereon, were unauthorized by law.

The sole question remaining, then, is, whether, in a case of this kind, where, through inadvertance, mistake or error, the sheriff makes an unauthorized return, the lights of the attaching creditor are to be impaired or defeated and the court be remediless to correct the error. It seems to us that, irrespective of any of the provisions of the Code of Civil Procedure, that this court, in regard to amendments, has the inherent power at any time to make any necessary order to correct the pleadings or proceeding in an action when the same is in furtherance of justice. In Christal v. Kelly (88 N. Y., 285-290) it was held that “ the power to amend process and pleadings is inherent in the court as a part of its ordinary jurisdiction,” and a reference to the cases will show that such power has been exercised. (People v. Ames, 35 N. Y., 482; Barker v. Binninger, 14 id., 270-278; Burnham v. Brennan, 42 Supr. Ct. R., 49, 76.) Apart, however, from this, sections 721 to 725 of the Code of Civil Procedure, and particularly section 725, expressly confer such power upon tlie court.

The appellants call our attention to the case of Pach v. Orr (112 N. Y., 670) wherein the Court of Appeals modified an order appealed from by striking out the words “ and the lien of said attachment is restored.” That was a case in which the attachment was granted and subsequently vacated ex jga/rte, and between that time and the time when the order restoring the attachment was granted certain confessions of judgment had been made, and executions levied upon the same property upon which the sheriff had levied under the attachment, prior to its being vacated. It is insisted that this is authority, although no opinion was delivered by the court, for the position that no other relief could be granted to the plaintiff in the attachment suit than would be afforded by setting aside the order vacating the attachment. If, however, the appellant had pursued his investigation farther he would have seen that in the case of Pach v. Gilbert (124 N. Y., 612), where the question of priority under that very attachment in the former appeal was in question, that it was determined in favor of the attaching creditors, and is a support for the position that the levy of the warrant of attachment on the debt of Lawrence, Giles & Company in the Tuck suit was not affected by the subsequent act of the sheriff.

We are of opinion, therefore, that the court had the power to make the order appealed from, and such power being discretionary we do not understand that it is claimed that the exercise of such discretion, upon the fact here' presented, was improper. If necessary, however, to decide that point, we think that the court having the power to make the order, its discretion was wisely exercised. The sheriff received the three attachments, that of Tuck on January 14,1887, that of Wilshire on February 12,1887, and that of Amy on May 8,1888. The return of the sheriff having been unauthorized, the court was then asked, in effect, to reinstate the original attachment and execution of Mr. Tuck, so that he would occupy the position that he would have been in had the attachment and execution remained in the sheriff’s hands continuously up to the time of the making of the application to the court. In the meantime neither Wilshire nor Amy did any act or acquired any rights predicated on the irregularity of the sheriff, nor were the rights of any other person intervening affected by the order appealed from.

We are of opinion, therefore, that the order should be affirmed, with costs.

Yan Brunt, P. J., and Lawrence, J., concurred.

Order affirmed, with costs.


text:
    BENAJAH M. MARTIN, Respondent, v. THE MANHATTAN RAILWAY COMPANY and Another, Appellants.

      Elevated railroads — rental damages not awarded for a time during which a building is in process of erection.

    In an action brought in September, 1889, by tlie owner of tlie fee of certain premises against the elevated railroads of New York city for damages and for an injunction, it appeared that tlie plaintiff purchased tlie premises in March, 1883; that after May 1, 1883, the building then upon the premises was pulled down and a new building was erected, which was completed in tiielf ollowing winter. Held, that the rental damages must be confined to a period of six years immediately prior to the commencement of the action.
    That no recovery could be had for the time during which the old building was being pulled down and the new one erected.
    That as, during that period, it could not have been leased the plaintiff could not have suffered loss of rent.
    Appeal by the defendants, the Manhattan Railway Company and the Metropolitan Elevated Railway Company, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 2d day of January, 1891, after atrial at the New York Special Term, awarding damages, to the fee of the land, of $5,500, and rental damages of $2,651.59, and also an injunction unless the damages to the fee of the land were paid.

      Julien T. Davies and A. O. Townsend, for the appellants.

      E. W. Tyler, for the respondent.
   Andrews, J.:

The rental damages allowed in this action were $2,651.59, and the fee damage was fixed at $5,500. We think there was an error in fixing the. rental damages which requires a reversal of the judgment.

The action was commenced on September 17, 1889, and rental damages could be recovered in this action for a period of six years only immediately prior to that date. (Cornell v. N. Y. El. R. R. Co., 37 N. Y. St. Rep., 621; Hamilton v. Manhattan Ry. Co., 58 Supr. Ct. R., 22; Kearney v. Metropolitan Ry. Co., 11 N. Y. St. R., 854.) Such rental damages were allowed from March 19,1883, the date when the plaintiff purchased the property, and they should have been allowed from September 17, 1883, only.

We also think it was error to allow rental damages for the period during which the old building was being pulled down and the present building was being erected. Such rental damages have been refused in several cases not yet reported, but which are cited upon the brief of the appellants’ counsel; and under the doctrine laid down by the Court of Appeals in the case of Tallman v. Metropolitan Elevated Railway Company (121 N. Y., 119) it is clear that such damages should not be allowed. In that case the court said: “ He can recover only the damages he sustains from day to day, or from month to month, or from year to year, in the use of his lots; and the question to be determined in such an action is, how much has the rental or usable value of the lots been diminished by the construction, maintenance and operation of the railway ? Asa basis for estimating the damages, the lots must be taken as they are used during the time embraced in the action, and the plaintiff’s recovery must be confined to the diminished rental or usable value of the lots justas they were.”

The evidence in this case shows that the old building, which was on the lot when the plaintiff purchased the property, was removed, and the construction of the building now on the lot was commenced, in the summer of 1883. The new building was finished sometime during the winter of 1883-81, and during the period while it was being erected it could not have been leased, and the plaintiff could not have suffered any actual loss of rent.

It is suggested by the plaintiff’s counsel that if the objections taken to the amount of rental damages should be sustained, the excessive amount could be ascertained by computation, and deducted from the judgment, and thus the necessity of a new trial be avoided. This, perhaps, might be done with reference to the amount awarded for the period from March 19, 1883, to September 17, 1883, but we cannot undertake to determine from the evidence in the case just what amount should be deducted for the period occupied by the removal of the old building and the erection of the new one.

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

Yan Brunt, P. J., and Barrett, J., concurred.

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


author: Putnam, J.:

text:
    JOHN S. HULIN, Respondent, v. NORMAN B. SQUIRES and Another, as Executors of FRANKLIN W. FARNAM, Deceased, and Another, Appellants.

      Will — a lapsed legacy — a general residuary clause — effect of words ‘ ‘ after payment of all legacies ” — prior bequests made payable out of the “ residue ” of the estate— limitation of the rule as to lapsed legacies.

    ■A testator, by his will, first gave certain specific legacies. He then, by the fifth, sixth, seventh and eighth clauses thereof, gave further legacies, each “out of and from the residue of my estate.” The tenth clause of the "will was as follows: “ All the rest and residue of my estate remaining after the payment of all the legacies, devises and bequests, hereinbefore specified or contained, I give, devise and bequeath to Farnam Philip Caird, and in case he shall not be living at the time of my decease, then, and in such case, I give, devise and bequeath the same to his mother. ” Caird was living when the testator died. A legacy given by the fifth clause lapsed.
    In an action brought to obtain a construction of the will in order to have it determined whether this lapsed legacy passed to Caird or to the next of kin of the testator:

      Held, that the words of the tenth clause were those of a general residuary clause, and carried the legacy to Caird.
    That this construction was not affected by the words “after payment of all the legacies,” etc., said words being descriptive of the residuary estate, and not to be deemed as words of limitation or exclusion.

      That tlie tenth clause of the will was not affected, as a general residuary clause, by the fact that in the fifth, sixth, seventh and eight clauses the testator had bequeathed legacies payable out of the “residue” of his estate.
    That the said clauses were specific legacies of a certain sum, payable in their order in case the testator left sufficient property, and that none of them disposed of a residue.
    That the word “residue” in these clauses was equivalent to the word “balance.” Limitations of the rule that a lapsed legacy passes by a general residuary clause, stated.
    Appeal by the defendant Farnam Philip Caird from an interlocutory judgment of the Supreme Court, entered in the clerk’s office of Rensselaer county on the 17th day of September, 1891, construing the will of Franklin W. Farnam, deceased, adjudging its fifth clause to be void and directing the distribution of the personal estate comprised therein, and a sale of the real estate, with notice of an intention to bring up for review upon such appeal the right of the appellant to take, as residuary legatee under said will, and such other matters pertaining to his rights as appear in the records and in the case.
    Also an appeal by Norman B. Squires and James Caird, executors of said Farnam, from so much of said judgment as adjudges that Franklin W. Farnam, deceased, died intestate as to all or any portion of the real or personal estate mentioned and described in the complaint or in said judgment, or attempted to be devised or bequeathed in and by clause V, or any other part of his last will and testament; and also from so much thereof as declares said clause Y invalid and ineffectual as a testamentary disposition of real or personal estate; and also from so much thereof as declares that the real or personal estate, or any part thereof mentioned in said clause Y, or any part of said will, or which said Farnam owned in his lifetime, descends or should be distributed, under the statute of distributions, to the heirs-at-law or next of kin of said decedent; and also from so much thereof as adjudges the parties, or any of the parties, named in said judgment as heirs and next of kin, to have or be entitled to any right, share or interest in or to any portion of the property mentioned or described in said clause Y, or of the estate of Franklin W. Farnam, deceased; and also from so much thereof as adjudges that the premises and real estate therein described, and the rights of all parties to this action, and particularly the rights of Farnam Philip Caird, residuary devisee, be sold at public auction, or in any manner, and that the referee therein named, or any referee, do any act whatsoever relative to said premises or the sale or title thereof; and from so much thereof as in any manner adjudges said premises or the property, or any portion of the property, mentioned or described in clause Y of said will to have descended or be distributable to any person save Farnam Philip Caird, named in said will as residuary legatee and devisee.
    The fifth, sixth, seventh and eighth clauses of the will of Franklin "W. Farnum were as follows:

      “Fifth. I give and bequeath out of and from the residue of my estate to the trustees of the Free Church of the Ascension, in the city of Troy (of which church the Rev. James Caird is now rector), the sum of twenty thousand dollars in trust. * * *

      “ Also, I give, devise and bequeath to the said trustees, of the'Free Church of the Ascension, in the city of Troy, the real estate and premises, consisting of a parcel of land, with the building thereon erected, known as the “ Farnam Institute,” situate on the northerly side of Congress street, in said city of Troy, and nearly opposite to the church edifice known as the Free Church of the Ascension, together with all the hereditaments and appurtenances thereunto belonging, or in any wise appertaining, to have and to hold the premises above described, to the said trustees of the Free Church of the Ascension, and their successors, forever in trust. * * *

      “Sixth. I give and bequeath out of and from the residue of my said estate, after the payment of the legacies, devises and bequests hereinbefore specified, to my niece, Carrie L. B. Caird, the sum of twenty thousand dollars, and to her husband, James Caird, the sum of ten thousand dollars. In case the said Carrie L. B. Caird shall have died before my decease, leaving issue, child or children, the said legacy to her shall not lapse, but the same shall be paid to such issue, child or children, share and share alike; and if she shall have died, leaving no issue, the same shall be paid to her husband.
    “ Seventh. Out of and from the residue of my said estate, after the payment of the legacies, devises and bequests hereinbefore specified, I give and bequeath to James Morton Caird, son of my niece, Carrie L. B. Caird, the sum of five thousand dollars.

      “ Eighth. I give and bequeath to my nephew, William Farnam, all promissory notes and obligations made or given by him to me, and all debts which he may be owing to me at the time of my decease. Also, out of and from the residue of my estate, provided it shall be sufficient for that purpose after the payment of all the legacies, devises and bequests contained in the preceding clauses of this will, I give and bequeath to the said William Farnam the sum of live thousand dollars.”
    The tenth clause of the will is set forth in the following opinion:

      Edwin A. King, for the executors, appellants.

      P. A. Pcmnenter, for Farnam Philip Caird, appellant.

      E. Countryman, for the respondent.
   Putnam, J.:

The controversy in this case arises out of the construction of the will of Franklin W. Farnam, deceased. By the fifth clause the testator gives to a religious corporation in the city of Troy $20,000 and certain real estate, and the will having been executed within two months prior to his decease it is conceded that this clause is void under chapter 319 of the Laws of 1888. The matter to be determined is the interpretation to be given to the tenth clause of the will, which is as follows:

“ Tenth. All the rest and residue of my estate remaining after the payment of all the legacies, devises and bequests hereinbefore specified or contained, I give, devise and bequeath to Farnam Philip Caird, and in case he shall not be living at the time of my decease, then, and in such case, I give, devise and bequeath the same to his mother, Carrie L. B. Caird.”

The question submitted is, does the property attempted to be bequeathed and devised in the fifth clause of the will pass to the residuary legatee and devisee under said tenth clause or, as held by the trial court, go to the heirs and next of kin ?

The counsel for respondent insists, and I understand the trial court to have, in substance, held that the tenth clause was not a general residuary, but a specific residuary clause (so to call it).

The principles applicable to general residuary bequests are well settled. In Piker et al. v. Cornwell et al. (113 N. Y., 124) the court lays down this doctrine: “ A general residuary clause includes in its gift any property or interest in the will which, for any reason, eventually falls into the general residue. It will include legacies which were originally void, either because the disposition was illegal or because for any other reason, it was impossible that it should take effect; and it includes such legacies as may lapse by events subsequent to the making of the will. It operates to transfer to the residuary legatee such portion of his property as the testator has not perfectly disposed of.”

In the Matter of Bonnet (113 N. Y., 524) it is said: “We hold that, unless a contrary intent unequivocally appears elsewhere in the will, a lapsed or void legacy will be carried by a general gift of the residuum of the testator’s estate.”

In the Matter of Benson and Others (96 N. Y., 510) the court quotes with approval the remark in Banks v. Phelan (1 Barb., 80), that the only exception to the general rule is “ when the words used in the will expressl/y show am intention on the part of the testator to exclude such portions of his estate as are mentioned in a/ny of the previous clauses of the will from falling into the general residue^ (See, also, Floyd v. Carow, 88 N. Y., 568; Rogers v. Case, 18 W. Dig., 170; King v. Strong, 9 Paige, 91; 2 Redf. Law of Wills, 115, note.)

In the tenth clause the testator gives and bequeaths all the rest and residue of his estate’ remaining after, the payment. of all the legacies, devises and bequests hereinbefore specified or contained to Farnam Philip Caird. The language is that of a general residuary clause. The sentence therein “ after the payment of all the legacies, devises and bequests hereinbefore specified or contained,” does not prevent it from so being considered.

In Riker v. Cornwell (supra) it was insisted that the words in the second clause of the second codicil, “ after payment of all the legacies and carryimg out all of the trusts and provisions madef were words of exclusion and which indicated an intention to give only a specific legacy. The court held there was no force in the suggestion.

In Banks v. Phelan (1 Barb., 91) the court remarked: “ It was contended upon the argument that the words, if any there shall be after paying the preceding legacies, devises and bequests,’ contained in the parenthesis of the residuary clause, bring this case within the exception to general rule. A reference to the adjudged cases will show that similar words used in the residuary clause have not been considered sufficient to limit a residuary disposition to any particular or partial residue.”

In King v. Woodhull (3 Edw. Chan., 84) the vice-chancellor remarked: “‘ After payment of debts and legacies,’ or, after payment of legacies specified or recapitulated in the residuary clause itself, are not restrictive of the bequest to any particular or partial residue; but the bequest after all is general of the remainder, and may be so understood without doing violence to the expressions of the will. Where the residuary clause is thus worded, the legatee is as much a general legatee of the residuum of the estate, as if such words were not used. In some of the cases, where the court has decreed the residuary legatees entitled to the benefit resulting to the estate from laj>sed or void bequests, the language •of the will has been stronger in favor of a construction which would exclude them than in the present case. I will instance only two — Shanley v. Baker (4 Ves., 732) and Roberts v. Cooke (16 id., 451).”

The case of King v. Woodhull, affirmed in 9 Paige, 94, is cited with approval in Riker v. Cornwell (113 N. Y., 127), and in many other cases, and may be deemed a reliable authority.

The learned judge at Special Term, in his opinion, says: “ When we reach the tenth clause the testator does not give ‘all the rest and residue of my estate ’ to Farnam Philip Caird, but he qualifies and circumscribes the residue by clear expression of unmistakable import, namely, ‘ remaining after the payment of all the legacies, devises and bequests hereinbefore specified or contained.’ Clearly whatever residue it is, is the residue remaining after the payment ■of all the legacies, not of those effectually given, but specified or contained in the will, whether valid or not, otherwise why add the words of definition, description or limitation ? If these words are to be stricken out the purpose of the testator in adding them is to be thwarted.”

I cannot answer this j>osition of the court below better than by quoting an extract from the opinion of Judge Gray in the Pdker ease: “ The words upon which the appellants lay so much stress as being words of exclusion and limitation are used by the testatrix ratlier as words of description of a general residue. They might have been omitted without any prejudice to the intention. But their retention works no confusion of thought. That which is remaining after carrying out all the trusts and provisions made by me in my will and codicils ’ is the fund, which is only completely ascertained when the previous dispositions have been effectuated. The very sense of the words implies the negation of the idea of a specific or fixed residue outside of the sum of the previous gifts in the will. If the ‘ carrying out ’ of the provisions of the will and codicils is defeated to any extent, to that extent the residuary fund is increased by the accretion of the void or lapsed gift.” (See page 126.)

I think, then, that the above quotations show that the said tenth subdivision of the will, being in form a general residuary clause, is not prevented from being deemed such by the words “ after the payment of all the legacies, devises and bequests hereinbefore specified or contained.”

Is it affected as a general residuary bequest, because in the fifth, sixth, seventh and eighth clauses of his will the testator has bequeathed certain legacies to be paid out of the “ residue ” of his estate %

In King v. Woodhull (supra, see page 80), the testatrix willed the residue of the proceeds of her estate, if it did not exceed $1,000, to a Missionary Society, and the residue and remainder of her estate, after the payment of said $1,000 to said Missionary Society, if any there shall be, she bequeathed to the children of her niece. The legacy to the Missionary Society lapsed and it was held that a residuary legatee took the money. That case, then, is an instance of a general residuary bequest after a specific bequest out of the residue, held valid.

It is, undoubtedly, the rule that a bequest of a residue of a residue will not ordinarily carry a lapsed legacy. (Kerr v. Dougherty, 79 N. Y., 346; Beekman v. Bonsor, 23 id., 298-312; Riker v. Cornwell, 113 id., 125, 126; King v. Woodhull, 3 Ed. Ch., 82.)

In the case last cited it was held that “ to entitle a residuary legatee to the benefit of a lapsed or void bequest, however, he must be a legatee of the residue generally, and not partially so; for, where it is manifest, from the express words of the will, that a gift of the residue is confined to the residue of a particular fund or description of property,. or to some certain residuum, lie would be restricted to what is thus particularly given, since a legatee cannot take more than is fairly within the scope of the gift.

In Kerr v. Dougherty (supra) there was, in fact, no general residuary clause. The case is considered and explained fully in the Matter of the Accounting of Bensen (96 N. Y., 499) and in the Hiker case (supra, at page 127). And in the latter case, at pages 125, 126, is illustrated the difference between a general bequest and a bequest of a particular residue. The distinction between a devise of a particular residue, as so illustrated in that case, and that of a general bequest by the testator of all the residue of his estate as in this case, must be apparent. The legacies contained in the fifth, sixth, seventh and eighth clauses of the will in question are specific legacies of a certain sum, payable in the order named, in case testator left sufficient property. There is no residue disposed of in these clauses. These are not specific residuary legacies. The testator wills a certain sum of money to each legatee in the order named, payable from the balance of his estate. The effect in meaning of the will would have been the same had he used the word “ balance ” instead of residue.”

The effect of the will in question is by the first four clauses to bequeath certain legacies to the parties named. Then out of the balance of his estate to pay the specific legacies as specified in the fifth, sixth, seventh and eighth clauses in the order named, and the residue of all his estate he bequeathed to Farnam Philip Caird. The gift in the tenth clause is not of any particular part of the estate of the testator, or any partial fund. It is a gift, by its terms, of the whole residue of the estate. In the language of King v. Woodhull (supra) Caird is a legatee of the residue generally.”

Plaintiff claims that by the will in question, after the first four clauses, there are successive residuary legacies, beginning with the words “ I give and bequeath out of and from the residue of my estate, after the payment of the legacies,” etc., thereinbefore specified, and ending with the tenth clause, in which the same language is used, and he infers that the will evinces a plain intent of the testator that the residuary legatees in each case, including said tenth clause, shall only take the residuum after paying prior legacies, and hence that the tenth clause is a specific residuary clause, and not a general one.

The answer to this proposition is (what has been before stated) that neither the fifth, sixth, seventh or eighth clauses of the will contain residuary bequests. Each of said clauses wills or bequeaths specific legacies of money or property. The word “ residue ” is used, but the testator might as well have used “ balance.” He wills in each case a sum of money if after paying the former legacies his estate is sufficient. Neither the fifth, sixth, seventh or eighth clauses wills a residue. A “residue” is a “remainder,” “what is left,” “ the rest.” These clauses will a specific sum of money in each case payable from the balance of the estate of the testator, and not a residue. Then comes the tenth clause in question, in which the testator wills not any specific sum of money or property, but all Ms estate to the residuary legatee. He does not so bequeath the residue after paying the legacy specified in the fifth, sixth, seventh and eighth clauses, but the residue after paying all the legacies, including the first four. Suppose the first three legacies in the will had lapsed, can there be any reasonable doubt but what the language of the tenth clause is sufficient, under the authorities above quoted, to carry such lapsed legacies to Earnam Philip Caird ? If the bequest contained in the tenth clause was in any way limited in its language so as to evince any intent on the part of the testator not to dispose of all of his estate, we might come to a different conclusion, but the language is general, except the words “ after the payment of all legacies,” etc. And these words, as we have seen, are words of description, and not words of limitation or exclusion.

There are cases where a gift of the rest and residue does not carry a lapsed legacy, as, for instance, where a testator having disposed of all his estate, but certain specific property described in his will, bequeaths such residue to two persons in certain proportions. If the legacy to one lapses the other will not take, although to him was bequeathed the rest and residue of such residuum. Such was the instance referred to in Riker v. Cornwell (supra, page 126). Such a legacy is, in fact, specific, and not residuary, and the intent of the testator appears clearly not to give all the residuum to the survivor, but only a specific part of the same.

Another case is where the whole residue of the estate is given to several persons, one of whom dies before the testator. In that case the others do not, under the will, take the share of the one so dying. Such are the cases of Matter of the Accounting of Bensen (96 N. Y., 502, 503); Mount v. Mount (3 N. Y. Supp., 190); Beckman v. Bonsor (23 N. Y., 299). In such a case the testator, hy the very terms of the will, only gives to the survivor a certain share of the residue, and he cannot take more than the will gives him. The object in all these cases is to ascertain the intent of the testator as indicated by the language of the will. And in such a case the language of the testator is plain. In the case we are considering the devise is general of “ all the rest cmd residue; ” and bearing in mind the doctrine laid down by the highest appellate court in this State in many cases, that unless a contrary intent unequivocally appears elsewhere in the will, a lapsed or void legacy will be carried by such a general gift of the residue, I think the bequest contained in the tenth clause carries to Farnam Philip Caird all the estate of the deceased not validly disposed of by the will, including that part of his estate attempted to he given and bequeathed in the fifth clause.

It follows there should be a reversal of the judgment. The will should be construed in- accordance with this opinion, and the complaint should be dismissed.

Mayham, P. J., and Herrick, J., concurred.

Judgment reversed and final decree to be settled by Putnam, J.


author: Herrick, J.:

text:
    HELEN M. JENNETTE, Respondent, v. JOHN A. SULLIVAN, Appellant.

      Breach of promise to ma/rry — when sexual intercourse may he shown although not alleged — measure of damages.

    In an action brought to recover damages for a breach of promise to marry, the complaint alleged the promise and its breach, which the answer denied.

      Held, that, upon the question whether such a promise was ever made, the plaintiff might prove sexual intercourse although it was not alleged in the complaint.
    That the jury had a right to consider it upon the question of damages if they found that the sexual intercourse was caused by the promise.

      Appeal by the defendant Jolin A. Sullivan from a judgment of the Supreme Court, entered in the office of the clerk of the county of Clinton on the 13th day of April, 1891, upon a verdict for the plaintiff for $1,500, after a trial at the Clinton Circuit before the court and a jury.

      Shedden db Booths for the appellant.

      Weeds, Smith dé Co?iway, for the respondent.
   Herrick, J.:

This is an action for breach of promise of marriage; the complaint merely alleges the promise and its breach, the answer is a denial; the jury at the trial found a verdict for the plaintiff in the sum of $1,500.

The only questions argued before us upon this appeal are in relation to the reception of evidence of sexual intercourse between the plaintiff and defendant, and the charge of the court that the jury had the right on the question of damages to take into consideration the seduction of the plaintiff, if they determined that the seduction was caused by the engagement of marriage, and also that the damages-awarded by the jury were excessive. The grounds of objection to the evidence of sexual intercourse were that it was immaterial, and that there was no allegation in the complaint of illicit intercourse or seduction.

It was denied by the defendant in his answer, and also when upon the stand as a witness, that he ever promised to marry the plaintiff, or that there was ever any engagement of marriage between them. The question as to whether there was any such engagement was sharply litigated upon the trial.

It needs no citation of authorities to show that where the promise of marriage is denied, that it may be found by circumstances, by attentions bestowed, the nature and description of those attentions, the intimacy between the parties, their relation with and behavior to each other. As a part of the history of the relations between the plaintiff and defendant, and where an express promise to marry is denied by the defendant, it seems to us competent to prove sexual intercourse and resulting motherhood of the plaintiff, although not alleged in the complaint, and that the jury have a right to consider sucli evidence on the question of damages. (Wells v. Padgett, 8 Barb., 323; Hotchkins v. Hodge, 38 Barb., 117; Kniffen v. McConnell, 30 N. Y., 285.)

The damages awarded by tbe jury do not seem to be excessive for a cause of action such as this, and tbe judgment should not be disturbed because of their amount.

Let tbe judgment be affirmed, with costs and printing disbursements to tbe respondent.

Mayham, B. J., concurred; Putnam, J., not acting.

Judgment affirmed, with costs and printing disbursements.


text:
    EUGENE S. CLARK, Appellant, v. CHARLES W. LUDE, Respondent.

      Jurors — power of the court to direct a jury, before dismissed, to retire and fix the wmount due xohere the amount is not disputed — affidavits of jurors.

    ..In an action brought to recover the value of goods sold there was no contest upon the trial as to the amount due. The court charged the jury that the only question was whether the contract of sale was legal. The jury retired, sealed their verdict and separated for the night. The verdict read-. “We, the undersigned jurors; find a verdict for the plaintiff.”
    Upon the following morning, and before the jury had been dismissed, the plaintiff’s counsel asked the court to direct the jury to retire and fix the amount of the verdict. This request was refused and the court set the verdict aside.

      Held, that such action was improper.
    That the court had the power, and it was its duty, to correct the informality in the verdict.
    That, upon a motion to vacate an order setting aside the verdict and for a new trial, affidavits of the jurors to the effect that they supposed it was unnecessary to state the amount due the plaintiff were competent in support of their verdict;
    Appeal by tbe plaintiff Eugene S. Clark from an order of tbe Albany County Court, entered in tbe office of tbe clerk of tbe county of Albany on tbe 18tli day of January, 1892, setting aside tbe verdict herein as irregular and granting a new trial; and also from an order, entered in said clerk’s office on tbe 21st day of January, 1892, denying a motion to vacate an order setting aside tbe verdict and directing a new trial, and to correct said verdict by making it conform to the intention of the jury.

      T. F. Wilkinson,'for the appellant.

      J. W■ Eoker, for the respondent.
   Herrick, J.:

This action was brought to recover $368.90, the purchase-price of some tobacco alleged to have been sold by plaintiff to defendant. The evidence is not before us, but apparently there was no question as to the amount of the claim, but as to whether there was a legal contract of sale between plaintiff and defendant.

The court, in its charge to the jury, .said: “ The price agreed upon was $368.90, which amount the plaintiff asks now to recover, with interest added to it from the first of January. If that contract was a legal contract, plaintiff is entitled to recover the full amount, principal and interest, from the first of January last, because the tobacco by the agreement was to have been paid for during the year 1890. The only question is, c Was that a legal contract.’ ” No exception was taken to this charge. The jury retired and the following morning presented a sealed verdict in these words, “We, the undersigned jurors, find a verdict for the plaintiff.”

The plaintiff’s counsel requested the court to direct the jury to retire and fix the amount they find for the plaintiff, the jury being yet present, not having finally separated. The court refused, on the ground that the jury had separated over night and it was a sealed verdict, and stated that it was irregular in not stating any amount, and for that reason he ivonld set it aside and direct a new trial. Whereupon the motion of defendant to set aside the verdict and direct a new trial was granted on the ground stated by the court. From that order the plaintiff appeals to this court.

After the making of such order, and at the same term of the court, the plaintiff moved to vacate the order setting aside the verdict and ordering a new trial, and to correct the verdict to make it conform to the intention of the jury. Upon such motion, in addition to the minutes of the trial, the affidavits of all the jurors, under objection by the defendant to the use thereof, were read, showing that they supposed it was not necessary to state the amount, deeming a finding in favor of the plaintiff sufficient to entitle him to the recovery of the amount claimed, with interest. This motion was also denied, and from the order denying such motion the plaintiff has taken a separate appeal to this court. Both appeals will be considered together.

The affidavits were properly received to make manifest what the verdict meant, not to impeach or reverse it. (Dalrymple v. Williams, 63 N. Y., 361; Hodgkins v. Mead, 5 N. Y. Supp., 433; S. C., affirmed, 119 N. Y., 166.)

The amount of the debt was unquestionable. 'Whether or not the plaintiff was entitled to recover it from the defendant was a question of fact for the jury, and the only question for them to pass upon; the amount of the debt was the measure of recovery. They were told by the court that the only question for them was, was the contract a legal one, that the amount was agreed upon.

When, therefore, the jury found a verdict for the plaintiff their meaning was plain, and it was within the power of the court to cause them to correct the irregularity. (Hatch v. Atrill, 118 N. Y., 383.) And the refusal of the court to correct the verdict “on the ground that the jury had separated over night and it was a sealed verdict,” if the court meant by that that for those reasons it had no power to send it back for correction, was error.

It has been held that when a jury has been authorized to bring in a sealed verdict, and has found it, put it in writing, sealed it, has separated, has come together the next morning and given it, and it has been entered upon the minutes of the court, yet that it is within the power of the court to send it back to the jury for correction, the jury not yet having been dismissed. (Warner v. N. Y. C. R. R. Co., 52 N. Y., 437-440.)

Here the meaning of the jury is evident, they find for the plaintiff; the amount is agreed upon at $368.90, with interest, which is a matter of computation, and appears to be fifteen dollars and sixty-four cents, in all $381.51; and when the only question in controversy has been settled by the jury it would be a serious reflection upon the administration of justice to say that the case must be tried over again to correct an informality that can be corrected at once to make the verdict in all respects conform to the manifest and plain intent of the jury.

In a somewhat similar case, where no sum had been specified, the Court of Appeals uses this language. The plaintiff is entitled to recover a sum certain, known, conceded, if entitled to recover anything. The only issue in the case is one as to what the contract Avas, and if not what the plaintiff alleged it to be, then the defendant was entitled to a verdict. This is acquiesced in and conceded by the defendant. The judge so charges and states the precise sum that the plaintiff is entitled to if he has a verdict in his favor. The jury agree upon a verdict and write it down in favor of the plaintiff, in accordance with the agreement arrived at by them, and they agree upon the sum named by the court. In such a case of absolute, uncontradicted facts, Avhere a certain, definite, conceded amount follows a verdict for the plaintiff as certainly as the night follows the day, it seems to me a. mere travesty or mockery of justice to hold that no legal verdict has been arrived at; that the court is powerless to aid, and that the plaintiff must lose the benefit of the trial and the verdict actually agreed upon, and both parties must be put to the expense of proceeding de novo to a trial of the cause.” In that case the court, some days after the verdict was reached, corrected the verdict itself. (Hodgkins v. Mead, 119 N. Y., 166-171; see, also, Bohlen v. M. E. R. R. Co., 121 id., 546; Segelke v. Finan, 48 Hun, 310.)

The orders of the County Court must be reversed, and the plaintiff have judgment on the verdict as corrected for the sum of $384.54, with the printing disbursements and the costs of one appeal.

Putnam, J., concurred; Mayham, P. J., not acting.

Order of the County Court reversed, and Arerdict of jury corrected and judgment in County Court upon verdict, with printing disbursements and costs of one appeal.