text:
    The Allison Brothers’ Company, Respondent, v. Oscar W. Allison, Appellant.

      Assignment of patents, by an inventor• — contract as to improvements thereafter invented by him —• evidence of conversations with a person since deceased.

    An inventor and patentee of improvements in cigarettes and in machines for making cigarettes, assigned to other persons, in consideration of money invested by them in the business of manufacturing and selling, in partnership with him, cigarettes and cigarette machines, shares in his patents by written contracts, which included “ any improvements, renewals or reissues of said cigarettes and cigarette machines or letters patent,” and “new patents, machines, machinery or appliances which may be obtained or used in connection with said business.” Thereafter the parties formed a corporation to carry on the business, to which the entire assets of the firm, including the patents and all the interests acquired under said contracts were transferred, and the stock in which was divided among them. The inventor afterwards practically severed his connection with the company, and applied for and obtained a number of different patents for improvements in cigarette machines, none of which were infringements upon any of his former patented inventions, and made agreements with other parties for the manufacture and use of such improved machines. The company thereupon brought an action to restrain the inventor from manufacturing, or selling any of the machines, and to have each of the said patents adjudged to be its property, and to be assigned to it.

      Held, that the contracts, read in the light of surrounding circumstances, were to be construed as vesting in the plaintiff company the right to any and all inventions made and patents reissued to the defendant at any time, for improvements in cigarette machines or cigarettes, and hence, that the plaintiff was entitled to the relief demanded.
    The plaintiff in its complaint asked for and obtained in the trial court a reformation of the contracts in question by adding thereto words more clearly providing that they included patents for improvements issued after the date of the contracts.

      Held, that while it appeared that the contracts without amendment sustained the plaintiff’s contention, still the evidence fully justified the trial court in holding that they should be reformed in accordance with the disclosed intention of the parties that the contracts should carry any and all inventions of the defendant relating to the improvement of cigarette machines thereafter made
    The defendant had originally assigned to his brother a half interest in his original patents, and this brother was a party to the contracts and to the formation of the company, but had since died; on the trial, one of the other parties to the contracts and, as such, a stockholder in the plaintiff company, testified in relation to conversations in which the deceased brother had taken part; this evidence was objected to by the defendant as incompetent under section 829 of the Code of Civil Procedure.

      Held, that as the defendant was not the executor, administrator or survivor of his deceased brother and did not derive his title or interest in the patents in suit from, through or under him, by assignment or otherwise, the prohibition of said section 829 did not apply to the case.
    Appeal by the defendant, Oscar "W". Allison, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Monroe county on the 22d day of March, 1892, upon a decision of the court rendered after a trial at the Monroe equity term.
    The action was brought to restrain the defendant from manufacturing, selling or furnishing to any person or corporation, to be used in any form for the manufacture of cigarettes, any of the machines referred to in the complaint, and from granting any license to use or make the same, and to obtain a reformation of certain contracts and to have certain patents adjudged to be the plaintiff’s property and to be assigned to it.

      Theodore Bacon, for the appellant.

      John Ycm Yoorhis, for the respondent.
   Lewis, J.:

The plaintiff is a domestic corporation. Its business is that of manufacturing and selling cigarettes and cigarette machines.

The defendant, prior to the times hereinafter mentioned, had invented new and useful improvements in machines for manufacturing cigarettes. He had also invented improvements in cigarettes. Letters patent had been issued to him for said inventions, and in connection with a Mr. Kimball of the city of Rochester, he had been engaged in business relating to said inventions.

Thereafter, and in the year 1882, the defendant and his brother, -John A. Allison (who had by assignment from Oscar become the half owner of the patents) and Mr. E. He Witt Clark, formed a copartnership for the manufacture and sale of cigarettes and cigarette machines in the city of Rochester. Clark put in as working capital $5,000, and the Allisons, in consideration of said advancement by Clark, assigned to him an interest in said patents. The business was started, and in a short time the money invested by Clark was exhausted, and thereupon a written contract, dated October 9, 1882, was made by the parties, by the terms of which the Allisons for a good consideration paid by Clark, each assigned and transferred to Clark one-sixth of their respective interests in and to said letters patent “ for an improvement in cigarettes and cigarette machines, and any improvements, renewals or reissues of said cigarettes and cigarette machines or letters patent, same to be held and enjoyed by said E. He Witt Clark for the whole of the United States, and to the full end of the term for which said letters patent were granted, and for the term of any extension of any improvements thereof or reissue or reissues thereon, as fully and entirely as the same would have been held and enjoyed by us (the Allisons) if this agreement and sale had not been made, meaning hereby to vest in said F. De "Witt Clark one undivided third of said patents, extensions or improvements thereof, and we do each of ns, said Oscar W. Allison, John A. Allison and F. De Witt Clark each mutually agree with the other that neither of us will sell, dispose of, license or grant any portion of our said interest in and to same to any person or persons or corporation without the> written consent of the other two being first obtained therefor, and any such transfer shall be void in the absence of such written consent being obtained.”

Clark thereupon advanced the further sum of $10,000, which was put in and used in the business. And the exigencies of the business requiring more money, on the 5th day of February, 1885, the Allisons and Clark entered into a written agreement with one Frederick P. Allen, by which Allen became the owner of a quarter interest in the patents and business, paying therefor the sum of $25,000. The agreement recites that in consideration of that sum paid by Allen, the Allisons and Clark of the first part, do hereby sell, assign and convey to the party of the second part (Allen), the machinery, stock, etc., now used and owned by said parties of the first part, in the manufacture of tobacco, cigarettes, etc., under the firm name of Allison Brothers & Company, as well as new patents, machines, machinery or appliances which may be obtained or used in connection with said business; and the parties of the first part do hereby covenant and agree to make all proper assignments of patents, etc., for that purpose .whenever desired. The intention of this agreement being that each of said parties of the first part and second parts shall have and hold each respectively an undivided one-fourth interest in all the patents and improvements on same which may hereafter be made, machines, stock and business of the firm of Allison Brothers & Co.”

Allen advanced the $25,000, and the business was continued in the name of Allison Brothers & Co. Clark and Allen continued to make advances for -the benefit of the business until all the advances aggregated about $75,000. Thereafter, by mutual agreement between the parties, a corporation was formed by the name of the Allison Brothers Company,, being the plaintiff herein, and the entire assets of the firm of Allison Brothers & Co., including the patents and all the interests acquired by the contracts were transferred to the plaintiff corporation. The capital stock of the corporation was fixed at the stun of $250,000, which was equally divided amongst the four partners.

During all the times mentioned, the defendant was the general manager of the business, and was engaged in inventing improvements in the cigarette machines; and during such time he invented an improvement in the cigarette machine, which was duly patented in the name of the plaintiff, and he also prepared plans for still another improvement, which was thereafter patented, and was one of the five patents hereafter mentioned. The defendant was paid a salary by the firm for his services.

The Allisons, soon after the formation of the corporation, sold and transferred to Allen and Clark the most of their stock in the corporation. John soon thereafter died and Oscar practically severed his relations with the company and devoted his attention to inventing improvements in cigarettes and cigarette machines, and thereafter applied for and obtained five different patents for improvements in said machines in his own name. It was conceded upon the trial of the action, that neither of these five patents was an infringement upon any of the prior inventions of the defendant which had been patented. The defendant finally entirely severed his relations with the plaintiff, and after obtaining said five patents he entered into agreements with other parties to manufacture and use his improved machines, and sold said five patents to parties in New York for the sum of $100,000. These patents having been obtained by the defendant after the commencement of this action, an order was granted permitting the plaintiff to serve a supplemental complaint so as to include the said five patents in the relief asked for in the complaint, and the supplemental complaint was accordingly served. In the specifications for each of said five patents Allison states that he had invented new and useful improvements in cigarette machines, and describes the characteristics of the improvements.

The oral evidence quite satisfactorily establishes that it was represented by the defendant from time to time during the negotiations of the parties prior to executing the several contracts, that the machines were still crude and imperfect, and that the skill and genius of the defendant would be requisite and would be at the service of the company in inventing improvements and perfecting the machines, and that the company should have the use and advantage of the defendant’s inventions in the business, and it is apparent that Clark and Allen would not have consented to invest in the enterprise the considerable amount of money they did had there not been such an understanding.

The contention of the parties arises over the construction to be given to these various contracts, the plaintiff contending that they not only vest in it the machines and patents in existence at the dates of the contracts respectively, but that in addition thereto they include any and all patents which might at any time thereafter be obtained for inventions for improvements in cigarette machines or cigarettes made by the defendant.

The defendant, on the contrary, claims that the contracts only cover the inventions and machines in existence at the date of the contracts respectively. The contracts were unskillfully drawn. The phraseology used does not, with entire clearness, sustain the construction claimed by the plaintiff. Read, however, in the light of the surrounding circumstances as disclosed by the evidence, we incline to adopt the construction contended for by the plaintiff and hold that without reformation or amendment they vested in the plaintiff the right to any and all inventions made, and patents issued to the defendant at any time, for improvements in cigarette machines.

Giving the construction to the contracts contended for by the defendant, we are not able to see the meaning of the sentence in the contract of date October 9, 1882, “And for any improvements, renewals or reissues of said cigarettes, and cigarette machines or letters patent,” nor the meaning of the sentence in the contract of February 5, 1883, as follows: “ As well as new patents, machines, machinery or appliances which may be obtained or used (in connection with said business, and the parties of the first part do hereby covenant and agree to make all proper assignments of patents, etc., for that purpose whenever desired. The intention of this agreement being that each of said parties of the first part and second parts shall have and hold each, respectively, an undivided one-fourth interest in all the patents and improvements on the same which may hereafter be made.” If the sentences quoted above are not surplusage, if they have any meaning, they were intended to provide for any improvements, renewals or reissues of patents which might be thereafter made or granted, as well as those already made or granted.

The words “ improvements, renewals and reissues,” when used in connection with patents, have a well-understood meaning.

The United States Revised Statutes provide for patenting any new or useful machine, or any new or useful improvement thereof. The applicant is required to state whether he is the inventor of the machine or improvement which he desires patented.

Curtis says in his work on Patents, section 22: “A patent for the improvement of a machine is the same thing as a patent for an improved machine. Improvement applied to machinery is where a specific machine already exists and an addition or alteration is made to produce the same effects in a better manner, or some new combinations are added to produce new effects. In such cases the patent can only be for the improvement or new combination.”

A machine may be improved by adding to or taking therefrom one or more of its parts.

The Century Dictionary defines the word “ improvement: ” In patent law, an improvement is an addition to or change in some specific machine or contrivance by which the same effects are produced in a better manner than before, or new effects are produced.”

Bouvier defines “ improvement ” as An addition of some useful thing to a machine, manufacture or composition of matter.”

In common parlance, we speak of a machine as an improved machine when there has been added a new device which makes it work more efficiently.

The record shows that machines for the manufacture of cigarettes were in use as early as 1876. The first patents issued for the inventions of the defendant were adapted to and used as adjuncts of the original machine. So were also the five patents mentioned.

There was in the plaintiff’s complaint a count asking for a reformation of the several contracts by adding thereto words more clearly providing that they included patents for improvements issued after the date of the contracts, and a portion of the relief granted included such reformation.

As we have stated, we are of the opinion that the contracts without amendment sustain the plaintiff’s contention, but if not we think the evidence fully justified the court in holding that they should be reformed. There can be no reasonable doubt that it was the intention of the parties that the contract should carry any and all the inventions of the defendant relating to the improvement of cigarette machines thereafter made. The amendments directed were probably much more voluminous than was necessary in any view of the case, but if the plaintiff was entitled to a reformation of the contracts no injury is caused to the defendant because of the length of the amendments.

The evidence of the witness Clark was taken conditionally before trial. Considerable latitude was allowed in taking his evidence. The case was tried without a jury, and we do not find any such errors in the rulings of the court as would justify a reversal of the judgment. Clark was interrogated as to conversations with the Allisons at times when they were both present. An objection was made that the evidence was incompetent under section 829 of the Code, John A. Allison being dead. Oscar Allison was called as a witness, and testified as to what was said at those conversations. This action is between the plaintiff corporation and Oscar W. Allison to compel him to assign these patents to the plaintiff. His brother John had no interest in the patents; it is not apparent how the inhibition of section 829 applies to this case. Oscar was not the executor, administrator or survivor of his brother John. Neither did he derive his title or interest from, through or under John, by assignment or otherwise.

It is suggested by the defendant’s counsel that to hold that the contracts covered all inventions made by the defendant to cigarette machines for all time would practically result in making a slave of the defendant. We fail to see the force of this suggestion. The defendant for a consideration agreed that the plaintiff should have the benefit and advantage of his labors and inventions relating to improving cigarette machines and cigarettes only, and in no other field of inventions.

Contracts of a like character are frequently made. The proprietors of a factory may contract to furnish to another the entire product of their factory for a time in the future agreed upon.

It is quite unlikely that the Allisons could have obtained the money from Clark and Allen without the understanding that the business should thereafter have the benefit of the services and talent of the defendant in that department of invention.

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

Mauombeb and Haight, JJ., concurred; Dwight, P. J., not voting.

Judgment appealed from affirmed, with costs.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    Sidney B. Roby, Plaintiff, v. Arthur G. Yates, Defendant.

      Blight of a railroad company in land, forfeited by leasing to am individual — right of the owner in fee to recocer possession from the lessee.

    In an action brought by the owner in fee to recover the possession of real estate held by the defendant as tenant under a lease from a railroad company, it appeared that all the rights the defendant claimed in the property were acquired by the lease from the railroad company, that all the interest the railroad company ever had in the premises was the right to their use for railroad purposes, and that in an action brought by the same plaintiff against the railroad company the General Term had held that the company had forieited and surrendered all its rights and interest in the property to the plaintiff by giving to the present defendant the lease under which he claimed to hold the property. The plaintiff obtained a verdict by direction of the trial court, and the defendant moved for a new trial.

      Held, that as the material evidence in both cases was the same, and the same question was presented for decision as in the case against the railroad company, judgment should be ordered for the plaintiff on the verdict.
    On the trial of the present action the plaintiff was permittedTo give in evidence the judgment roll in the action against the railroad company.

      Held, that even if this was not material evidence, the defendant was not prejudiced thereby, as the plaintiff had fully made out his case without it.
    Motion by the defendant, Arthur G. Yates, for a new trial, upon exceptions ordered to be heard at the General Term in the first instance, on the direction of a verdict for the plaintiff by the court at the Monroe Circuit, on the 27th day of February, 1893.

      William F. Cogswell, for the plaintiff.

      Albert H. Fa/rris, for the defendant.
   Lewis, J.:

This action was brought to recover from the defendant the possession of real estate in the city of Rochester, which he held as tenant under a lease from the New York Central and Hudson^ River Railroad Company.

The property is the same as that in question in an action brought by this plaintiff against said railroad company, in which the plaintiff had judgment, and which judgment was affirmed by this court, and which will be found reported in 48 N. Y. St. Repr. 201, and in 65 Hun, 532.

The plaintiff concededly is the owner in fee of the land.

All the rights the defendant claims to have in the property he got by the lease from the railroad company mentioned.

All the interest the railroad company ever had in the premises, was the right to their use for railroad purposes.

This court held in the action against the railroad company above mentioned, that it'forfeited and surrendered all its rights and interest in the property to the plaintiff by giving to the defendant the lease under which he now claims to hold the property.

The material evidence Was the same in both cases, and the same question is presented for our decision as was presented in the railroad case. "We do not see that the defendant’s case' was in any way prejudiced by receiving in evidence the judgment roll in the railroad action, even if, as is contended by the defendant, it was not material evidence, for plaintiff had fully made out his case without that record.

The defendant’s motion for a new trial should be denied with costs, and judgment should be ordered for the plaintiff, upon the verdict.

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

Defendant’s motion' for a new trial denied with costs, and judgment ordered for the plaintiff on the verdict.


text:
    Nora Crowe, as Administratrix, etc., of Michael Crowe, Deceased, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.

      Raibvad employee — personal injury — negligence — movement of cars, in a track yard, without wmning — a risk of the employment.

    In an action brought against a railroad company to recover the damages resulting from the death of one of its employees, the evidence showed that the deceased, who had been employed as a track repairer in a railroad yard eight or ten years, while returning to the tool house after completing certain work on the tracks, in the night-time, bearing á lantern, was struck and killed by a slowly moving coal car on a switch track; that there was no light on this car and no warning was given of its approach, but the absence of a light and warning was usual in such cases and was to be expected on that track, with which practice the deceased was familiar; it did not appear whether the deceased looked to see if the car was approaching. The plaintiff was nonsuited.

      Held, that the plaintiff failed to prove either freedom from contributory negligence on the part of the deceased, or negligence on the part of the defendant; and that the nonsuit was proper
    A railroad company is not required to place a light upon each car moved in making up or distributing trains in a track yard, nor to have a man accompany or precede such cars to give warning of their approach.
    The frequent passage of cars, without notice of their approach, is a risk incident to employment in a railroad track yard.
    Motion by the plaintiff, Nora Crowe, as administratrix, etc., of Michael Crowe, deceased, for a new trial upon exceptions ordered to be heard at the General Term in the first instance, on the direction of a nonsuit at the Monroe Circuit on the 4th day of June, 1889.

      Eldridge L. Adams, for the plaintiff.

      Edward Harris, dor the defendant.
   Lewis, J.:

This action was brought to recover damages sustained by the next of kin of the deceased by his death caused by the alleged negligence of the defendant. The deceased was, at the time of receiving the injuries which caused his death, working for the defendant as one of a gang of men employed in the defendant’s yards in the city of Rochester, repairing car tracks. He had been thus employed by the defendant in said yards for eight or ten years immediately prior to the time of his death. Michael Carmody was the foreman of the gangj and as such had charge of all the repairs in the section embracing this yard, hiring and discharging the men working under him. He hired Crowe. Carmody and his men were called out about eleven o’clock of the night of the 2d of February, 1887, to repair a broken frog in the yard mentioned. There were some forty tracks in said yard, and at the place of the accident there were five parallel tracks; four of them were known as tracks number one, two, three and four, numbered from the south northerly, and were known as the main tracks. There was in addition a fifth track north of track number four, and known as a switch track. It took the men about two hours to make the repairs, and during that time the traffic on tracks four and five was suspended. Carmody and the deceased each held a lighted lantern in his hand for the purpose of furnishing light for the workmen during the progress of the work. When the work was sufficiently advanced to permit the track to be used, a switch engine which had been standing upon track number three waiting for the repairs to be made was signalled and passed over onto track five with some cars. The men stepped aside to allow them to pass, when they resumed the work ; and when it was completed the proper signals were given and the business in the yard was resumed. These signals were given in the presence of the men composing the gang, including Crowe, and he must have known of them and of the passage of the engine and cars. A number of the men called as witnesses testified that they knew that the cars were being moved along track five at the time the work was finished. The business of this switch engine was to shunt cars on the different tracks in the yard, including track five, and when it passed over onto track five on this occasion it proceeded to handle the cars upon track five, pushing or kicking them along said track past the place where the repairs had been made; the cars after being thus kicked were left to proceed by their own momentum. When the men had completed the repairs they gathered up their tools for the purpose of taking them to the tool house, which was situated north of track five and 414 feet east of the frog. In going to the tool house had to- cross track five. There was ample room for them to walk north of said track. The space between tracks four and five was about seven feet wide. Crowe was the last man to leave the work. He was immediately behind James Knight, one of the gang. He had his lamp in his hand. Knight stopped just as he had crossed track five to pick up a tool he had dropped. He testified that Crowe was immediately behind him and that when Crowe reached the middle of track five he was struck and knocked down and killed by a coal car that was moving slowly eastwardly on track five. Knight did not see the car until it struck Crowe; whether he looked to see if it was approaching, does not appear. Aided by the light of his lantern, Crowe unquestionably would have seen the car if he had looked in its direction. The car had no light upon it, and no notice was given of its approach. There was considerable noise at the time, caused by the moving of trains. Crowe knew from the manner in which business had been done in the yard that cars at any moment were likely to pass along on track five in the same manner as this one did, at the time of the accident. He knew that it was not customary to give any warning of their approach, and that it was not the practice to have lights upon them; and that it required constant watchfulness and. vigilance on his part when moving about the yard, to avoid a collision with the cars. Attempting to cross the track under such circumstances without looking to see if a car was approaching, was a surprisingly careless and negligent act. The plaintiff failed to prove that the deceased was free from negligence contributing to' his injuries. She also failed to show any negligence on the part of the defendant. The business in the yard was being conducted in the same manner that it had been for years.

It is suggested by the plaintiff that there should have been a light placed upon the car. This contention would require a light to be placed upon each and every ear being moved in such a yard as this. The time consumed in handling such a large number of lamps and the number of men that would be required to do the work, would make such a rule obviously impracticable. There is no suggestion that any railroad company ever attempted to adopt such a rule, or that it would be practicable if adopted. To require the company to have a man upon each ear, or a man to precede each car to announce its approach, in such a yard as this, would be impracticable. Great care and precaution are required on the part of railroad companies when they are moving cars in places where the general public have a right to pass, to in some manner announce their approach; but a different rule obtains in the companies’ yards, where cars are being distributed and trains made up. The employees about such yard understand the situation ; they know the manner of doing the business therein, that cars frequently pass along without notice of their approach, and they assume the risks incident to the business as thus conducted.

Whether the foreman left the work when it was completed or a few minutes before, is not important. It was completed when Crowe left, and he understood the situation. The men were properly protected while the work. was progressing by the two lighted lanterns heretofore mentioned. It is suggested that the work was not completed until the men had arrived at the tool house with their tools, and that until then they were entitled to some special protection to which they might not be entitled perhaps when engaged in other business about the yard. No reason is suggested for such a rule, and none occurs to us. They were entitled when going to the tool house to the same protection and care on 'the part of the company to which they were entitled when moving about the yard performing their ordinary daily business.

There was no question for the jury. The nonsuit was properly granted, and the motion for a new tidal should be denied,-and judgment ordered for the defendant upon the nonsuit.

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

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


author: Macomber, J.:

text:
    Andrew F. Sheldon, Respondent, v. Anna G. Mirick and Another, as Administrators, etc., of Nelson R. Mirick, Deceased, Appellants.

      Statute of Limitations — action on a judgment — adjudication of a claim against a decedents estate — costs against administrator's.

    An order or decree made by a County Court, in proceedings instituted by the committee of an habitual drunkard for the sale of the drunkard’s real estate to pay his debts, which establishes and adjudicates the amount of a claim against the estate, is a judgment, within the meaning of section 376 of the Code of Civil Procedure, which prescribes that “a final judgment or decree for a sum of money or directing the payment of a sum of money * * * is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to a mandate to enforce it.”
    The complaint in an action against the administrators of Nelson E. Mirick, deceased, by the assignee of a claim of §1,149.99, being the amount remaining unpaid on an account for legal services rendered the deceased, alleged ‘ ‘ that such proceedings were thereafter duly had in the Wayne County Court upon the petition of said Andrew F. Sheldon and William Kreutzer, as committee as aforesaid, for the sale of real property of said Nelson E. Mirick for the payment of his debts, that on the 16th day of June, 1884, an order was duly made by said Wayne County Court establishing and adjudging said claim to be a valid and subsisting debt against said Nelson E. Mirick, and his estate in the sum of §1,149.99.”

      Held, that this was sufficient to make the action one upon the decree of the County Court as a judgment, and to bring the case within section 376 of the Code of Civil Procedure.
    When the amount of a claim against a decedent’s estate is not seriously disputed, but its .payment is resisted and litigated by the administrators in reliance solely upon the Statute of Limitations, costs are properly awarded against the administrators when defeated on that issue. (Code Civ. Proc. § 1836.)
    Appeal by the defendants, Anna G-. Mirick and William P. Mirick, as administrators, etc., of Nelson R. Mirick, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Wayne county on the 13th day of September, 1892, upon the report of a referee, and from an order made at Special Term awarding costs to the plaintiff against the defendants, as administrators, to be collected out of the property of their decedent in their hands.

      E. W. Ilmnm, for the appellants.

      T. W. OolUns, for the respondent.
   Macomber, J.:

The plaintiff brings this action as the assignee of a claim against Nelson R. Mirick, which accrued to John H. Camp and James W. Dunwell for professional services as lawyers, between May 23,1876, and the 16th day of June, 1884. The value of the whole amount of such services was shown to be $2,906.58, of which $1,756.61 had been paid, leaving due and unpaid a sum of $1,149.99. This balance was assigned by Camp and Dunwell to one Mr. Howell for the sum of $1,075, and Howell in turn assigned the same to the plaintiff for a like amount, as expressed in the assignment itself. The amount due on the claim, besides interest, was shown to be $1,050, and for that sum a recovery was had in pursuance of the report of the referee. The answer consists of a general denial and the six years’ Statute of Limitations. Upon the trial of the action before the referee, the amount of the indebtedness was clearly established, and the same was not disputed, in any respect, by the defendants, who gave no evidence against the correctness of the claim. They relied, however, upon the trial as well as upon the appeal, upon the Statute of Limitations to defeat the action.

It appears that Nelson R. Mirick had, for several years prior to 1883, been adjudged to be an habitual drunkard, and his estate was placed in the hands of a committee, but this committee was discharged in the year 1883, and Nelson R. Mirick was restored to his property; that on the 3d day of April, 1884, he was again adjudged an habitual drunkard by an order of the County Court of Wayne county, that being the county of his residence, and on the twenty-fifth day of April of that year, the plaintiff, Andrew E. Sheldon and William Kreutzer were duly appointed a committee of his person and property, and this committee entered upon the discharge of their duties.

This committee duly instituted proceedings for the sale of certain property of Nelson R. Mirick for the payment of his debts, and such proceedings resulted in an order or decree of the County Court made on the 16th day of June, 1884, establishing certain claims against the estate, and among them was the claim of Camp and Dun-well, which was adjudicated to be the sum of. $1,149.99. The proceedings for the sale of the estate of this habitual drunkard are fully set forth in the printed record, and appear, in all respects, to be regular and binding upon all the parties thereto. The claim of Camp and Dunwell was proved by abundant evidence, and it was shown upon the trial, resulting in the judgment from which the appeal is taken, that no part of the balance so found due them had been paid. This action was begun on the 18th day of November, 1890.

The learned referee has found, among other things, that the adjudication of the claim made by the County Court in the proceedings instituted by the committee for the payment of the debts of Nelson R. Mirick, was an adjudication or a judgment within the meaning of section 376 of the Code of Civil Procedure. We think that the referee was correct in the conclusion; that section provides as follows : “ A final judgment or decree for a sum of money, or directing the payment of a sum of money, heretofore rendered in a Surrogate’s Court of the State, or heretofore or hereafter rendered in a court of record within the United States, or elsewhere, is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to a mandate to enforce it.” But it is claimed by the counsel for the appellants that this action was not upon the decree of the County Court as a judgment, but was for the balance of an open account; but the complaint alleges, in its second subdivision, all the facts necessary, as we think, to bring the case within section 376 of the Code of Civil Procedure. It alleges : That such proceedings were thereafter duly had in the Wayne County Court upon the petition of said Andrew F. Sheldon and William Kreutzer, as committee aforesaid, for the sale of real property of said Nelson R. Mirick for the payment of his debts'; that on the 16th day of June, 1884, an order was duly made by said Wayne County Court establishing and adjudging said claim to be a valid and subsisting debt against said Nelson R. Mirick and his estate in the sum of $1,149.99.”

If this view of the case be correct, it is unnecessary to examine the other questions that have been so elaborately discussed in the briefs which have been submitted to the court.

In regard to the allowance of costs, we think that the order of the Special Term was judiciously made, for it nowhere appears that the amount of the indebtedness was seriously disputed by the administrators. Their reliance being solely upon the Statute of Limitations, it would seem but right and proper that if they were defeated upon that, costs should be awarded to the prevailing party.

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

Judgment and order appealed from affirmed.


text:
    Stiles C. Torrance, Plaintiff, v. The Third National Bank of Buffalo, Defendant.

      Personal property, sold under execution in (mother State — although in possession of the vendee under a contract by which the vendor retains title until payment completed — the lam of Pennsylvania.

    When personal property has been levied on and sold under an execution issued from a court of another State, where the property then was, the rights of parties, in an action brought in the State of New York for the alleged conversion of the property through such levy and sale, must be determined by the laws of such other State in which the property was situated at the time of the alleged conversion.
    The law of the State of Pennsylvania applied — that whenever it appears from the contract between the parties that the owner of personal property has transferred the possession thereof to another, reserving to himself the naked title thereof solely for the purpose of securing to himself the payment of the price agreed upon between them, the contract is necessarily a conditional sale and not a bailment, and while good as between the parties is worthless as to creditors and bona fide purchasers from the transferee without notice.
    Motion by the plaintiff, Stiles C. Torrance, for a new trial upon exceptions ordered to be heard at General Term in tbp first instance, upon the direction of a verdict for the defendant at the Erie Circuit, on the 17th day of May, 1892.
    The action was brought to recover the value of a safe alleged to have been converted by the defendant to its own use.
    The case of Forrest v. Nelson (108 Penn. St. 181), decides that “ "Whenever it appears, from the contract between the parties, that the owner of personal property has transferred the possession thereof to another, reserving to himself the naked title thereof, solely for the purpose of securing to himself the payment of the price agreed upon between them, the contract is necessarily a conditional sale, and not a bailment; and while good as between the parties, is worthless as to creditors and Iona fide purchasers from the transferee without notice.”

      Milla/rd Fillmore Brown, for the plaintiff.

      Lorcm L. Lewis, Jr., for the defendant.
   Macomber, J.:

The facts in this case are not in dispute, so that at the close of the evidence, each side asked the court to direct a verdict in its behalf. The learned justice at the Circuit directed a verdict in favor of the defendant, and directed the exceptions thereto to be heard at the General Term in the first instance.

It appears that on August-20, 1890, one Alonzo Smith, then a resident of Erie county, N. Y., executed a contract to the Mosler Safe Company of Cincinnati, Ohio, through its agent at Buffalo, by the terms of which Smith agreed to take a fire-proof safe which was to be shipped to Scranton, Penn., and was to pay therefor the sum of $155 in installments, together with an old safe theretofore owned by him. By the terms of this contract, the title of the safe was to remain in the seller until fully paid for. On the 6th day of January, 1891, there was a balance remaining unpaid for the safe of $105. The defendant recovered a judgment against this Alonzo Smith in the Court of Common Pleas of the county of Lackawanna, in the State of Pennsylvania, and under this judgment, the sheriff levied upon this safe, which then lay in Smith’s store in the city of Scranton, Penn., and thereafter in the month of January, 1891, the sheriff sold the right, title and interest of Smith therein, and the same was purchased by the defendant for the sum of forty-five dollars, which was applied toward its judgment against Smith. At the time of the issuing of the fi. fa. and the levying upon this safe thereunder, neither the defendant nor any of its agents had any knowledge or notice that Smith was not the real owner of this property. At or before the time of the sale, however, notice was given to the sheriff that the title of the property wa§ in the Mosler Safe Company, and that thereupon the sheriff stated that he would sell only the right, title and interest of Alonzo Smith therein, which was accordingly done. The Mosler Safe Company assigned its interest in the claim against the Third National Bank to the plaintiff, and this action was accordingly brought to recover the value of the property which, at the trial, was conceded to be $100.

The rights of the parties to this action must be determined by the laws of the State of Pennsylvania, where the personal property was situated at the time of the alleged conversion thereof by the defendant. (Green v. Van Buskirk, 5 Wall. 307; 7 id. 139.) This proposition has been deemed to be undoubted since the decision of the Supreme Court in the last-cited case, and which has been often referred to and cited in other cases, and its doctrine reaffirmed in Huntington v. Attrill (146 U. S. 666).

By the law of Pennsylvania, as it was proven upon the trial of this action, the contract between the Mosler Safe Company and Smith, while good as between the parties, was worthless as to creditors or Tjona fide purchasers from a transferee. This rule seems to be abundantly established by the decision put in evidence of Forrest v. Nelson (108 Penn. St. 481).

- It follows that judgment should be directed for the defendant upon the verdict.

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

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


text:
    Alexander McAndrew, Respondent, v. The Lake Shore and Michigan Southern Railway Company, Appellant.

      Sepwate actions for damages to person and property respectively, growing out of the sa/me accident —• defendant’s remedy — supplemental answer.

    When a plaintiff has brought two actions against the same defendant to recover damages for alleged negligence, growing out of the same accident, one being for personal injuries and the other for injuries to personal property, the defendant may set up in each case the pendency of the other action, or may, upon motion, effect a consolidation of the two actions, but is not entitled, after the recovery by the plaintiff of a judgment in one of the actions, to an order, under section 544 of the Code of Civil Procedure, permitting Mm to serve a supplemental answer in the other action, setting up such judgment as a bar to any recovery therein. '
    Appeal by the defendant, tbe Lake Shore and Michigan Southern Railway Company, from an order of the Supreme Court made at Special Term, and entered in the office of the clerk of Chautauqua county on the 26th day of July, 1892, denying the defendant’s motion for leave to serve a supplemental answer to the complaint.

      Gha/rles A. Pooley, for the appellant.

      George E. Towne, for the respondent.
   Macomber, J.:

It appears that this plaintiff brought two actions against the defendant to recover damages for alleged negligence growing out of the same accident, one of them being for personal injuries sustained by the plaintiff, and the other for the injuries and damage done to his horses, wagon and harness. The action for personal injuries was tried in September, 1891, at the Chautauqua Circuit, and resulted in a verdict for the plaintiff, and the judgment entered thereon has since been paid and satisfied by the defendant. Thereafter the 'defendant made a motion at the Special Term for an order in the action brought to recover for injuries to the plaintiff’s personal property for leave to serve an amended or supplemental answer by which it was sought to set up the judgment in the former action as a bar to any recovery in the second action. From an order denying such motion this appeal is taken.

Section 544 of the Code of Civil Procedure provides: “ Upon the application of either party, the court may, and, in a proper case must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court, rendered after the commencement of the action, determining the matters in controversy, or a part thereof.”

We do not think that the defendant brings itself within the spirit of this section of the Code. Undoubtedly it was competent for the plaintiff to have joined in the same complaint both causes of action, but not having done so there was open to the defendant one of two courses to pursue : First, it being evident that both causes of action grew out of the same casualty, the defendant could have set up in each case the pendency of the other action (Secor v. Sturgis, 16 N. Y. 554; Nathans v. Hope, 77 id. 22; Lorillard v. Clyde, 102 id. 59), or, secondly, upon motion to the court, it could, have effected a consolidation of the two actions. (Code, § 817.)

The order appealed from should be affirmed.

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

Order . appealed from affirmed, with ten dollars costs and disbursements.


text:
    Walter Allen, Respondent, v. David Rodgers, Appellant.

      Employment to sell land, on a commission — denial of the existence of the contract — rulings on evidence.

    On the trial of an action brought to recover a commission upon the selling price of land, alleged by the plaintiff to have been negotiated by him under employment by the defendant, where the defendant denied the employment of the plaintiff and the existence of any agreement between them on the subject of the sale of the property, the defendant endeavored to show, by proof of a conversation which he had with a person whom the subsequent purchaser of the land had sent to him, that such purchaser was aiding the plaintiff in efforts to-swindle the defendant. This evidence was excluded.

      Held, that the ruling was proper; that evidence tending to prove that the defendant had negotiated with the person himself, who subsequently purchased the land, would have been proper and admissible, but inferences from conversations with a third person as to underhanded intentions on the part of the subsequent purchaser were clearly inadmissible.
    There was a question in the case as to money claimed to have been borrowed of the plaintiff by the defendant; the defendant endeavored to give evidence of a conversation in regard to a loan obtained by him from the subsequent purchaser of the land, but the evidence was excluded.

      Held, that as the conversation had no connection with the plaintiff or with the money claimed to have been borrowed by the plaintiff from the defendant, it was irrelevant and inadmissible.
    The following question, put to the defendant by his counsel, was excluded r “ Did you at any of the time know that the plaintiff was working for you ? ”

      Held, that the question was properly excluded, as immaterial, and as calling for a conclusion, andas indefinite; and, moreover, that its rejection was rendered harmless by evidence on the subject subsequently admitted.
    Evidence offered by the defendant, that certain persons had made claims against him for selling the same land, was excluded as immaterial to the issue.

      Held, that this ruling was proper; that in determining the question at issue between the parties to the action, it would be clearly inadmissible, on the ground of incompetency, to receive testimony, to prove the non-acceptance of the contract by the parties, showing that other persons had undertaken the same work as the plaintiff.
    Appeal by tbe defendant, David Rodgers, from a judgment of the County Court of Chautauqua county, entered in the office of the clerk of that county on the 20th day of June, 1890, upon the verdict of a jury, and also from an order denying the defendant’s motion for a new trial made upon a case and exceptions.

      John G. Record, for the appellant.
    TF B. Hooker, for the respondent.
   Macomber, J.:

This action was brought upon an alleged contract wherein the plaintiff claimed the existence of an agreement with the defendant to sell property owned by the defendant in the city of Dunkirk at the price then and there stated by the parties to be $16,000. It is alleged by the plaintiff that after the sale of the property at that price, he was to have three per cent commission for his services. The defendant denies the'existence of any agreement respecting the sale of this property, or that the plaintiff was ever in his employ for that purpose.

The plaintiff further claims in addition to the making of this contract, that the defendant made him a payment, partly in cash, and the answer contains a general denial of all the allegations in the complaint. This appeal is made upon exceptions taken at the trial to certain evidence admitted by the trial court. A verdict was brought in for the plaintiff for the relief asked for in the complaint.

As no exceptions were taken by the defendant to the charge of the court, and no requests to charge were made by the defendant, nor was any motion made for a nonsuit or a dismissal of the case, it follows that it is for this court to pass judgment solely upon the question whether any errors were committed by the trial court in the admission of evidence.

The case shows several rulings against the defendant, but to which no exceptions were taken, and these, of course, cannot avail the defendant upon appeal for a new trial. The first exception taken by the defendant occurs in folio 78, where the defendant endeavored to show that he went to a picnic on what he was informed was an invitation from Dotterweich (the subsequent purchaser of the property in question), and that Dotterweich was aiding Allen in his efforts to swindle the defendant. This was properly excluded by* the learned trial justice. The conversation sought to be ¡moved was not with Dotterweich, but with a party whom he had sent after the defendant. Evidence tending to prove that the defendant had negotiated with Dotterweich himself in regard to the sale of the farm, would have been proper and admissible, but inferences from conversations with a third party as to underhanded intentions on the part of Dotterweich were clearly inadmissible.

Again, at folio 84, an exception was given to the defendant upon the exclusion of the conversation in regard to the borrowing of two dollars by defendant. This conversation was in regard to a loan of two dollars which the defendant obtained, not from the plaintiff Allen, but from Dotterweich, and had no connection whatever with the plaintiff or the money claimed to have been borrowed of plaintiff by defendant, and hence was irrelevant and inadmissible.

To the exception taken by the defendant in regard to the exclusion of evidence in answer to the question, Did you at any of the time know that Mr. Allen was working for you ? ” there was no error made. This question was properly excluded as immaterial, and as calling for a conclusion from the witness; it was also indefinite, and, inasmuch as by the next question the defendant was permitted to show that at the time the contract was made he did not know that Allen claimed to be working for him, leaving the question of the admissibility of it out of the question, there was no harm done by its rejection. The only other exception taken by the defendant, which calls for a decision by us, relates to the exclusion by the court of the evidence that persons other than Mr. Smith made claims against the defendant for selling land. This was rejected as immaterial to the issue. In determining the question at issue between the parties hereto it would be clearly inadmissible, on the grounds of incompetency, to receive testimony to prove the non-acceptance of the contract by the parties, by showing that other persons had undertaken the same work as the plaintiff.

There are other exceptions, but the above are the only ones of sufficient importance for us to pass upon, and having found that no error was committed by-the justice in the admission of such evidence, under the circumstances the claims made by the plaintiff that the evidence shows a strong preponderance in favor of the defendant cannot be sustained. It is unnecessary to go further into the questions raised on the trial, and for this reason it follows that the judgment of the County Court should be affirmed, with costs to the respondent.

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

Judgment and order of the County Court of Chautauqua county appealed from affirmed, with costs.


text:
    George W. Bennett, Appellant, v. John Taylor, Respondent.

      Justice of the peace — amended return,

    A justice of tlie peace cannot be permitted to make an amended return which will absolutely contradict what is stated in a previous return.
    A return of a justice of the peace, on appeal from a judgment rendered by him in lavor of the plaintiff, showed that erroneous evidence, prejudicial to the defendant, had been admitted on the trial. The plaintiff moved for an amended return and claimed that the case was taken out of the general rule on that subject, for the reason that the erroneous evidence had been in fact excluded by the justice and that the justice had been deceived by the defendant’s counsel and induced by fraud to sign a false return, stating that the evidence had been admitted.

      Held, that the affidavits submitted clearly acquitted the counsel of any such alleged impropriety, and, consequently, that the plaintiff was not entitled to any relief on that ground
    Appeal by the plaintiff, George W. Bennett, from a judgment of the County Court of Wayne county, entered in the office of the clerk of that county on the 9th day of January, 1892, reversing a judgment of a justice of the peace in summary proceedings to recover the possession of demised premises, together with a notice of an intention to bring up for review an order made by the same court dated January I, 1892, denying a motion to correct the return and for a reargument of the case.

      Hophi/ns c& Converse, for the appellant.

      B. B. Melntyre, for the respondent.
   Macomber, J.:

The plaintiff, as landlord, instituted summary proceedings to recover possession of certain demised premises situated in the village .of Palmyra, upon the ground that the tenant, the defendant, was holding over after the expiration of his lease. Upon a trial before a justice of the peace and a jury, a verdict was rendered in favor of the landlord, and from a judgment entered thereon an appeal was taken by the tenant to the County Court, where, after argument, the judgment was reversed upon the ground of the admission of erroneous evidence prejudicial to the tenant. The record there showed that the plaintiff was permitted to testify, under objection, to two several conversations which lie had with one Ered Taylor. That this evidence was inadmissible admits of no doubt, nor is it contended by the appellant here that the same was competent for any purpose. Upon the merits, therefore, of the appeal, the judgment of the County Court was clearly right.

But it is contended that the return of the justice to the County Court had been tampered with or made up, in part at least, by counsel for the tenant, and that in truth and in fact the supposed erroneous evidence upon which the justice’s judgment was reversed, was not in fact ever given before the justice of the peace, but was, on objection, excluded. "We agree with the learned county judge who heard the motion for an amended return and for a reargument thereon, that such motion could not be granted and that a justice of the peace cannot be permitted to make an amended return which will absolutely contradict what is stated in a previous return. (Barber v. Stettheimer, 13 Hun, 198; Fitzgerald v. Fitzgerald, 25 id. 319.) If the justice of the peace made a false return he is liable for the same to the party injured. (Houghton v. Swarthout, 1 Den. 589.) But it is claimed that the justice of tbe peace himself was deceived by counsel for the tenant and was induced by fraud to sign the false return, and that for this reason the case' is taken out of the operation of the general rule above stated. But we have examined the affidavits given upon this subject and they clearly acquit the counsel of any such alleged impropriety, and consequently the plaintiff is not entitled to any relief upon this ground.

It follows that the judgment and order appealed from should be affirmed.

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

Judgment and order of the County Court of Wayne county appealed from affirmed, with costs.


text:
    Charles Potter, Jr., and Others, Respondents, v. The Traders’ National Bank of Rochester, Appellant.

      Chattel mortgage to secure purchase money, not filed — effect of a sale under execution against the vendee, subject to the vendor’s claim.

    A vendor of personal property, who has taken a chattel mortgage thereon from the vendee to secure payment of the purchase money, which, by its terms, gives the vendor the right to take the property on default in payment, may, on default in payment, recover possession of the property from a judgment creditor of the vendee who has bought it in on a sale under execution against the vendee, expressly announced by the sheriff and understood to be made subject to the vendor’s claim under his chattel mortgage, although the mortgage had not been filed when the execution was issued.
    Appeal by the defendant, the Traders’ National Bank of Rochester, from a judgment of the Supreme Court in favor of the ’ plaintiffs, entered in the office of the clerk of Monroe county on the 7th day of January, 1893, upon a verdict rendered at the Monroe Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.

      Dmicl Hays, for the appellant.

      Hector M. Hitchings, for the respondents.
   Macomber, J.:

This action was in replevin to recover a printing press from the defendant, which came into its hands through a sale of the personal property of the Rochester Lithographing and Printing Company, upon a judgment recovered by the defendant against that company. This printing press was purchased by the Rochester Lithographing and Printing Company from the plaintiff, and as a part of the purchase price thereof, a chattel mortgage was executed by the purchaser to the seller to secure the same. The sale was made in April, 1889, and the purchase price of the press was $3,000. The amount secured by the chattel mortgage was the sum of $2,700, payable in installments, evidenced by ten promissory notes of $270 each, all bearing date April 15, 1889, and due at different times from four months to thirty months from their date. These notes were payable at the defendant’s bank and five of them had been paid at the time this action was begun, and five remained unpaid. The mortgage was not filed until October 14,1890. In February of that year, the defendant commenced an action against the Rochester Lithographing and Printing Company, to recover a considerable sum of money, and that action resulted, on October 9, 1890, in a judgment for $20,977. Execution was issued thereon on the last-named day.

At the close of the testimony, as well as at the conclusion of the plaintiffs’ case in chief, the defendant moved for a nonsuit upon the ground that the plaintiffs had failed to file or refile their mortgage as required by statute, and on the further ground, that they had failed to show due execution of the moz-tgage by the coz'poz-ation debtor; also, that the action was brought against the wrong party. One ground at least of the motion, namely, that the actiozi was brought against the wrong person, was clearly not tenable, because the case shows that it was agreed that the person who purchased the px’operty at the sale on the execution, took the title on such purchase in behalf of the defendant.

The ground taken by the counsel for the defendant, that a recovery could not be had by the plaintiffs because the chattel mortgage had not been properly filed, was well taken, and doubtless would have prevailed, except for other facts ixz the case upon which the plaintiffs relied, which consisted of testimony to the effect that upon such sale the press was struck off to the defendant’s agent subject to tbe claim of these plaintiffs. The learned trial justice, in denying the defendant’s motion for a new trial made upon the minutes, wrote an opinion which does not appear in the . printed case, but which has been furnished to the court since the argument. The opinion is as follows:

“ Bradley, J.: The motion to dismiss the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action was properly denied. Although the fact of the title, general or special, in the plaintiff was not formally alleged, the facts constituting the elements in that respect essential to the cause of action were alleged. The complaint stated that the Rochester Lithographing and Printing Company having purchased the press of the plaintiffs, gave to the latter a chattel mortgage upon it to secure the payment of the purchase ffioney, then proceeded to state its terms by which the right was given to the plaintiffs to take the property on default in payment, or when they deemed themselves unsafe, sell it, etc., and charges default in payment; that the defendant afterward took possession of the property and that the plaintiffs demanded of the defendant the possession of it, to which they were entitled under and by virtue of said mortgage, but the defendant has wholly refused and still does refuse to deliver the same to the plaintiffs and wrongfully detains the same from them.
“ The facts'stated in respect to the provisions of the chattel mortgage and of the right which it gave, constituted in effect, allegations of title in the plaintiffs as mortgagees. Such was the legal operation and effect of the chattel mortgage as between the parties to it. (Langdon v. Buel, 9 Wend. 80.)
“And the conclusion, which, followed by allegations that the plaintiffs were entitled to the possession of the property, and that it was wrongfully detained from them by the defendant, had the support of the facts so alleged. The same strictness is not applicable on motien to dismiss as might be applied on demurrer.
“ The other grounds of the motion for dismissal of the complaint require no special consideration. The evidence was sufficient to justify the submission to the jury of the question whether or not the sale by the sheriff of the press was made subject to the plaintiffs’ claim of title, founded upon the chattel mortgage, and to fairly support the finding upon it in the affirmative. And such fact having been so found by the jury, must, for the purposes of this motion, be deemed effectually established. (Horton v. Davis, 26 N. Y. 495; Friedrich v. Brewster, 26 Hun, 236.)
“ It may be affirmed that an unqualified sale by the sheriff of the right, title and interest of the R. L. & P. Co. in the press would have divested the plaintiffs of any right under the mortgage, as against the purchaser at the sale, as the mortgage had not been filed. (Porter v. Parmley, 52 N. Y. 185; Tremaine v. Mortimer, 128 id. 1.) The court substantially so charged the jury, and submitted to them the question whether or not, in view of the circumstances attending the sale, and what occurred there, if so announced by the sheriff, the sale was fairly understood to have been so qualified in that respect as to have been made subject to the plaintiffs’ mortgage claim upon the property. I think the evidence permitted the conclusion that the sale, if made as of the right, title and interest of the debtor company, that it was descriptively so qualified as to have been made subject to such claim of the plaintiffs. This was a question for the jury; and, therefore, under the circumstances, the court could not, as a matter of law, properly hold that a sale so made of property, entitled the defendant to recover. The motion is denied.”

Concurring in the views above expressed, we are of the opinion that the judgment and order appealed from should be affirmed.

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

Judgment and order appealed from affirmed.


author: Bradley, J. :

text:
    In the Matter of the General Assignment of William G. Hevenor, for the Benefit of Creditors, to Hudson Ansley. Charles D. Marshall and Others, Claimants, Appellants; Hudson Ansley, Assignee, Respondent.

      Assignment for the benefit of creditors — construction of a direction to the assignee to pay “ debts and liabilities now due or to grow due."

    A general assignment for the benefit of creditors, after making certain preferences, directed the assignee “to pay and discharge in full, if the residue of said proceeds is sufficient for that purpose, all the debts and liabilities now due or to grow due from the said party of the first part, with interest thereon.”

      Held, tliat the word “liabilities” was used as synonymous with “debts,” and that the direction referred only to debts existing at the date of the assignment, including those payable in the future.
    Hence, that the direction to the assignee did not cover a claim made by lessors cf the assignor for deficiencies in rent arising, subsequent to the assignment, from premises which had been leased for a term of years to the assignor before the assignment and which the lessors had thereafter taken possession of and relet for the unexpired portion of the term, under a provision of the lease to the effect that if the premises should at any time during the term become vacant, the lessors might enter and relet as the agents of the lessee, applying the avails to the payment of the rent due upon the lease, and hold the lessee for any deficiency.
    Appeal by the claimants, Charles D. Marshall and Julia R. Sherman, as executors of R. J. Sherman, deceased, and Martha R. Sherman, individually, from an order of the County Court of Erie county, entered in the office of the clerk of that county on the 7th day of April, 1893, confirming the report of a referee disallowing the appellants’ claim against the assignee.

      Spencer Clinton, for the appellants.

      Baker, Schwarts <& Bake, for the assignee, respondent.
   Bradley, J. :

On July 13, 1891, William G. Hevenor made a general assignment for the benefit of his creditors to Hudson Ansley, and on the next day it was recorded in the office of the clerk of Erie county. After making preferences for certain creditors the assignor directed the assignee “ to pay and discharge in full, if the- residue of said proceeds is sufficient for that purpose, all the debts and liabilities now due or to grow due from the said party of the first part, with interest thereon.”

Prior to that time and on the 18th day of April, 1891, the appellants leased to the assignor a certain store and premises in the city of Buffalo for the term of five years from the 1st day of May, 1891, at the annual rent of $7,200, payable in monthly payments of $600, each in advance. The rent was paid up to the time of the assign- ’ ment, and by the assignee for the term he thereafter occupied the premises. At the expiration of that time the lessors took possession, of them. And since then the lessors have assumed to rent the premises as agents of the lessee, pursuant to the provision of the lease, to the effect that if the premises should at any time during the term become vacant the party of the first part might enter and relet the premises as the agent of the party of the second part, applying the avails thereof to the payment of the expenses and the rent due upon the lease, and hold the party of the second part for any deficiency. On November 1, 1892, the lessors, appellants, filed their claim whereby it was represented that the amount of rent to that date under the lease was $10,600, and the amount received thereon, $5,163.50, leaving a balance of $5,136.50 unpaid.

The rejection of this claim by the assignee was supported by the order or decree from which this appeal is taken. The question presented is whether the payment of deficiencies in rents derived from the premises subsequent to the assignment came within the direction in that respect given by the assignor in the assignment. If it did not, the claim was properly rejected.

An assignment in trust for the payments of debts due and to grow due refers only to debts then existing, including those payable in the future. (Brainerd v. Dunning, 30 N. Y. 211.)

Whether or not the assignor would be liable for any amount upon his lease on account of rent accruing subsequently to the time of the assignment and of the taking possession of the premises by the lessors, was dependent upon the election of the latter. Such liability was uncertain in extent, and whether there would at the end of the term be any or what amount for which he would be liable could not until then be definitely determined. That liability, such as it was, was not a debt -within the meaning applicable to that term in the assignment. (In re Adams, 15 Abb. N. C. 61.) It is difficult to see in its relation to the subject that the word “ liabilities ” was intended to have any more comprehensive meaning than is applicable to the. word “debts.” The liabilities in view were those which, and the extent of them, as of the time of the assignment could be ascertained for the purpose of the execution of the trust, those debts which were existing at the time the assignment was made and then due or to grow due. This fairly imports fixed, definite and liquidated, liabilities. Those liabilities are debts. By giving the more comprehensive meaning to the word “ liabilities ” as there used, might open a wide field of inquiry for the assignee, which evidently was not in the contemplation of the parties to the assignment. The fair interpretation of the words employed in the phrase in question, in their relation to it and to the purpose of the instrument, is such as to require the conclusion that the words, “debts” and “liabilities.” were synonymously used; and consequently the claim made by the appellants for the deficiency in the subsequently accrued rent of the premises did not come within the meaning of the debts and liabilities, which by the assignment the assignee was directed to pay. (In re Willis, 44 N. Y. St. Repr. 470; In re Lewis, 81 N. Y. 421.)

The order should be affirmed, with costs.,

Lewis and Haight, JJ., concurred.

Order of the Erie County Court appealed from affirmed, with costs.


author: Bradley, J.:

text:
    Henry C. Tucker, Appellant, v. Henry Pfau, Respondent.

      Power of a County Court to grant a new trial before a justice of the peace — exercise of discretion not subject to review by another court.

    The exercise, by a County Court, of the discretionary power conferred by section 3064 of the Code of Civil Procedure, on an appeal from a judgment of a Justice’s Court by a defendant who failed to appear before the justice, to grant a new trial before the same justice or another justice of the same county, is not subject to review by another court. I
    Hence, an order of a County Court granting the defendant a new trial before a justice of the peace, made in the exercise of the discretion assumed by the County Court to be possessed by it under said section 3064, must be affirmed, where, although the power of the County Court seemed to have been somewhat arbitrarily exercised, it could not be said that the affidavits on the part of the defendant were utterly barren of any facts for the consideration of the County Court upon the questions to which its discretion was applicable.
    Appeal by the plaintiff, Henry C. Tucker, from an order of the County Court of Erie county, entered in the office of the clerk of that county on the 8th day of September, 1892, granting the defendant a new trial before the justice of the peace by whom the judgment in the action which had been appealed from by the defendant, was rendered.

      Henry O. Adams, for the appellant.

      John P. Hazel, for the respondent.
   Bradley, J.:

It is quite difficult to see in the affidavits on the part of the defendant any satisfactory excuse for his default in appearing before the justice on the day of the trial. It seems to have been assumed on the part of the defendant, without taking the trouble to obtain information on the subject, that the plaintiff had by his complaint demanded judgment for a sum exceeding fifty dollars, and, therefore, that the defendant could by appeal and demanding it, take a new trial in the County Court. (Code Civ. Pro. § 3068.) But as by his complaint the plaintiff sought to recover a less sum only, and as the defendant alleged no claim available against that of the plaintiff for a greater amount than fifty dollars, the defendant had no right by appeal to take such new trial; nor did the defendant make it clearly appear that manifest injustice was done him by the judgment. But upon appeal from a justice’s judgment by a defendant, who has failed to appear at the time of the trial, and who shows by affidavit or otherwise that manifest injustice has been done, and renders a satisfactory excuse for his default, the appellate court may in its discretion set'aside the judgment,” and direct a new trial before the same or another justicp of the county. (Code Civ. Pro. § 3064.) It was by the exercise of the discretion which the County Court assumed to have that the new trial was granted before the same justice in the present case. And while it may seem that the power of the County Court was somewhat arbitrarily exercised in granting the new trial, it was, nevertheless, so much a matter of discretion as not to be the subject of review by another court. (Wavel v. Niles, 24 N. Y. 635; Reilley v. D. & H. C. Co., 102 id. 383, 386; Tanner v. Marsh, 53 Barb. 438; Thomas v. Keeler, 52 Hun, 318.)

The cases cited on the part of the plaintiff are mainly those of the County Courts on appeals from justices’ judgments, and of the Court of Common Pleas of the city of New York on appeals thereto from the District Courts of that city, to which appeals the provisions of the statute before mentioned are in like manner applicable. (Code Civ. Pro. § 3213.) And, therefore, those, cases do not necessarily furnish authority beyond the court of review, in which is vested the discretionary power given to it by the provisions of section 3064' of the Code. It cannot be said that the affidavits on the part of the defendant were utterly barren of any facts for the consideration of the County Court upon the questions to which its discretion was applicable.

And, therefore, the order must be affirmed.

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

Order of the Erie County Court appealed from affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Application of Benjamin C. Miller, Judgment Creditor, Appellant, for the Payment of his Claim Against the Estate of John Morton, Deceased; Fidelia R. Morton, as Administratrix, etc., Respondent.

      Judgment against a person deceased, after the rendition of the verdict — irregularities in, cured ly amendment — proceeding for pa/yment of, as a claim against the decedents estate — dismissal of the petition — Statute of limitations — sections 1210, 1237, 2717 and 2718 of the Code of Civil Procedure.

    When a judgment, for a sum of money, entered after the death of the person against whom a verdict had been recovered, is irregular by reason of the verdict not being contained in the judgment roll (Code Civ. Pro. § 1237), and sf no memorandum of the death of the party being entered in the judgment book, indorsed on the judgment roll and noted in the docket (Code Civ. Pro. § 1210), the court has power to correct such errors, apd, when corrected, the judgment becomes a valid judgment.
    When such a judgment is the adjudication of a competent court, having jurisdiction of the parties, it imports absolute verity, and cannot be attacked collaterally, and if assigned, it prima facie establishes the claim of the assignee against the estate of the deceased judgment debtor, based thereon.
    While a surrogate, on the presentation of a petition by the assignee of such a judgment for a decree directing the administrator of the deceased judgment debtor to pay the claim, under section 2717 of the Code of @ivil Procedure, has the power to inquire and pass upon the question whether any payments have been made .to apply upon the judgment and determine the amount due thereon, and ascertain who is the owner thereof and entitled to the money, he cannot try and determine questions regarding its validity; and to justify a dismissal of the petition, under subdivision 1 of section 2718 of the Code of Civil Procedure, the answer of the administrator should not only deny the validity or legality of the petitioner’s claim, but should set forth facts which show that it is doubtful whether the claim is valid and legal.
    The right to institute a proceeding under section 2717 of the Code of Civil Pro • cedure, in a Surrogate’s Court, for the payment of a claim based upon a judgment of a court of record, entered against the decedent under section 1210 of the Code, which provides that “such a judgment does hot become a lien upon the real property, or chattels real, of the decedent, but it establishes a debt to be paid in the course of administration,” is subject to the provisions of the Statute of Limitations applicable to actions upon judgments of courts of record, and not to the six years’ limitation.
    Appeal by the petitioner, Benjamin O. Miller, from a decree of the Surrogate’s Court of Monroe county, entered in the office of the surrogate on the 27th day of December, 1892, dismissing his petition as a judgment creditor, praying for the payment of his claim against the estate of John Morton, deceased.

      William E. Ea/ois, for the appellant.

      Louis EL. Jack, for the respondent.
   Lewis, J.:

The petitioner, Benjamin C. Miller, presented to the surrogate of. Monroe county on the 3d day of December, 1892, his duly verified petition showing, among other things, that John Morton, a resident of Rochester, N. Y., died on the 23d day of March, 1883, and that Fidelia R. Morton, of said city, was, by order of the surrogate of Monroe county, duly appointed administratrix, etc., of said deceased, and is still acting as such; that one Mary A. Northrup, on the 10th day of August, 1883, recovered two judgments, aggregating some six hundred dollars, in the Supreme Court, Monroe county, against said Morton. The judgments were docketed in the clerk’s office of Monroe county on that day, and thereafter by proper instruments the said judgments were duly assigned to the petitioner. The claims were duly presented to the administratrix for payment on the 5th day of January, 1885, and they were not disputed by the administratrix; that the petitioner was informed and believed that there had come into the hands of the administratrix since her appointment the sum of $3,540 belonging to the estate of the deceased, and that there are no claims against the decedent’s estate •entitled to equality of payment with or priority of payment over tlie claim of tlie petitioner, with the exception of funeral expenses, etc., and that there are sufficient moneys in the hands of the administratrix to pay petitioner’s claim without injuriously affecting the rights of persons entitled to priority over or equality of payment with your petitioner.

A citation was issued thereon requiring the administratrix to show cause why a decree should not be made requiring her to pay the claim, and on the return day of the citation the administratrix interposed a verified answer stating that 'the verdicts in the judgments described in the petition were recovered against the deceased prior to his death ; that they were docketed after the death of Morton ; that in docketing the judgments the verdict was omitted from each of the judgment rolls and that there was a failure to enter with the judgments in the judgment book, or to indorse on the judgment rolls, or to note on the margin of the docket of the judgments the memorandum of' the death of the defendant, John Morton, as required in such cases by section 1210 of the Code of Civil Procedure. The answer further alleged that each of said judgments was recovered in actions founded on tort, and claimed that by reason of said irregularities and defects the alleged judgments were irregular and defective and were ineffectual either as claims to be enforced against the estate of said Morton or as notice or evidence of debt to the representatives of the estate of the said decedent, and that the estate was because thereof entitled in equity to a discharge and release from any claims arising on said judgment. The answer further alleged that on the 2d day of November, 1892, the petitioner made application to the Special Term of the Supreme Court of Monroe county to have the judgment rolls and the docketing of the same amended and corrected as of date August 10, 1883, by supplying the omissions mentioned, and that an order was made allowing such corrections, with the qualification, however, that the rights acquired by the administratrix by reason of said irregularities, should not be prejudiced by the entering of said order.

The answer alleged the publication of a notice to creditors of the estate to present their claims, and that without the knowledge of the alleged judgments she had paid the claims of all the creditors legally presented and proved, funeral expenses, ‘ etc.,’ and further stated “ that there are not funds or property in her possession as administratrix, applicable to the satisfaction of the claim of the petitioner herein, without injuriously affecting the rights of others.” The answer omitted to state that the claims of the others referred to were, in the language of subdivision 2 of (section 2718 of the Code, entitled to priority or equality of payment or satisfaction to the petitioner’s claim.

The answer denied any knowledge or information as to the alleged assignment of the judgments, and further alleged that the time within which the proceedings could be instituted had elapsed, and denied, upon information and belief, the validity and legality of the alleged judgments and claims of the petitioner.

The surrogate, upon the filing of said answer, without taking anj evidence, dismissed the petition upon the sole ground that the answer of the administratrix set forth facts showing it to be doubtful whether the claim of the petitioner was valid .and legal, and denied its validity and legality upon information and belief.

Section 2718 of the Code provides that upon the return of a citation the surrogate must dismiss the petition, if, first, the administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and' legal, and denying its validity or legality absolutely, or upon information and belief, or, second, where it is not proved to the satisfaction of the surrogate that there is money or other personal property of the estate applicable to the payment or satisfaction of the petitioner’s claim, and which may be so applied without injuriously affecting the lights of others entitled to priority or equality of payment or satisfaction.

The dismissal being put upon the first ground mentioned, the petitioner was prevented from making the proof required by the second subdivision of said section.

Section 1237 of the Code provides that the clerk, upon entering final judgment after a trial, must include in the roll the verdict, report or decision, etc.

Section 1210 of the Code provides: “ Where a judgment for a sum of money, or directing the payment of money, is entered against a party after his death in a case where it may be so taken by special provision of law, a memorandum of the party’s death must be entered with the judgment in the judgment book, indorsed on the judgment roll and noted on the margin of the docket of the judgment. Such a judgment does not become a lien upon the real property or chattels real of the decedent, but it establishes a debt to be paid in the course of administration.”

In entering these judgments the memorandum required by this section was omitted. The verdicts were also omitted. These irregularities in the record being discovered, on the motion of the claimant, an order was duly granted by the Special Term directing that the omissions in the record be supplied by the clerk as of the date of the entry of the judgments, and the corrections were made prior to the presentation of the claim to the administratrix.

The judgments prior to the making of the order aforesaid were irregular, but the court unquestionably had the power to correct the errors and when corrected they became valid judgments.. (White v. Bogart, 73 N. Y. 256.)

The judgments were the adjudications of a competent court having jurisdiction of the parties, they imported absolute verity and could not be attacked collaterally, and having been assigned to the claimant they prima facie established his claim against the estate. (McNulty v. Hurd, 72 N. Y. 521.)

"While the surrogate had the power to inquire and pass upon whether any payments had been made to apply upon the judgments and determine the amount due thereon, and ascertain who was the owner thereof and entitled to the money, he could not try and determine questions regarding their validity. In order to have justified a dismissal of the petition the answer should not only have denied the validity or legality of the plaintiff’s claim, but it should have set forth facts which showed that it was doubtful whether the petitioner’s claim was valid and legal. (Hurlburt v. Durant, 88 N. Y. 121; Matter of Macaulay, 94 id. 574.) ’

This the answer failed to do unless the plea of the Statute óf Limitations is to prevail.

It is the contention of the respondent that the six years’ limitation applies to a claim based upon a judgment of a court of record the same as to a claim not in judgment.

By subdivision 1 of section 111 of the Code, it is provided, that the word “ action ” contained in the chapter relating to the time for enforcing a civil remedy, is to be construed, when it is necessary so to do, as including a special proceeding or any proceeding therein.

Py section 415 it is provided that “ The periods of limitation prescribed by said chapter * * * must be computed from the time of the accruing of the right to relief by action, special proceeding, etc. * * * to the time when the claim to that relief is actually interposed by the party as a plaintiff or defendant in the particular action or special proceeding.”

It was held before the Code was adopted and has been held since, that a proceeding like this may be instituted within the time within which actions of the same character are required to be commenced in courts of common law or equity. (McCartee v. Camel, 1 Barb. Ch. 455; Smith v. Remington, 42 Barb. 75; House v. Agate, 3 Redf. 307; Drake v. Wilkie, 30 Hun, 537; Kerr v. Terpenning, 25 id. 482; Matter of Depuy, 28 N. Y. St. Repr. 42; Matter of Kendrick, 107 N. Y. 107.)

It is clear that the statute had not run agains^ the right of the petitioner to enforce his claim. The effect of the delay in instituting the proceedings upon the rights of the claimant in the assets of the deceased is another question, but that question is not before us for adjudication.

The answer, we think, failed to state facts tending to show that the petitioner’s claim was not legal- and valid, and the learned surrogate erred in dismissing the petition.

The decree appealed from should be reversed, with costs of this appeal to the appellant to be paid out of the estate, and the proceeding remitted to that court to proceed thereon.

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

Decree of the surrogate of Monroe county appealed from reversed, with costs to the appellant to be paid out of the estate, and the proceeding remitted to that court to proceed thereon.