text:
    In the Matter of the Judicial Settlement of the Account of Elizabeth S. Baldwin, as Executrix, etc., of George R. Baldwin, Deceased. Elizabeth S. Baldwin, as Executrix, etc., Appellant; Josephine F. Clason and William H. Jacob, Respondents.

      Judgment — power of the cleric in entering it on a referee's report where there is inconsistency or doubt — a judgment invalid upon its face can be attacked whenever offered in evidence.

    The clerk of the court cannot, in entering a judgment upon the report of a referee, exercise judicial functions in determining the person against whom the judgment is to be entered — when, in the report itself, there is an inconsistency or a doubt as to the person against whom it should he entered.
    Where the report of a referee does not direct that a judgment be entered, but states that certain persons “ are entitled to judgment against the defendant, Elizabeth S. Baldwin,” and the clerk enters judgment against Elizabeth S. Baldwin as executrix, such judgment is not merely irregular but absolutely void.
    Where the invalidity of a judgment appears upon the face of the record, the question can be raised whenever the judgment is offered in evidence.
    Appeal by Elizabeth S. Baldwin, as executrix of tlie last will and testament of George R. Baldwin, deceased, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on tlie 22d day of December, 1893, confirming tlie report of a referee appointed to determine tlie matter of tlie claim presented by Josephine E. Clason and William FI. Jacob against the estate of ber testator, and overruling the exceptions of said executrix to tlie said report.

      Isaac N. Miller, for the appellant.

      George W. Stephens, for the respondents.
   O’Brien, J.:

This proceeding was instituted by respondents, claiming to be judgment creditors of Elizabeth S. Baldwin, as executrix of George R. Baldwin, deceased, to compel her to render an account of her proceedings as such executrix. In the account filed by ber slie disputed that tlie respondents bad recovered any judgment against her, but by the decree appealed from it Avas adjudged that they were creditors and entitled to receive from her as executrix the amount of a certain judgment, the validity of which she had assailed. The question presented, therefore, upon this appeal relates to the validity of such judgment, which Avas received in evidence upon the accounting, and, if admissible, properly sustained the claim of the respondents as judgment creditors.

As to such judgment, it appears that in a suit brought by the respondents against Elizabeth S. Baldwin, as executrix, the matter was referred to a referee to hear and determine, and he thereafter filed his report, wherein he found as a conclusion of law, That the plaintiffs, as executors of the last will and testament of Elizabeth Career, deceased, are entitled to judgment against the defendant, Elizabeth S. Baldwin, as of August 6th, 1889, the date of this report, for the sum of $2,186.72, besides the costs of this action.” Upon this report respondents entered a judgment against Elizabeth S. Baldwin as executrix. From this judgment defendant appealed to this General Term, and, as one of the objections, insisted that there was no direction that it be entered as required by section 1022 of the Code of Civil Procedure, and that the clerk in entering the judgment in form as he did acted without authority. For the reason, undoubtedly, that one could not appeal from a judgment as regular, and at the same time raise a question of irregularity, this court dismissed the appeal “ without prejudice to the right of the appellant to appeal from any judgment herein which may hereafter be entered.” The report of the referee was never amended, nor was anything done by either party to correct the error, and upon the judgment being introduced on the accounting it Avas objected to by the executrix on the ground that it was unauthorized and void, because entered by the clerk without authority and in the absence of any direction by the referee as required by section 1022 of the Code of Civil Procedure, and for the reason that the referee reported that the plaintiffs in that action were entitled to judgment against the defendant, Elizabeth S. Baldwin, whereas the judgment entered Avas against Elizabeth S. Baldwin as executrix. (Clason v. Baldwin, 13 N. Y. Supp. 371.) Notwithstanding the intimation that the judgment thus entered was irregular and unauthorized, as stated, nothing Avas done to correct the defect in its entry, and the judgment roll was admitted in evidence on the accounting upon the authority of two cases (Devlin v. The Mayor, 27 Abb. N. C. 311; Hinds v. Kellogg, 133 N. Y. 536), decided since the decision of Clason v. Baldwin (supra), in which, it is asserted, a different view was taken by the Court of Appeals.

In Devlin v. The Mayor, although the report of the referee did not determine the question as to the right of the defendants between themselves, and, therefore, did not comply with the Code of Civil Procedure (§ 1022) by directing the judgment to be entered, this was held not to affect the judgment which was subsequently entered, for the following reasons stated in the opinion of the Special Term of the Court of Common Pleas: “ The parties in suit have stipulated as to the respective amounts to be paid to each person. The corporation counsel * * * made a motion to compel the entry of judgment on such report. The form of this- judgment was agreed upon and the order settled. I think it is now too late for the counsel to the corporation to raise the question presented, and that the defendant, the Mayor, etc., must be regarded as having waived any irregularity there may have been in the order or the report of the referee.” And at the General Term of the Court of Common Pleas it was said that “the report in concise and unmistakable terms settled the form and amount of the several judgments to be entered in favor of the plaintiff and the defendants other than the Mayor, etc., of New York, and this is a sufficient compliance with 'the requirements of section 1022 of the Code of Civil Procedure.” In this opinion the case in the Court of Common Pleas of Hinds v. Kellogg (37 N. Y. St. Repr. 356) is cited and relied upon as an authority.

In that case (Hinds v. Kellogg) it was held that the requirement of section 1022 of the Code is satisfied if, “ from the whole or any part of the referee’s report, the particular form and the terms of the judgment to which the successful party is entitled can be ascertained.” This case was affirmed by the Court of Appeals (133 N. Y. 536), and is, therefore, upon the point decided a controlling authority. There, “ the referee’s conclusion of law in concise and unambiguous terms states the amount of recovery to which the plaintiff is held to be entitled, and judgment thereupon was properly entered.”

In the case under consideration, while the amount to which the plaintiff was entitled is definitely fixed, there is an inconsistency between tlie findings of fact and tlie conclusion of law as to the person against whom the referee reports, and the precise question here is: Could the clerk, upon such a report, and in the absence of any direction as to the judgment to be entered, disregard the referee’s conclusion that the judgment was against the defendant individually, and, as was-here done, enter it against her as executrix? By section 1228 of the Code it is provided that “ judgment upon such a report, or upon the decision of the court upon the trial of the whole issue of fact without a jury, may be entered by the clerk as directed therein upon filing the decision or report.” This is undoubted authority in a proper case for the entry of a judgment by the clerk without application to the court; but there seems to be neither statutory nor other authority which confers upon the clerk the right to exercise judicial functions in determining the one against whom the judgment is to be entered when in the report itself there is an inconsistency or a doubt as to the person against whom it should be entered.

Upon examination of the entire report it is evident that the clerk entered it against the proper person, but that he did it without authority is equally clear, and the question presented is, whether that was a nullity or an irregularity. This General Term inclined to the view that it was a nullity, as shown by the opinion upon'the former appeal; but the two cases referred to of Devlin v. The Mayor and Hinds v. Kellogg (supra), both of which have been affirmed in the Court of Appeals, seemingly support the view that a judgment so entered is an irregularity merely and does not render the judgment itself void. And in the opinion of the General Term of the Court of Common Pleas in Hinds v. Kellogg, authorities are cited in support of two propositions: (1) That an omission to apply to' the court for judgment where such application is necessary to the entry of judgment is an irregularity only and does not render the judgment void; (2) that so long as the judgment is permitted to stand its validity is' in no wise affected or impaired because of any irregularity in the entry thereof.

While the cases cited are undoubted authority for the proposition that the mere absence in the report of a direction as to the judgment to be entered does not affect the validity of the judgment which has been entered in accordance with what from the report is clearly shown to have been the determination or decision of the referee, this is a very different thing from saying that, where an inconsistency appears in the report as to which of two persons the referee lias decided against, sncli conflict can be reconciled or adjusted by the clerk in accordance with his notions of what may have been the conclusion at which the referee should have arrived and of the form of judgment which he should have instructed him to enter. In one case the entering of a judgment upon a report, in all other respects clear and unambiguous; and merely in the absence of a direction, may not involve the exercise of any judicial power ; but the reconciling of differences or inconsistencies in a referee’s report necessarily involves such exercise; and as we find neither statutory nor other authority for it, it would seem that the attempt to exercise such power would be more than an irregularity because unauthorized, and as a consequence a judgment so entered would be invalid and void. If it is within the province of the clerk in a case like this, where the conclusion of the referee reads that one is individually indebted to another, to disregard this because of something else in the report, and enter a judgment against such person as an executrix, then we do not see why the clerk would not be authorized in a case where the referee in terms has decided as against one person, to say that the referee has made a mistake, and thereupon, without direction from the court or referee, to enter judgment against an entirely different person, if, in his opinion, that was the logical conclusion to draw from a reading of the entire report. We think that no such duty devolves upon the clerk, and that should he assume any such functions his act in so doing is unauthorized and void.

When the judgment roll was presented in evidence this defect appeared upon the face of the record, and the objection to it was properly taken, and it is no answer to say that because the judgment was permitted to stand its validity could not thereafter be assailed, because it is only in respect to irregularities or informalities in the entry that it is to be regarded as valid while it stands, but it has no such binding force when the defect apparent upon the face of the judgment roll shows that the judgment itself is a nullity, because that question can be raised at any time when the judgment is sought to be enforced. As held in People ex rel. Brush v. Brown (103 N. Y. 684): It is in the discretion of the court in which the judgment is entered to set it aside or to leave the party to set up its invalidity when an attempt is made to enforce it. (See, also, Foote v. Lathrop, 41 N. Y. 358; Abram, French Co. v. Marx, 10 Misc. Rep. 384.) Here then, the invalidity of the judgment appearing upon the face of the record, the question could be raised whenever the judgment was offered in evidence. It having been so offered, and against objection having been admitted, this was error which lies at the basis of the surrogate’s decree.

The decree, therefore, should be reversed, with costs.

Van Brunt, P. J., and Parker, J., concurred.

Decree reversed, with costs.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    Missouri, Kansas and Texas Railway Company, a Corporation, Plaintiff, v. Union Trust Company of New York, a Corporation, and Central Trust Company of New York, a Corporation, Defendants.

      Mortgage sinking fund —right of a creditor to refuse to accept payment of his claim before it is due.

    A debtor has no more right to pay the principal oí a debt before it is due than he has to refuse to pay it when it becomes due, and the rights of a creditor are correlative.
    The Tebo and Neosho Railroad Company in 1870 made a mortgage to a trust company, to secure certain bonds, containing a clause providing for the creation of a sinking fund to discharge the bonds which, in effect, provided for a payment by tlie railroad to the sinking fund of §30,000 a year, with interest at seven per cent, beginning in 1878, “by the operation of which sinking fund the whole principal of said bonds will be redeemed in thirty years from the date of the first annual payment.” It was further mutually agreed that each year there should be a designation of bonds for redemption equal in amount to the accumulation in the sinking fund. .In 1871 the Missouri, Kansas and Texas Railway Company acquired the property' of the Tebo and Neosho Railroad Company, issued a new mortgage to take up the bonds of the latter company, became the owner of most of them, and afterwards paid in full the bonds issued in substitution.
    No payments to the sinking fund were made, except in one ymar, and then to but a small amount; but in 1895, certain bonds of the Tebo and Neosho Railroad Company being still outstanding, the Missouri, Kansas and Texas Railway Company, proceeding upon the theory that it was indebted to the sinking fund in an amount largely in excess of these latter bonds, offered to pay to the trust company the principal and interest of these bonds outstanding and claimed that upon such payment the bonds should be canceled. The trust company refused to accept the payment upon such terms, and thereupon the controversy was submitted without action.

      Held, that as the bonds were not due, and as there was no privilege given to the railroad company to make any payment larger than the stipulated annual payment, it had no right, unless such right was secured by the sinking fund provision of the mortgage, to pay its creditor before the debt was due;
    That a calculation of the annual payment and its interest, in the view most favorable to the railroad company, would show that had the stipulated payments been made there would still remain bonds outstanding in excess of the number how sought to be redeemed;
    That the fact that the Missouri, Kansas and Texas Railway Company had become the owner of most of the bonds, and had become largely indebted to the sinking fund, did not affect the right of the holders of the outstanding bonds to retain a valuable security which was not yet due and payable.
    Submission of a controversy, upon an agreed statement of facts, pursuant to section 1279 of tlie Code of Civil Procedure.

      Simon Sterne, for the plaintiff.

      Wheeler H. Peckham, for defendant Union Trust Company.
    Butler, Stñllman d¡ HttFbard, for defendant Central Trust Company.
   O’Brien, J.:

The question presented is one relating to the construction of the sinking fund provision in a mortgage made by the Tebo and Neosho Railroad Company, as party of the first part, to the Union Trust Company of the city of New York, party of the second part, under date of June 1, 1870. The sinking fund provision is as follows:

“Fifth. The party of the first part, in consideration aforesaid, further covenants and agrees with the party of the second part and its successors in this trust, that the said party of the first part, its successors and assigns, will, on the first day of June, A. I). 1873, and on the first day of June annually thereafter, pay to the party of the second part, or its successors as aforesaid, as a sinking fund, in gold coin of the United States of America, a sum equal tc one per cent of the aggregate principal of the bonds secured hereby, together with interest thereon at the rate of seven per cent per annum, in gold coin as aforesaid, by the operation of which sinking fund the whole principal of said bonds will be redeemed in thirty years from the date of the first annual payment. And it is mutually agreed between the parties hereto that the said party of the second part shall, in each and every year-after said first payment, designate for redemption by lot an amount of said bonds equal to the accumulations in said sinking fund, which shall be redeemed at the par value thereof, due notice of the numbers of the bonds so designated having been previously published by the said party of the second part in two or more of the daily newspapers printed in the city of New York for sixty days, at the expiration of which interest on the bonds so designated shall cease, and the premises embraced in this mortgage shall thereafter be discharged from so much of the lien hereby imposed thereon as the bonds amount to thus designated for payment. And it is further mutually agreed that the said party of the second part shall and will cancel and discharge each and every of the bonds secured by this mortgage, with all the interest coupons annexed thereto, which shall be redeemed as aforesaid, and will make or cause to be made upon each bond a brief note or memorandum, stating when the same was canceled and from whom said bond was. received, in such manner and form as will enable the party of the first part to trace the transaction, and will immediately return so many bonds as are redeemed to the said party of the first part canceled, and that a proper registry and account of all the bonds so redeemed shall be kept by both of said parties hereto,, and shall'be open for the examination and inspection of any parties in interest at all reasonable times. And the number or amount of said bonds canceled shall.be reported by the said party of the first part to its stockholders in each of its annual statements.”

The whole issue of bonds under the mortgage was 2,000, of the denomination of $1,000 each, making the aggregate principal of the bonds $2,000,000. After this mortgage was made, and on or about January, 1871, the plaintiff acquired the property of the Tebo and Neosho Railroad Company and assumed and became charged with its obligations. On February 1, 1871,' plaintiff issued a new mortgage for the purpose, among other things, of taking up these Tebo and Neosho bonds and securing satisfaction of the mortgage. As tlie result, 1,651 of the bonds were received by the Union Trust Company as financial agent of plaintiff in exchange for bonds issued under the new mortgage. Afterwards the said new or substituted bonds were all paid in full and the mortgage of February 1, 1871, was satisfied of record. In addition’to these 1,651 bonds, 159 others of the Tebo and Neosho issue were redeemed and paid by plaintiff under a plan of reorganization made in 1889 to retire its then existing indebtedness. These latter are held by the Central Trust Company subject to the order of the plaintiff for cancellation. There has been paid into the sinking fund enough to redeem three bonds, which payment was made in June, 1873, and no payment has been made since. These added together make 1,813 bonds practically in the possession and under the control of plaintiff, leaving but 187 of the Tebo and Neosho bonds outstanding. To discharge these the plaintiff wishes to j>ay into the sinking fund enough of the arrearages to pay or redeem all these 187 bonds, and thereupon to have the mortgage canceled. Whether it has the right to do so is the question before the court.

As the time fixed for the payment of the principal of the mortgage has not arrived, it is clear that the plaintiff has no right to pay what remains due to outstanding holders, unless such right is secured by the sinking fund provision in the mortgage, under which, as appeal’s by its terms, the mortgagor was to pay $20,000 annually to the trustee for the purposes of the sinking fund and an equal amount of bonds was to be retired yearly. Such annual payments have never been made, the only amount received by the sinking fund and used to redeem bonds being, as already stated, sufficient to retire three of the bonds, which payment was made in 1873. Notwithstanding the fact, therefore, that nothing was done during all the intervening years towards carrying out the sinking fund provision, the plaintiff, claiming that it owes to this sinking fund an amount largely in excess of the outstanding bonds, insists on its right to make a payment to such fund which will redeem the whole number, so that the mortgage may be canceled and discharged of record. To this end the plaintiff, in the year 1895, offered to pay to the Union Trust Company the sum of $193,000, which offer was coupled with a request that so much of the said sum be put into the sinking fund as should be necessary to apply to the redemption of the principal and interest of the 187 bonds still outstanding, and that the trust company call in these outstanding bonds, and that thereupon all the bonds, including those in the sinking fund and those held by the Central Trust Company itself, be canceled and destroyed, and that the Union Trust Company satisfy of record the mortgage of June 1, 1870. The Union Trust Company declined to accept the money and apply it as requested unless ordered so to do by the court.

Although no action has been taken looking towards the carrying out of the terms of the sinking fund provision since 1873, we do not think the plaintiff has lost its right to make payments into the sinking fund or to insist upon the carrying out of the sinking fund provision, its right in that respect not having been impaired either by the Statute of Limitations or by laches. But we do not think the construction contended for by plaintiff is correct, that it should be permitted to pay a sum of money into the sinking fund equal to the amount of the outstanding bonds, and thus compel the trust company to cancel the mortgage. Although by its terms the payment to be made annually to the sinking fund was fixed at $20,000 and interest, we find no expression of a right or option to pay a larger amount, or to pay off the entire mortgage whenever the railroad company should deem it for its advantage. While, therefore, the rights of the parties are to be determined by the terms of the mortgage, including the sinking fund provision, it is clear that the bondholder has as much right to insist that his bond shall not be retired, except according to the provisions of the mortgage, as he has to have it redeemed or paid according to the same provisions. If the payments had been made annually there would be left at the present time bonds outstanding and not redeemed amounting to $479,200, and this, assuming that all the money paid annually was applied to the redemption of outstanding bonds, and nothing was paid for expenses of administering the trust, in the way of advertising, drawing bonds, commissions, etc. Under a construction most favorable to plaintiff, therefore, if the sinking fund payments and redemptions had been regularly made, thgre would be outstanding to-day at least 479 bonds, and they could be redeemed, only at the rate of $20,000 and interest thereon per year. The fact that the plaintiff has bought up or exchanged or in any other way obtained a number of the bonds in no way impairs the obligation of the mortgage contract, and does not destroy the right of those holding the outstanding bonds to insist that they shall not be compelled to deliver them up until under the contract the railway company can require their delivery. The right of a lender not to receive his debt before it is due is quite as sacred as is his right to receive it when it is due. The debtor has no more right to pay the principal before it is due than he has not to pay it when it •becomes due, and the rights of the creditor are correlative.

The plaintiff, then, not having the right to pay off these bonds at any time, but only at the rate of a certain number annually, there is no force in the contention that it can buy up or exchange or in some way obtain the Tebo and Neosho bonds and cancel them, and then apply any accumulation of sinking fund that it may choose to the redemption of such bonds as remain outstanding. This would be but another way of saying that, the plaintiff had the right, whenever it chose, to pay off the bonds; which claim is manifestly unequal and unjust, because, taking the high rate of interest which these bonds bear of seven per cent, it is evident that the holders regard them as valuable, and they should not be obliged to accept less than their value, unless, under the agreement pursuant to which they were issued, the company, instead of buying them at their market value, has the right to pay them off at less, namely, at par. Having resort, therefore, to the contract between the parties, we think the position of the Union Trust Company, in refusing to accept the amount tendered by the plaintiff and- cancel the mortgage, is correct. For if we assume that the terms of the mortgage were literally carried out, and that beginning in the year 18Y3 the $20,000 had been paid into the sinking fund and twenty bonds thereby redeemed, and that this course had been pursued in the year 18Y4, and the subsequent years down to the present time, it would make in June, 1895,twenty-two years from the first payment, and provision would thus have been made for twenty-two payments and redemptions; and applying all these payments to the bonds that have been exchanged or purchased by the plaintiff, it would leave all the bonds over the amount so redeemed which for the purposes of the sinldng fund must be counted as still outstanding. The plaintiff is entitled to make the annual payments to the sinking fund, but to no greater and no less amount than is required by the sinking fund provisions. The result would be that the plaintiff in June of this year could pay such installment as then became due and apply the same to the redemption of bonds as provided by the terms .of the Tebo and Neosho mortgage, and thus from year to year, pursuant to such terms, payments could be made and drawings of outstanding bonds had.

It will be noticed that the mortgage provides for the payment into the sinking fund of “ a sum equal to one per cent of the aggregate principal of the bonds, * * * together with interest thereon at the rate of seven per cent per annum.” We do not think it necessary to determine from what time the interest runs, but, taking the view most favorable to the plaintiff, that the interest is from the date of the bonds and mortgage, this would make the first payment amount to $20,000 and three years’ interest in all, namely, $24,200; and, as shown by the computation of the defendant the Union Trust Company, if we add $1,400 interest for each successive installment, the total payments into the sinking fund in thirty years would be but $1,335,000, so that until the thirty years had rolled round the amount of bonds that could be retired by means of the sinking fund would be no more than the sum just stated. The recital in the mortgage, therefore, that” by the operation of which sinking fund the whole principal of said bonds will be redeemed in thirty years from the date of the first annual payment,” is erroneous. But if we should assume that the plaintiff was at liberty, over and above the annual payment of $20,000 and interest, to pay into the sinking fund an amount sufficient to retire all the bonds at the end of thirty years, there would yet remain of such term eight years after the 1st of June, 1895, during which it would be necessary to make payments into the sinking fund for the redemption of such outstanding bonds as were not otherwise purchased or exchanged. In any view, therefore, that we may take, except the one that the plaintiff has the absolute right at any time to pay off the bonds, which is not claimed, the sinking fund provisions cannot now be resorted to for the purpose of paying off the outstanding bonds upon the theory that the plaintiff, being indebted to the sinking fund in a sum exceeding the amount of the bonds outstanding, has the right to direct the application of such sinking fund to a discharge of such outstanding bonds; disregarding the part which such as have been purchased or exchanged must play in a fair and just construction to be given to the terms of the mortgage as bearing upon the rights of the holders of the outstanding bonds.

Our conclusion, therefore, is that the Union Trust Company was right in its refusal to accept the amount tendered, coupled with the condition that it should be applied to the paying off of the outstanding 187 bonds and the mortgage to secure them canceled, and there should be judgment accordingly for the defendant Union Trust Company, with costs.

Van Brunt, P. J., and Parker, J., concurred.

Judgment ordered for defendant the Union Trust Company, with costs.


text:
    Nelson G. Rodgers, Plaintiff, v. The Adriatic Fire Insurance Company, Defendant. In the Matter of the Petition of Arianna E. Scammon, as Executrix, etc., of J. Young Scammon, Deceased, Appellant; The Metropolitan Trust Company of the City of New York, Respondent.

      Foreign judgment recovered after the dissolution of a domestic corporation —its effect — by what law determined.

    All actions pending-in the courts of the State of Now York or of another State, against a domestic corporation, are ended by a judgment in an action brought for that purpose dissolving the corporation, and unless, by authority of the court which appointed him, the receiver of the corporation intervenes so that jurisdiction is continued, a judgment enforcible against the corporation or its receiver, or one enforcible against the assets or property of the corporation within the State of New York, cannot be obtained after such judgment of dissolution.
    A judgment recovered in Illinois in 1889, against a corporation of the State of New York which was dissolved in 1883, does not constitute a valid claim against assets in the hands of the receiver of the corporation in the State of New York. The effect of a judgment of dissolution is to be determined by the law of the State where it is granted, and it is not within the power of the Legislature or of the courts of another State to impair the force of such , a decree.

      Qucere, as to what effect the statute of another State upon this subject has in regard to assets of the corporation in that State.

      Appeal by tlie petitioner, Arianna E. Scammon,'as executrix, etc., of J. Young Scammon, deceased, from an order of tlie Supreme Court, made at the New York Special Term and entered in the office of tlie clerk of tlie county of New York on the 19th day of March, 1895, denying her petition that the Metropolitan Trust Company of the city of New York be directed to pay to her the sum of $232.26 out of the funds in its hands as receiver of the Adriatic Fire Insurance Company.

      Charles B. Alexander, for the appellant.

      Oliver P. Buel, for the respondent.
   O’Brien, J.:

In the year 1874, J. Young Scammon, petitioner’s testator, held two matured policies issued at Chicago, Illinois, by the Adriatic Fire Insurance Company, a New York corporation. In July, 1875, the insured property having been destroyed by fire, actions were brought against the company on each policy within the time required by their terms. The company was duly served with process of the' court of general jurisdiction of the State of Illinois, and appeared and defended each action. Suits were also brought by Scammon against a number of other insurance companies upon other policies issued upon the same property. While these actions were pending stipulations were entered into by which, in effect, it was provided that all the suits should abide the event of Scammon’s suit against the Commercial Union Assurance Company.

In 1879 an action for the dissolution of the Adriatic Fire Insurance Company was begun in the Supreme Court of this State, and thereafter one William A. Seaver, president of the company and owner as is claimed of all the stock, was made receiver, and it is alleged that he assumed control of the defense of the two actions of Scammon against the company, and, in fact, though not in name, was connected with such defense as receiver until his death, when one Nelson G. Rodgers was appointed receiver in his stead and continued as such until June, 1883, when he was removed and the Metropolitan Trust Company of New York was substituted and continued as such receiver pursuant to the judgment of dissolution, which was entered against the company in August, 1883. The Metropolitan Trust Company thereafter conducted the defense until notified in February, 1887, of the decision of the case of Scammon v. The Commercial Union Assurance Compamy, the event of which action, as stated, the actions against the Adriatic Company were to abide, when it paid the counsel appearing in the actions and stated to them that it would not continue to be represented in the litigation, and thereafter counsel did not appear. It is claimed that neither the petitioner’s testator nor his attorneys had any notice of the proceedings for the dissolution of the company, and that they did not know of such proceedings or that any orders had been made thereunder until after judgments had been taken by default against the company in 1889.

In 1884 a referee was appointed to take and state the receiver’s accounts; the referee advertised for claims and thereafter reported to the court, and by order the receiver was directed to retain in its hands a sum to await the final disposition of the Scammon claims ; .and it is to reach the sum so retained and upon the strength of the judgment obtained by default in Illinois in 1889, that the petitioner seeks the aid of the court.

If the Illinois judgments are illegal and unenforcible against the receiver in this State, then the order appealed from was right. The crucial question presented, therefore, is: Were the judgments entered in favor of the petitioner’s testator valid, notwithstanding the previous dissolution of the corporation ? Their validity is claimed upon the ground that, the Illinois court having general jurisdiction and having the right, regardless of the dissolution of the corporation, to proceed during the term of two years, by the statute of Illinois, as well as by the stipulations made in the suits pending in that State, the judgments entered were valid both in Illinois and New York.

In regard to the stipulations, all that need be said is that the first, hy its terms, expired on the reversal of the judgment in the case of -fhe Commercial Union Assurance Company ; and the second, which was made subsequent to the dissolution of the corporation, was entered into without authority.

This brings us to the question as to the effect of the Illinois statutes, and upon the view taken by the Illinois courts as to the construction of their own statutes, no more instructive case can be found than that of Life Association, etc., v. Fassett (102 Ill. 315). As therein said : From these and other provisions of the statute, it. clearly appears that it is a part of the settled policy of the State,,at least so far as domestic corporations are concerned, that, upon their dissolution, however that may be effected, they shall, nevertheless, be regarded as still existing for the purpose of settling up their affairs and having their property applied for the payment of their just debts; and we see no sufficient reasons why the same policy should not, so far as practicable, be extended to foreign corporations that ham property here and are located among us for business purposes.” It will thus be seen that the extent to which that decision goes is in holding that the dissolution of the corporation shall not take away or impair a remedy given against such corporation previous to its dissolution as respects assets or property in that State. As said in another portion of the opinion in that case: “ "Whatever may be the effect of a decree of dissolution in the State creating the corporation, it may nevertheless be regarded as at least a de facto corporation here, for the purpose of enabling creditors to reach its effects in this State.” And again : “ It' is not denied or even questioned that by the common law a corporation, which has been dissolved absolutely for all purposes whatsoever, stands upon the same footing as a dead person with respect to any power in the courts to enter a valid judgment against it.” We do not find, therefore, either in the language of or the construction given to the" statutes of Illinois, that the judgments so entered after the dissolution of the company were valid for any purpose except to reach assets of the company which might be in that State.

If, however, there was a statute that went as far as claimed by appellant, we do not think it would give the judgments validity in this State. It must be remembered that the Adriatic Fire Insurance Company was a creature of our own statutes, and the judgment dissolving it pursuant to our statutes put an end to its existence, and it was not in the power of the Legislature or the courts of any other State to impair the force of the decree of dissolution in New York. Neither the Constitution of the United States nor any principle of comity goes to the extent of permitting such interference. The suggestion that full faith and credit shall be given to the judgments of other States is thus answered by Story in his Conflict of Laws (§ 609), in commenting on article 4, section 1 of the Constitution:

“ But this does not prevent an inquiry into the jurisdiction of the court in which the original judgment was rendered to pronounce the judgment, nor an inquiry into the right of-the State to exercise authority over the parties or the subject-matter. * * * The Constitution did not mean to confer any new power upon the States, but simply to regulate the effect of their acknowledged jurisdiction over persons and' things within their territory. It does not make the judgments of other States domestic judgments to all intents and purposes, but only gave a general validity, faith and credit to them as evidence.”

That no such force should be given to a statute of another State when in conflict with the law of our own is well exemplified by the effect the adoption of such a view would have in the case at bar. Under our own law, upon the dissolution of the corporation, creditors could not proceed and enter judgment against it as though it were still alive. And yet if creditors in another State might thus obtain judgments that would be valid in New York, the result would be to deprive our own citizens suing in our own courts of a right or advantage conceded to strangers suing in the courts of a foreign State. It would permit the Legislature and the courts of every other State to override the statutes of New York and the judgments of our Supreme Court.

We think the inquiry, therefore, must be directed, not to what may be the force and effect of an Illinois judgment, but to whether under our statutes the parties in Illinois, after the judgment of dissolution here, could proceed and take judgments against the corporation by default. In Sturges v. Vanderbilt (73 N. Y. 384), where a statute of New York was sought to be availed of, it was said: “It is not material to refer to the New Jersey statute as to the mode of continuing an action, as that is a matter of practice which must be governed by our own laws, and in the present case there was no attempt to continue the action pursuant to the laws of either State.” So far as our own State is concerned, we must regard the law as settled in favor of the view that by the judgment in 1883 dissolving the company, that corporation ceased to exist, and all suits pending against it, including the suits brought by Scammon in Illinois, abated. No valid judgment thereafter could be rendered against it, and the judgments obtained by default in 1889 are null and void so far as being enforcible in this State, whatever validity they might have as against property or assets of the company in Illinois. In McCulloch v. Norwood (58 N. Y. 566) it was said: “We feel constrained to differ from the learned court below on the question of the validity of the judgment rendered in the Ohio court against the corporation of which the defendant is receiver. * , * At that time the corporation was not in existence, it having been dissolved by a judgment duly reudered in the Supreme Court of this State. * * * And the defendant having been appointed receiver of its property and effects, the corporation had no longer any legal existence or capacity, to be sued, or any property which could be subjected to a judgment to be rendered against it. All authority to appear in the case had been withdrawn from the attorneys who had formerly represented the dissolved corporation.” In the case of People v. Knickerbocker Life Ins. Co. (106 N. Y. 619) suit was pending in Tennessee, and after a judgment against the company, and while upon appeal to the Supreme Court of the United States, and after dissolution, the receiver appeared through counsel on the argument. The judgment was reversed and a new trial ordered, and thereafter a judgment was entered by default against the company. The court there referred to and approved the principle decided in McCulloch v. Norwood (supra), and in addition disposed of the question of the effect of the receiver’s appearance upon the appeal as validating the judgment. It was therein held that the dissolution of the company put an end to the action, and at the time of the rendition of the judgment it had no property against which the judgment could be enforced; that the receiver could not be affected by it unless he had, by some action under the direction of the court appointing him, made himself responsible for the final result; that the intervention in the United States Supreme Court did not make him so responsible, as it was simply for the purpose of protecting the assets in his hands from an incumbrance which had no connection with the subject-matter of the litigation, and the reversal of the judgment ended his connection with the action, and the parties litigant were thereby restored to the same position in which they were prior to its rendition; that the United States court acquired no jurisdiction over him or over the funds sought to be reached by its adjudication, and that, therefore, the receiver was not estopped by the judgment.

It is useless to multiply the cases, because by those of Matter of Norwood (32 Hun, 197), Sturges v. Vanderbilt (73 N. Y. 384), Martine v. International Life Ins. Co. (53 id. 339), and others that might be cited, the same principle has been affirmed, so that, as .stated, we must regard the rule as settled that actions pending in the courts of our own or of another State against a domestic corporation are ended by a judgment of dissolution, and unless by authority of the court appointing the receiver he intervenes so that jurisdiction is continued, a valid enforcible judgment against the company or its receiver, or one enforcible against the assets or property within this jurisdiction, cannot be obtained. The reasons for this rule are not hard to find. A court has no more authority te render judgment against an artificial person after dissolution than it has against a natural person after death. Such dissolution, pursuant to the laws of the State creating the corporation, operates as its legal death in any other State in which it may be doing business, and it must be assumed that every person contracts with the corporation with knowledge that the State under whose authority it was created may arrest its franchises and dissolve it and wind up its affairs.

' Having reached the conclusion, therefore, that so far as the receiver here and the assets in its hands are concerned, the judgments obtained in Illinois by default after dissolution are null and void, the court below was right in denying the petition requiring the receiver to pay the amount of such judgment.

Order accordingly affirmed, with ten dollars costs and disbursements. x

Van Brunt, P. J., and Follett, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Van Brunt, P. J. :

text:
    The People of the State of New York ex rel. The Rector, Church Wardens and Vestrymen of St. Ann's Church of Morrisania, Relator, v. Ashbel P. Fitch, Comptroller of the City of New York, Respondent.

      Assessment — statute directing its apportionment “ratably” ^-excludes an apportionment according to benefits — Laws of 1894, chap. 47.
    Where by a special act of the Legislature (Chap. 47 of 1894) the comptroller of the city of New York is directed to apportion a certain assessment between that portion of certain lands conveyed to a church and held and used by it for cemetery purposes, and the portion of said lands not held by the church for cemetery purposes, ratably to the proportion between said cemetery lands and the remaining lands of the church which are assessed, it is the duty of the comptroller to apportion the assessment according to areas.
    In such case the comptroller should not apportion the assessment according to the benefits received, as the effect of such action is, virtually, to levy a new assessment which was not contemplated by the act.
    Certiorari issued out of the Supreme Court and attested on the 25th day of February, 1895, directed to Ashbel P. Fitch, comptroller of the city of New York, directing him to certify and return to the office of the clerk of the county of New York his proceedings in regard to apportioning, under chapter 47 of the Laws of 1894, the sum of $2,232.44, between lands of St. Ann’s Church of Morrisania held and used by it for cemetery purposes, and other lands of said church held and used by it for other than cemetery purposes, and in demanding interest of said church on the sum apportioned to lands not held for cemetery purposes, and in refusing to cancel on the assessment books of the city of New York the sum apportioned to the cemetery lands of said church.

      L. O. Van Doren, for the relator.

      Geo. L. Sterling, for the respondent.
   Van Brunt, P. J. :

The relator is the owner of a large tract of land in the twenty-third ward, comprising most of the block bounded by One Hundred and Thirty-ninth street, One Hundred and Forty-first street, St. Ann’s avenue and Brook avenue. .On the 30th of August, 1869, an assessment was confirmed to reimburse the city for the expense of acquiring title to the lands lying within the lines of East One Hundred and Thirty-ninth street, between Rider and St. Ann’s avenues. This assessment was confirmed by an order of this court. The total cost of the proceeding was $11,971.70, and the amount assessed against the relator’s property with which we are here concerned was the sum of $2,232.11. A part of this land had been conveyed to the church for cemetery purposes only, and a part for other than cemetery purposes. By chapter 17 of the Laws of 1891 the comptroller was authorized to apportion this assessment between that portion of such lands conveyed to said church and held and used by it for cemetery jiurposes and that portion of said lands not so held for cemetery purposes by said church ratably to the proportion between said cemetery lands and the remaining lands of said church so assessed, and to cancel and annul that proportion of said assessments which said comptroller should so apportion as levied and made against the said cemetery land of said church. The comptroller did apportion this assessment' between that portion of the lands conveyed to the church and held and used by it for cemetery purposes, and that portion of said land not so held for cemetery purposes by said church ratably to the proportion between said cemetery lands and the remaining lands of said church so assessed. It appears, however, upon an examination of the apportionment that the assessment was apportioned with reference to the amount of benefits received and not in accordance with' the area of each parcel. And to review this decision of the comptroller this writ of •certiorari was issued.

The question presented, therefore, is, whether the comptroller was required to apportion this assessment with reference to the area of the tracts or with reference to the amount of benefit received. It .seems to us that there can be but one answer to this question. Attempting to apportion the assessment according to what the comptroller might think was the benefit received, would be virtually the levying of a new assessment. Such a proceeding does not seem to have been contemplated by the act. The comptroller was directed by the act to apportion the assessment ratably between the lands held for cemetery purposes and those not so held; and the only way it seems to us in which this ratable apportionment could take place would be by apportioning the assessment according to area. It is evident that it was not intended to confer upon the comptroller judicial powers in making this apportionment, otherwise the explicit direction contained in the statute would not have been given.. , In other statutes relating to the subject of apportionment the comptroller is authorized to apportion the same as might seem to him to be just and equitable. But such language is conspicuously absent from the act now under consideration. He is to apportion the assessment ratably between said lands, etc. In none of the statutes where the words just and equitable ” are used do we find the word ratably.” The only ratio which is presented is the relative areas o-f the portions of the land which are to be exempted from assessment because used for cemetery purposes and those which are not to be so exempted-. . .

■We think, therefore, that the decision of the comptroller proceeded upon an erroneous basis and that his action should be •annulled and the proceedings sent back for further action, without costs,

Follett and O’Brien, JJ., concurred.

Proceedings of comptroller annulled, case sent back for further action, without costs.


author: Van Brunt, P. J.:

text:
    The People of the State of New York ex rel. Louise C. Redfield, Relator, v. Joseph Murray and Others, as Commissioners of Excise for the City and County of New York, Respondents.

      Board of excise — reconsideration of a decision refusing a'license — protests against the granting of a license —- notice to the party protesting — Laws of 1892, chap. 401.
    A board of excise, created by chapter 401 of the Laws of 1892, is a continuing tribunal and may reconsider its decision in refusing a license, and subsequently grant one.
    A property holder who', in the first instance, files with such board a protest against the granting of a license, does not, by such filing, become a party to the proceeding. He is not entitled to any notice of the reconsideration by the board of excise of a former decision refusing to grant the license.
    Certiorari issued out of the Supreme Court and attested on the 26th day of March, 1895, directed to Joseph Murray, Charles H. Woodman and Julius Harburger, composing the board of excise of the city and county of New York, commanding them to certify and return to the office of the clerk of the county of New York their proceedings with reference to an application by Patrick Duffy for a license to sell liquors.
    The Excise Law, the construction of which was in question in this proceeding, is found in chapter 401 of the Laws of 1892.

      Robert L. Redfield, for the relator.

      Alfred R. Page, for the respondents.
   Van Brunt, P. J.:

In August, 1894, one Patrick Duffy made an application for an excise license for the building No. 850 Sixth avenue in the city of New York, and complied with the requirements of the law in making such application. Protests were hied with the board of excise against the granting of the license by the relator and others, and on the 2Jth of September, 1894, the board of excise rejected the application and refused the license; but on the 23d of February,, 1895, without any notice to the relator, the board reconsidered its-action and granted the license. This writ of certiorari was thereupon sued out by the relator, a property holder in the vicinity, for the purpose of reviewing the action of the board of excise.

The board of excise being a continuing tribunal, and having-jurisdiction of the subject of granting excise licenses, and having certainly the power to have entertained a new application and granted the license, we see no reason why it could not reconsider its decision and grant the license although it had previously refused so to do. Its powers are entirely different from those of a tribunal whose functions are exhausted by exercise. As has already been stated, it is a continuing board having a continuous power to acttipon the subject of licenses. With the projuiety of the granting-of the license in controversy this court has nothing to do. It can only consider the question as to whether the board was without-jurisdiction in the action which it took. The only right of review given by the statute is in the case of the refusal of a license.

It is claimed, however, that the reconsideration by the board of its previous action, and the granting of the license thereupon, was without authority because it was done without notice to the relator,, who, it is claimed, by the filing of a protest with the board of excise,, had become a party to this proceeding. But we find nothing in the-statute which justifies any such claim. The law does not require the board to give notice to persons who may file objections to the-granting of a license ; and, therefore, the failure to give such notice in respect to its action could not in any manner affect its validity.

The writ should be dismissed, with costs.

Follett and O’Brien, JJ., concurred.

Writ dismissed, with costs.


author: Per Curiam :

text:
    Andrew Gilhooly, as General Assignee for Benefit of Creditors of James Grange, Respondent, v. American Surety Company, Appellant.

      Suit by an assignee for creditors — defense that the assignment was fraudulent — bill of particulars required of defendant — fads required to be stated therein.

    In an action brought by an assignee for the benefit of creditors to recover damages for the unlawful seizure of personal property belonging, as alleged, to him as such assignee, the answer denied that the assignor had set over to plaintiff all his property, and alleged that the assignment was made with intent to delay and defraud creditors, and particularly a certain bank, which was the real party in interest. It appeared by the plaintiff’s affidavit that the assignor had fled from the State and that the assignee was ignorant of his whereabouts, and further that the assignment contained preferences.

      Held, that the defendant should be compelled to state by a bill of particulars-whether it claimed that the assignment was void on account of fraudulent preferences, in which case it should state the preferences; or whether the alleged fraud consisted in the failure of the assignor to transfer all his assets to the-plaintiff, in which case the defendant must%>articularize the assets withheld ; or if both these grounds of fraud were assigned then the defendant should state all the particulars above specified.
    Appeal by the defendant, the American Surety Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of April, 1895, ordering a bill of particulars of the specific acts of James Grange, assignor of the plaintiff, which the defendant intended to prove upon the trial of the action as showing that an assignment made by said Grange to the plaintiff was intended to hinder, delay and defraud creditors, and particularly the Franklin National Bank of the city of New York.
    The action was brought by the plaintiff to recover damages for an unlawful seizure of personal property belonging to the plaintiff, as assignee for the benefit of creditors of James Grange. It was brought firát against the sheriff who levied under a judgment recovered against Grange by the Franklin National Bank. At the instance of the latter the American Surety Company indemnified the sheriff and was substituted as defendant.
    The answer denied that Grange transferred to the plaintiff all his property and assets of every kind. It also alleged that the said assignment was made by the said James Grange with intent to delay, hinder and defraud his creditors, and particularly to delay, .hinder and defraud the Franklin National Bank of the city of New York, and that said assignment was and is altogether void as against the said Franklin National Bank and the other creditors of the said Grange, and that the title to the property mentioned in paragraph II of, the complaint never passed to the plaintiff, but that said property remained the property of J ames Grange.
    The plaintiff alleged in his own affidavit that said assignment was -made and delivered to deponent by said James Grange on the 19th day of June, 1893, on or about the same date the said Grange fled from the State of New York to avoid criminal prosecution for a number of forgeries for over $50,000 in amount, alleged to have been committed by him, and since June 19, 1893, deponent has not seen the said Grange, and ever since said date said Grange has concealed himself and still conceals himself in some place to deponent unknown, with the intention, as deponent verily believes, of never returning to the State of New York. Deponent has no knowledge whatsoever of his whereabouts.
    Deponent further says that said general assignment was a preferential one, the preferred claims being five in number, and exceeding $20,000 in amount.

      J. C. Ross, for the appellant.

      Ernest Hall, for the respondent.
   Per Curiam :

The defendant should not be required to specify its evidence, but enough of the particulars should be given to prevent surprise upon the trial. In that connection we think the defendant should state whether it claims the assignment to be void on account of fraudulent preferences, in which case it should state what preferences are claimed to be fraudulent; or, if the alleged fraud consists in the failure of the assignor to transfer all his assets to the plaintiff, in that event the defendant should particularize what property, if any, it expects or intends to prove on the trial was withheld by the assignor from the assignee; and if on both grounds, then all the particulars above specified should be given.

Order, as so modified, affirmed, without costs.

Present- — • Yan Brunt, P. J., O’Brien and Parker, JJ.

Order, modified, as directed in opinion, and affirmed as modified, without costs.


author: Parker, J.:

text:
    Charles E. Lichtenhein, Appellant, v. Charles E. Fisher, Respondent.

      Hiring for a year — when presumed to be extended — discharge of a clerk during the term of his employment — customers following discharged clerk to place of new employment — not a breach of original employment — assumption by a firm of a contract of hiring.

    The presumption is, that where a party enters into the service of another at a stipulated annual compensation, and continues in such service beyond the year, he does so on the same terms.
    If a clerk be discharged during the term of his employment and goes to another store of the same character and there takes employment, he does not commit a breach of contract with his former employer because his friends and personal customers follow him from the old place of employment to the new, whether at his suggestion or otherwise. To accomplish such a result it must at least appear that it was embodied in the contract of employment with his former employer, that during the term of service contracted for such employer should have the patronage of all customers which the employee could personally control.
    In an action brought to recover for wages claimed to be due an employee from his employer after the alleged wrongful discharge of the employee, it appeared that, subsequent- to the first employment, the original employer had formed a co-partnersliip, and there was evidence which would have permitted the jury to have found that the co-partnership assumed all the contracts and obligations growing out of the business in which the original employer was engaged, although there was no evidence that the particular contract of employment was, in terms, assumed by the co-partnership.

      JXeld, that the question whether the co-partnership assumed that particular contract should have been submitted to the jury.
    Arpeal by tbe plaintiff, Charles E. Licbtenbein, from a judgment of tbe Supreme Court in favor of the defendant, entered in •the office of the clerk of the county of New York on the 12th day of December, 1891, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the New York Circuit.
    This action was brought to recover the amount of wages alleged fo be due an employee from his employer after the alleged wrongful discharge of the employee.
    The action was originally brought against Charles E. Bliss and Charles E. Fisher, and the defendant Charles E. Bliss having died prior to the trial of the action, the action was continued against Charles E.'Fisher as sole defendant.

      John Sabine Smith, for the appellant.

      Charles D. Ridgway, for the respondent.
   Parker, J.:

The plaintiff was employed by Charlés E. Bliss for one year from May 1,1891, at a salary of $1,950 per annum, payable weekly. The 1st of May, 1892, came and went, with the plaintiff rendering precisely the same service for Bliss as he had during the previous year, and without any other or different arrangement with him as to compensation, Bliss paying him on each Saturday night fifty-seven dollars and fifty cents, as during the previous year. Thei presumption is, where a party enters the service of another at a stipulated annual compensation and continues beyond the year, that he does so on the same terms. (Adams v. Fitzpatrick et al., 125 N. Y. 121; Douglass v. Merchants’ Ins. Co. of N. Y., 118 id. 484; Huntingdon v. Claflin, 38 id. 182; Vail v. The Jersey Little Falls Mfg. Co., 32 Barb. 561.)

As there is no evidence whatever in opposition to this presumption, for the purposes of the present consideration it must be assumed that on the 1st day of May, 1892, the plaintiff entered upon a new contract of hiring with Bliss for a period of one year at the same salary. June 1,1892, Bliss and this defendant, Charles E. Fisher, formed a partnership under the firm name of Charles E. Bliss & Co., and thereafter, and until the death of Bliss during the latter part of May, 1893, they carried on business of the same character and at the same place as Bliss had done prior to the formation of the partnership. The plaintiff continued to do the same work after the partnership was formed as he had done before, receiving compensation weekly at the same rate until the 12th day cf November, 1892, when he was discharged without cause.

The position of the defendant being that the hiring was from week to week, and could be terminated at any time, the evidence requires us to say, as we have already said, that at the time of the formation of the partnership the plaintiff was in the employ of Bliss under a contract which had about eleven months more of life, and the firm could only become liable thereon by an assumption of the contract.

While there is no evidence that this particular contract was, in terms,. assumed by the partnership, there is evidence, we think, which would have permitted the jury to find that the partnership assumed all the contracts and obligations growing out of the business in which Bliss was engaged.

The respondent urges that if the position which we have taken be correct, nevertheless the judgment dismissing the complaint should he affirmed, because there exists another ground which must necessarily prevent a recovery. He insists that when the plaintiff made his contract with Bliss in May, 1891, the plaintiff agreed to bring to Bliss certain customers of his own, and that he subsequently did so ; after his discharge he endeavored to, and did take certain of the customers away from defendant’s firm. Thus, it is contended, he violated the contract which he is now insisting in this action is valid and enforcible as against his employer. It was a duty which plaintiff owed to the defendant to accept employment of the same general character, if opportunity should • offer, to the end that it should go in reduction of the amount of his salary for the unexpired term. This the plaintiff attempted to do, and while he did not secure a position with a salary,’ he did find an opportunity to do work of the same general character as that in which he. had been previously. engaged, but on commission. Among the customers he obtained was one, and only one, who was doing business with his employers .at the time of his discharge. Of course it is not pretended in the absence of a special contract, with reference to his former customers, constituting part of the contract of hiring, that he would not be permitted to do their business after his discharge, or even to solicit their business.

What is claimed is, that it was a part of the agreement, when he was employed, that Bliss should have the business of plaintiff’s customers so far as he could control them; and, therefore, to secure the. patronage of such a customer during the contract period would constitute a breach on the part of the plaintiff which would deny recovery to him. One difficulty with defendant’s position is that it assumes it to be established as a part of the original contract of employment, that the plaintiff agreed that defendant should have the patronage of his customers, so far as he could control them, during the term of employment. The evidence upon this .point is not very satisfactory, apparently for the reason that the parties did not seem to appreciate, at the time, that it was a matter-of any moment. Possibly, had the question been submitted to it, the jury might have found the fact to be that the plaintiff had contracted with-Bliss that he should have the patronage of his customers during the term of employment. But, on the other hand, it might have found, as the proper inference of fact to be drawn from all the evidence on the subject, that the plaintiff tried to impress Bliss as to the value of his services, by telling him about the number of customers whose confidence he had secured by upright dealings.

Upon such a finding as the last there could not be predicated a conclusion of 'law that the plaintiff had violated his contract by accepting or even soliciting the business of such a customer. When are frequently employed as clerks in stores because they are known to have a large number of customers who bestow their patronage where such clerks are employed. And if the clerk be discharged during the term of his employment and goes to another store, of the same character, to take employment, as the law says he must if lie lias a chance, he does not commit a breach of contract because his friends and personal customers follow him from the old place of employment to the new, whether at his suggestion or otherwise. To accomplish such a result it must at least appear that it was embodied in the contract of employment that, during the term of service contractéd for, the employer should have the patronage of all the customers which the employee could personally control.

Whether the one or the other finding of fact should be made, are questions for the consideration of the jury.

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

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

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


text:
    William H. Arnoux, Respondent, v. Amy C. Phyfe and Others, Appellants, Impleaded with Others.

      Mortgage foreclosure — evidence as to fraud and want of consideration.

    In an action brought to foreclose a mortgage the answer set up a want of consideration while the plaintiff claimed that the consideration was the satisfaction ef a judgment.

      Held, that it was competent for the defendants to prove upon the trial that such judgment had been fully paid prior to the giving of such mortgage.
    In an action brought to foreclose a mortgage the testimony of the defendants, that nothing was said to them or in their hearing about a mortgage at the time of the execution thereof, and that they knew nothing of it, if true, is sufficient to sustain a defense alleged in their answer that the mortgage was obtained through fraud.
    Appeal by the defendants, Amy C. Phyfe and others, from a judgment of foreclosure and sale of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of February, 1895, upon the decision of the court rendered after a trial at the New York Special Term.

      Henry B. Johnson and Joseph N. Tuttle, for the appellants.

      C. N. Bovee, Jr., for the respondent.
   Parker, J.:

It seems to us that the appellants are clearly right in their assertion that the court excluded evidence which they were entitled to have considered in passing upon the issue presented by the pleadings.

The issues raised by the answer were, that the mortgage was never executed; was without consideration, and obtained through the fraud of the plaintiff. It was proved that the mortgage was executed by the mortgagor, but whether there was a consideration for the mortgage and whether it was procured through fraud, there was conflicting evidence.

The learned trial judge, having had before him all of the parties and the witnesses, reached the conclusion that the consideration was ample, and that there was no fraud, the bond and mortgage instead having been executed with full knowledge on the part of the person executing it and all others interested.

If all of the material and relevant testimony^ offered by the defendants had been received, we would then be called ujDon to say whether the determinations of fact have such support in the evidence as entitle them to stand. As we think it very clear, however, that all of the evidence was not received which should have been by the court bearing upon such questions, a discussion of them is neither called for nor pi’oper.

The bearing of the evidence excluded will be readily appreciated from a brief statement of the principal facts affecting the issues.

William Campbell died in April, 1888, leaving a will by which he devised the property 'covered by this mortgage to his executors in trust, the income andju'ofits during the life of testator’s wife to be used by the executors in maintaining and carrying on his household and supporting his family as it then existed. The executors were further empowered to sell and dispose of any of ¡the testator’s real estate upon such terms as they should deem best.

The executors desired to raise $14,000 upon the property covered by this mortgage, to be used for purposes connected with the estate, and they were advised that they had not the power under the will to mortgage the property for any such purpose, but did have full authority to sell it. So a relative, this defendant Amy C. Phyfe, consented to appear in the role of a purchaser from the executors, and to thereafter execute a bond and mortgage for the amount of the loan, which plaintiff had agreed to procure for them from one of his clients, and then to reconvey the property to the executors.

A search was made under the direction of the person in charge of the real estate department in plaintiff’s office, who, as well, prepared the deed and bond and mortgage, and all other papers executed or prepared for the purpose of passing title, giving bonds and mortgages and revesting the executors with title.

There were two bonds and mortgages, however, executed by the grantee at about the same moment of time, one to Miss Morss for $14,000 for a loan of like amount made, and the other to this plaintiff for $15,153.

The alleged consideration for the latter mortgage was the payment by the plaintiff to the Chemical National Bank of a judgment, in form against "William Campbell, for a sum which, with interest added, equaled the face of the mortgage. The plaintiff and Mr. Foster, who prepared the papers, testified that the execution of this mortgage was talked about and understood as fully by all the parties present as was the execution of the mortgage to Miss Morss. On the other hand, Amy C. Phyfe, this mortgagor, testified that she never heard of any such mortgage; that the papers were laid down before her for signature by Mr. Foster, and she signed them without inquiry, and she was corroborated by her father, John D. Phyfe, Joseph Campbell and Martha Campbell, who were also present, the two last named being executors of the will of William Campbell. '

As affecting the question of consideration, it was proved that the plaintiff had taken an assignment from the Chemical National Bank of the so-called judgment against W illiam Campbell. The judgment is thus referred to because it was not in fact entered until after Campbell’s death, when it was entered as if he were living. The defendants, through questions put to various witnesses, offered to prove that the note indorsed by William Campbell, and guaranteed by this plaintiff, was made by Phyfe & Campbell to enable them to obtain money to be used in completing the Plaza Hotel, in which William Campbell had no interest whatever, his relation to the makers being that of an accommodation indorser. This was followed by an attempt to show that this plaintiff was a partner in the venture of Phyfe & Campbell, and to that end a writing signed by them and the plaintiff was offered in evidence and excluded. By questions asked of the plaintiff while under cross-examination it was attempted to show that he had an interest in the venture which absorbed the moneys obtained from the note which Campbell indorsed for the accommodation of the firm. This in turn was followed by an attempt to prove that a settlement was had with the plaintiff after the judgment was entered, and before the making of this mortgage, by which there was conveyed to him certain property on Ninety-eighth street in satisfaction of his claim under this judg-. ment and other claims. This will more clearly appear from the following questions which were asked of John I). Phyfe, all of which were objected to and excluded by the court, the defendants excepting : Q. You have heard the statement with regard to some money obtained — a loan obtained from the Chemical National Bank — have you ? A. I have heard part of it. Q. Who obtained that money ? * * * Q. Did you make any arrangement with 'Mr. Arnoux with regard to the procuring of that money before it was procured ? * * * Q. Were you also the party who was building the property in 98th street subsequent to this occasion ? * * Q. Did you make any arrangement with Judge Arnoux for the payment of the judgment after it was transferred to him by the Chemical Bank ? * * * Q. What did you agree to pay him in satisfaction of that judgment? * * * Q. Did you agree to give him two of the houses in 98th street in payment of his claim, including his claim against the estate of William Campbell? * * * Q. State whether, after that agreement ivas made and in pursuance of that, you procured the transfer of the title to that property in 98th street to Judge Arnoux in satisfaction of that agreement ? ”

We take from the record certain questions tending in the same direction which were asked of Jane Phyfe, and excluded by the court, under plaintiff’s objection, and to which defendants took exceptions : “ I reside at No. 249 Lexington avenue, Brooklyn. I am a daughter of William Campbell, deceased, formerly of 62 South Fifth avenue, and sister of these executors. Q. Did you ever have the title to the 98th street property that has been testified to ; did you ever make a deed of that property ? * * * Q. Did you ever have a conversation with the.plain tiff, William H. Arnoux, as to making a deed of 98th street property ? * * * Q. Was anything said by Judge Arnoux to you in regard to taking the property in 98th street in payment of a judgment of the Chemical Bank, which had been assigned to him, or any portion of it ? * * * Q. What was that statement ? * * * Q. Did you in pursuance of that conversation convey that property to Judge Arnoux ? * * * Q. Was that conveyance made prior to the 10th of June, 1892?”

It may well be that the witnesses would not have testified as the questions indicate, but as they were not permitted to answer, because of plaintiff’s objection, we can only consider whether the defendants were entitled to make proof of the character called for by the inquiries.

That they were entitled to is clear. The answer put in issue the consideration for the mortgage, and if the fact was that, prior to the date when the mortgage was executed the plaintiff had received the Ninety-eighth street property in full payment of the judgment, and also claims against William Campbell, then there was no consideration whatever for this mortgage.

The defendants were also entitled to have this evidence considered by the court upon the question of fraud. The plaintiff, on his cross-examination, was asked what became of the proceeds of this note; whether he was interested in the partnership which constructed the Plaza Hotel, and further: “ Q. Did you receive any collateral or securities for your guarantee of those notes or either of them? * * * Q. Did you receive a conveyance of property in Pennsylvania at the time of your guarantee and as a consideration for it?”

If the testimony of the Phyfes and Campbells was true, that nothing was said to them or in their hearing about this mortgage at the time of its execution, and that they knew nothing of it, then the defense pleaded would have been established. But the court found that it was not true, that they knew all about it and that the bond and mortgage were executed with a full understanding of the situation.

Whatever there was of corroborative evidence upon that issue, therefore, the defendants were entitled to. Would it not have corroborated them to some extent to have proved that the plaintiff had been paid in full? Do parties interested as executors and beneficiaries usually give mortgages upon the property with the management of which they are charged, or in which they are beneficially interested, without getting anything in return ? Is that the usual and ordinary course of human action ? If not, then the silence of these parties when, executing a mortgage constituting a gratuity equal almost to the value of the property over and above the first mortgage, tended strongly to corroborate their testimony that they had no intention of doing it, and did not know that it was being-done.

It may be that the fact was not as defendants attempted to prove, but we must assume otherwise, and, so assuming, the conclusion reached seems to be required.

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

Van Brunt, P. J., and Follett, J., concurred.

Judgment reversed, new trial ordered, costs to appellants to abide event.


author: Follett, J.:

text:
    Mary B. O'Reilly, as Administratrix, etc., of Terence C. O'Reilly, Deceased, Respondent, v. Utah, Nevada and California Stage Company, Appellant.

      Damages — death caused by negligence — contributory negligence — charge in respect thereto— Code of Civil Procedure, §§ 1908, 1904' — New York Constitution, a/i't. 1, § 18 — when Constitutions and statutes will be construed to operate prospectively— burden of establishing a retroactive effect.

    Upon tlie trial oí an action brought to recover damages, resulting from the death of the plaintiff’s intestate by reason of the alleged negligence of the defendant, it was shown that the plaintiff’s intestate met his death by being run over by a wagon of the defendant while attempting to cross a city street. The court charged upon the question of contributory negligence: " It does not arise at all in case Mr. O’Reilly (the plaintiff’s intestate) crossed a clear street, after looking up and down, with ample opportunity to pass in front of this van, if he had such ample opportunity, and then, by reason of the impetuous driving of the van driver, was struck before he could reach the other sidewalk, when he might have reached it but for the accelerated speed of the horses. There is no contributory negligence in a case under those circumstances. But if you find that such was not the fact, and that he had reached the other side, and that he stepped down right in front of this moving van, which was only going at a walk, and thus slipped or fell, or in some way got under the vehicle, then there ■would be contributory negligence, and the defendant would be entitled to a verdict.”
    The court further said : “I will leave the fact to the jury to determine whether that was so or not, whether he did have that clear space, whether there was an opportunity to pass; I do not say there was; I leave.it to the-jury to say.”
    The court also charged:
    “ IÍ the negligence of the deceased contributed in any degree to the injuries complained of, this plaintiff cannot recover. The burden of proof is upon the plaintiff to satisfy the jury, by a preponderance of evidence, that there was no contributory negligence on the part of the deceased.”
    “If the view was unobstructed and the wagon in plain sight at the time he (decedent) started to cross the street, it is evidence of negligence if the deceased, O’Reilly, did not see it approaching. If the view was unobstructed and the wagon in plain sight at the time he started to cross the street, he was bound to look, and if the jury should find that he did not look both ways they may take that into consideration on the subject of negligence.”
    “ It was the duty of the deceased in crossing the street to use his eyes and ears to avoid danger, if possible, and he had no right to proceed in such a manner that collision could not be avoided, and take the chances of getting across the street without injury.”
    “ If the jury shall find that it was negligence in the deceased to attempt to cross the street when the vehicle was approaching, in the manner shown by the testimony, the plaintiff cannot recover.”
    That if the decedent crossed without looking to either side of him, the plaintiff could not recover, neither could the plaintiff recover if the jury found there was an unobstructed view of the approaching wagon and decedent did not observe it until within ten feet of him, and then continued to cross in front of the horses, moving at a rapid speed.

      Held, that, construing the charge as an entirety, the rule of contributory negligence was charged most favorably to the defendant, and that the defendant had no just ground for complaint in respect thereto.
    Sections 1903 and 1904 of the Code of Civil Procedure do not simply provide a new remedy, but create a new right and a new liability, and such statutory provisions are part of the substantive law of the State of New York.
    Statutes affecting remedies or rules of procedure for enforcing rights are declared to be retroactive on grounds which would be deemed insufficient to give a retroactive effect to statutes enlarging or restricting substantive rights.
    The effect of section 18 of article 1 of the Constitution of the State of New York of 1894 is twofold; it ijnposes a greater liability on persons wrongfully or unlawfully causing the death of others, and it confers additional benefits on persons in whose favor a right of action is given for such wrongs. Such section is not retroactive, nor does it enlarge the existing right of the personal representative of a person killed by the negligence of another to recover damages therefor.
    Constitutions as well as statutes are construed to operate prospective^ only, unless on the face of the instrument or enactment the contrary intention is manifest beyond reasonable question, and the rule that a law is never to have a retroactive effect, unless its express letter or clearly manifest intention requires that it should have such effect, is applicable to constitutional provisions. If all its language can be satisfied by giving it prospective operation it should have such operation only.
    Whoever asserts that a Constitution or statute has a retroactive effect must bear the burden of proving it.
    Appeal by the defendant, the Utah, Nevada and California Stage Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of February, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 6th day of February, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Charles C. Nadal, for the appellant.

      Sumner B. Stiles, for the respondent.
   Follett, J.:

This action was begun July 19, 1894, to recover damages arising from the death of the plaintiff’s intestate, caused, it is alleged, by the negligence of an employee of the defendant, a corporation organized under the laws of the Territory of Utah and engaged in carrying mails to and from the post office in the city of New York. On January 8,1894, defendant’s mail wagon or van, weighing about 4,200 pounds and carrying 5,000 pounds of mail matter, was being driven along Park row, between North William street and the Brooklyn bridge. Terence C. O’Reilly, while attempting to cross the street in front of the wagon, was run over by it and so seriously injured that he died January 10, 1894, from the effects of the injury. The evidence contained in the record is sufficient to support the verdict of the jury that the negligence of the defendant’s driver caused the accident, and that the decedent did not by his own negligence contribute thereto. Indeed, the learned counsel for the defendant did not contend at the bar of this court, nor does he argue in his brief, that these questions were determined without or contrary to the weight of evidence. We are asked to consider but two questions as grounds for reversing the judgment: (1) An exception to the charge of the court on the question of contributory negligence, and (2) an exception to the instruction that the jury might award more than $5,000 damages.

Upon the question of contributory negligence the court charged: “ It does not arise at all, in case JVIr. O’Reilly crossed a clear street, after looking up and down, with ample opportunity to pass in front of this van, if he had suclr ample opportunity, and then, by reason of the impetuous driving of the van driver, was struck before he could reach the other sidewalk, when he might have reached it but for the accelerated speed of the horses. There is no contributory negligence in a case under those circumstances. But if you find that such was not the fact, and that he had reached the other side, and that he stepped down right in front of this moving van, which was only going at a walk, and thus slipped or fell, or in some way got under the vehicle, then there would be contributory negligence, and the defendant would be entitled to a verdict.”

To this instruction the defendant took the following exception :

“ Defendant’s Counsel.— I would like to take an exception to that part of the charge in which you said the question of contributory negligence would not and does’not arise in this case if when the deceased started across the' street from the westerly side he had a clear street and unobstructed by the van, and an opportunity to get across.
“ The Court.— I will leave the fact to the jury to áetermine whether that was so or not, whether he did have that clear space, whether there was an opportunity to pass; I do not say there was; I leave it to the jury to say.
“Defendant’s Counsel. — It is not on that point I take my exception; it is on the other, that in that case there would be no contributory negligence.”

It is not asserted that the decedent was negligent in any respect, except in the time and maimer of attempting to cross the street. By this instruction the jury was charged that if they found as a fact that the street was so clear that O’Reilly had ample opportunity to cross in front of the van, and attempted to do so after ascertaining the fact, and was run over by the impetuous driving of the defendant’s employee, then no contributory negligence was shown. The issue as to the condition of the street and the manner in which the decedent attempted to cross it were left as questions of fact for the jury, and whether or not he by his own negligence contributed to cause the accident depended upon how these facts were found.

The court further charged upon this question :

(3) If the negligence of the deceased contributed in any degree to the injuries complained of, this plaintiff cannot recover.”
(4) The burden of proof is upon the plaintiff to satisfy the jury by a preponderance of evidence that there was no contributory negligence on the part of the deceased.”
(9) If the view was unobstructed and the wagon in plain sight at the time he (decedent) started to cross the street, it is evidence of negligence if the deceased, O’Reilly, did not see it approaching.” If the view was unobstructed and the wagon in plain sight at the time he started to cross the street, he was bound to look, and if the jury should find that he did not look both ways, they may take that into consideration on the subject of negligence.”
“ (18) It was the duty of the deceased in crossing the street to use his eyes and ears to avoid danger, if possible, and he had no right to proceed in such a manner that collision could not be avoided, and take the chances of getting across the street without, injury.”
(19) If the jury shall find that it was negligence in the deceased to attempt to cross the street when the vehicle was approaching in the manner shown by the testimony, the plaintiff cannot recover.”

In addition to these instructions, the court charged (28th proposition) that if the'decedent crossed without looking to either side of him, the plaintiff could not recover, and by the 29th proposition that if the jury found there was an unobstructed view of the approaching wagon and decedent did not observe it until within ten feet of him and then continued to cross in front of the horses, moving at a. rapid speed, it was negligence and the plaintiff could not recover.

Whether the facts existed which defendant asserted were evidence of contributory negligence was left for the determination of the jury, and the rule of law applicable to the facts which it should find to have existed was correctly stated. Construing the charge as an entirety, the rule of contributory negligence was charged most favorably to the defendant, and it lias no just ground for complaint in this respect.

By the complaint as originally framed, a judgment for $5,000 damages was demanded. At the close of the evidence, the plaintiff moved that the complaint be amended so as to increase the demand to $25,000, which motion was granted, and the defendant excepted. The court instructed the jury that it might award such pecuniary damages as the widow and the next of 'kin had sustained by reason of the death of the intestate, not exceeding $25,000. To the instruction that the jury might award more than $5,000 damages the defendant excepted. By these exceptions the question is presented whether the plaintiff’s right to recover damages was enlarged by the 18th section of the first article of the Constitution, adopted in November, 1894, which took effect January 1, 1895, and provides:

Sec. 18. The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation.”

This question must be resolved by determining whether the constitutional provision is retroactive and affected rights and liabilities existing prior to the time when it took effect.

Before considering the legal rules applicable to the case it will be well to bring to mind the nature of the right sought to be euforced in this action. The statutes of this State do not continue the right of action existing at common law in favor of a person negligently or wrongfully injured to his personal representatives, but they create a new right unknown to the common law, to recover a" fair and just compensation for the pecuniary injuries, resulting from the decedent’s death,” not exceeding $5,000, exclusively for the benefit of the decedent’s husband or wife and next of kin.” (Code Civ. Proc. §§ 1903, 1904; Whitford v. Panama Railroad Company, 23 N. Y. 465.) Upon the death of the intestate his administratrix had a fixed right to recover the damages sustained by his wife or next of kin by reason of his death, and the statute giving that right limited the defendant’s liability to $5,000. Both litigants had rights and liabilities created and limited by those statutory provisions. By these statutes a new remedy was not simply provided, but a new right and liability were created, and the statutory provision became part of the substantive law of the State. Statutes affecting remedies, or rules of procedure for enforcing rights, are declared to be retroactive on grounds which would be deemed quite insufficient to give a retroactive effect to statutes enlarging or restricting substantive rights, and the cases arising under such statutes are not precisely in point, and need not be specially considered.

The effect of the constitutional provision above quoted is twofold ; it imposes a greater liability on persons wrongfully or unlawfully causing the death of others, and confers additional benefits on persons in whose favor a right of action is given for such wrongs, and such provisions, whether constitutional or statutory, are seldom construed to have a retroactive effect, (Endlich on Interp. Stat. § 277 et seq., and cases cited.)

“A law is never to have retroactive effect unless its express letter or clearly manifested intention requires that it should have such effect. If all its language can be satisfied by giving it prospective operation, it should have such operation only.” (N. Y. & Oswego Midland R. R. Co. v. Van Horn, 57 N. Y. 473 ; Endlich Interp. Stat. § 271 et seq. ; Potter’s Dwarris, 162; Sedg. Stat. & Const. L. [2d ed.] 160.) This rule is as applicable to constitutional as to statutory provisions. Constitutions as well as statutes are construed to operate prospectively only, unless on the face of the instrument or enactment the contrary intention is manifest beyond reasonable question.” (Shreveport v. Cole, 129 U. S. 36 ; Cooley Const. Lim. [3d ed.] 62.)

These rules have been so long and firmly established in all enlightened States that they need not bo supported by the citation of precedents.

There is no express provision in the Constitution that the section quoted shall affect rights or liabilities arising out of past transactions, nor is there a hint that the section was intended to have a retroactive effect. No circumstances existing at the time the section was formulated or adopted have been called to our attention, nor do we know of any which would justify an inference that it was intended that the provision should have a retroactive effect.

Clearly the language of the section can be fully satisfied by giving it a prospective operation, and, so far as we know, every rule for determining how statutes shall operate, whether retrospectively or prospectively, will be observed and enforced by that construction.

Whoever asserts that a Constitution or statute has a retroactive effect must bear the burden of proving it, and we think the plaintiff has failed to sustain her contention, either by precedent or upon principle.

The evils which flow from constitutional or statutory provisions, enlarging or diminishing rights or liabilities arising out of past transactions, have been so often and forcibly stated in judicial decisions and by text writers, and are so well understood, that it would be a work of supererogation to-restate them. Retroactive legislation, affecting crimes and penalties — ex post facto laws — and the obligations of contracts, is prohibited by the Federal Constitution, and -the evils arising from such legislation, affecting other subjects, are as great, except that the interests are less numerous, and, perhaps, not so important.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event, unless the plaintiff stipulates to reduce the verdict and the judgment entered thereon to $5,000 damages, with interest thereon from the date of the death of the decedent to the date of the entry of the judgment, in which case the judgment should be modified in accordance therewith, and, as modified, affirmed, without costs to either party.

Van Brunt, P. J., and Parker, J., concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event, unless plaintiff stipulates to reduce the verdict as directed in opinion, in which event judgment modified in accordance therewith and affirmed as modified, without costs.