author: O’Brien, J.: Van Brunt, P. J.:

text:
    PATRICK LENNON, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — injury of a boy eight years old by am, engine — an attempt to erossin front of a train — a contradictory statement — credibility of a witness.

    An action was brought by a father to recover damages for injuries sustained by his son, a boy eight years old, who was injured in crossing the tracks of a railroad, in the center of a city street 100 feet wide, by an engine moving rapidly and, as he alleged, not ringing a bell, the boy testified that, at the curb-stone, before starting across the street, he looked and could see a distance#of fifty-five feet; that he listened and saw and heard nothing; that he ran a distance of twenty-five feet, and had about crossed the second rail of the track when he was struck; that at the time there was a light rain, and the atmosphere was foggy. It did not appear that he looked or listened after starting to run.
    The railroad company asked the court to charge that if the boy looked and saw the train, and started to cross ahead of it, the father could not recover, whether the boy started to cross, takifig the risk of crossing iu front of the train, or omitted to be governed by the fact that he had seen it, which the court refused to charge.
    Upon an appeal from a verdict in favor of the father:
    Held, that the defendant was entitled to the charge requested.
    It appeared that the boy had before the trial gone to the office of the attorney for the defendant, and had there made a statement which had been taken down by a stenographer. His statement of the facts made upon the trial differed from this, and his attention was called to the discrepancy.

      Held, that the defendant was entitled to"a charge that if the jury believed the boy had before the trial made another statement of the facts, they must take this into consideration in determining the credit to be given to his testimony.

      Semble, that it was negligence in the boy not to look and listen when he started to run across the tracks.
    Appeal by the defendant, the New York Central and Hudson River Railroad Company, from an order of the Supreme Court, entered, after a trial at the New York Circuit before the court and a jury, in the office of the clerk of the city and county of New York on the 22d day of December, 1891,' denying a motion made upon the minutes to set aside a verdict for the plaintiff for $5,000 and for a new trial.

      D. W. Tern's, for the appellant.

      L. E. Ghittenden, for the respondent.
   O’Brien, J.:

This action was brought by plaintiff to recover damages for the loss of services of his infant son by reason of personal injuries alleged to have been negligently inflicted by defendant at or near Forty-seventh street and Eleventh avenue, in the city of New York, on May 15, 1886.

Plaintiff’s evidence tended to show that he resided on the westerly side of Eleventh avenue, between Forty-eight and Forty-ninth streets ; that the avenue at this point, and north and south of it, is 100 feet «wide and straight, and defendant’s trains run in its center on four rails at grade. It is paved like a city street; on both sides are tenement-houses, and streets sixty feet wide cross it, upon some of which streets are street railroad tracks which cross the tracks of the defendant’s road at grade. The son, who resided with plaintiff, was eight years old at the time of the accident, healthy and of ordinary intelligence, and for four years prior to the accident had crossed the avenue and defendant’s tracks three or four times daily going to and from school, and had seen a great many of defendant’s trains, going up and down the avenue. The son testified that, on the day mentioned, in going to call a doctor, he crossed Eleventh avenue, going down the westerly side to Forty-seventh street, crossed Forty-seventh street, and reached curb-stone preparatory to crossing the avenue at a point in front of a grocery store fifteen feet southerly from Forty-seventh street crossing. “At curb-stone he tarried a. moment, looked up and down the avenue, listened, saw and heard nothing, and then started to go across tracks. He ran straight across for twenty-five feet, and had about cleared the second rail he came to when he was struck by one of defendant’s locomotives south bound, which was running down grade at a speed, faster than a horse can trot, without ringing a bell or blowing a whistle.” Plaintiff also-introduced evidence tending to show that on that day there was a light rain, and that at the time of the accident the atmosphere wras foggy or hazy. As to the distance that the boy could see up the avenue, he testified that his vision was unobstructed for a distance northward of about fifty-five feet, which would be about opposite a junk shop, where there were standing about ten small two-wheeled wagons,"such as are used by junk dealers.

On the part of the defendant the evidence tended to show that the injuries resulted from an attempt of the boy to board one of the cars of the defendant’s train while in motion down the avenue, after having been warned against the attempt.

The plaintiff, in order to recover, was bound to show not only that his son’s injuries resulted from the negligence of the defendant, but also that the son himself was free from any negligence which contributed to the injuries. As to the first, the testimony adduced, tending to show that, though running through a public thoroughfare at a reasonably high rate of speed, no bell was rung or whistle sounded, would be sufficient to justify the submission of this question to the jury.

Upon the other proposition of establishing that his son was free from any negligence that contributed to his injuries the testimony was far from satisfactory; and, in view of the law as laid down in Tucker v. New York Central and Hudson River Railroad Company (124 N. Y., 309), a serious question was presented whether it was not the duty of the court to dismiss the complaint for failure to sustain the burden, with respect to this proposition, which was placed upon the plaintiff. In that case it was said: “ The law requires a traveler before crossing a railroad track on a public highway to look and listen for the approach of trains. If he omit to do so and suffers injury while crossing he cannot recover because of such omission. That which it is his duty to do he * * * must .in an action to recover for damages sustained prove was done, or at .least must prove facts from which inference can reasonably be drawn •■that he performed his duty in that respect. It will not be presumed that he looked. It must be proven. The plaintiff attempted to meet these requirements by the evidence of a witness who testified that before the intestate crossed the track, in the doing of which he was struck by the locomotive and killed, he stopped in the center of the switch-track, eleven feet from the north rail of the track iqion which the locomotive was running, and shifted the bag which he was carrying from one shoulder -to the other, resting it upon the bumper of a car standing upon the track as he did so, and that at this time his face was turned in the direction of the approaching engine. He then passed on'in a southerly direction for a distance of about fourteen feet when he was struck. The witness further testified that after changing the bag from one shoulder to the other lie did not again turn his head to the left, as it would have been neces■sary for him to do in order to see the approaching locomotive. It is urged that, inasmuch as it appears that his face was turned in the direction from whence the locomotive came, that a jury could be permitted to find that he did look and. thus observed that measure ■of care and caution which the situation imposed. "We are unable to ¡agree with that contention. * * * But if the inference was permissible that he looked at the moment of changing the bag, it ■does not meet the requirements of the case. He had still six tracks to cross and was then eleven feet from the south rail of the first track. To look then and not again, to go on from that point without observing the further precaution of watching for the approach of trains upon tracks almost constantly in use was not a proper observance of that care which it was his duty to exercise.” (Cases cited.)

In that case, which is in many other respects analogous to this, the reason assigned for not seeing the approaching train was the fact that it was windy and snowing; while here the reason assigned is a hazy and foggy atmosphere. The evidence here tended to show that the boy, while on the sidewalk and preparatory to crossing, looked up and down and listened for approaching trains. Though we have the width of the avenue given as one hundred feet, the distance-from the curb-stone to the most westerly track, which was the portion of the street traversed by the boy before reaching the first-track is not given, but we know, from the circumstance that the defendant company had but two tracks of four rails which were placed in the center of the avenue, that this space was greater than, eleven feet.

In the Tucker case, as we have seen, although there was evidence to show that when within eleven feet from the track the person injured looked, it was held that this was not a sufficient discharge of the obligation which requires of a traveler on the highway, before 'crossing a track, to look and listen for the approach of trains. And to repeat what is stated in that case respecting what was done by the person injured when but eleven feet from the track,. “ to look then and not again * * * was not a proper observance of that care which it was his duty to exercise.”

It is unnecessary, however, for us, in view of other exceptions taken to rulings made, which we regard as good, to place our reversal upon this ground. But we have alluded to this feature of the case in order to emphasize one of the exceptions referred to which the defendant urges upon this appeal. The learned trial judge refused to charge the defendant’s seventh request: “ That it was the duty of the boy 'William Lennon to look in the direction from which a train was to be expected on the track before entering upon the track; and if by so looking he could have seen the train and stopped, and avoided the accident, and lie- omitted so to look, the plaintiff cannot recover.”

It is true that the court had charged that: “ It was the duty of William Lennon, when he was about to cross the track, to take means of ascertaining whether there was or was not a train approaching on that track, and if he neglected to take some means, the means that you would expect from and of a child of his age, and if he was injured by reason of his neglect to take such means, then his father cannot recover in this action. He says he did take such means. He says that, as he was standing on the track a short distance south of the southerly line of Forty-sixth street and Eleventh avenue, he looked north and south to see whether there was any train approaching, and that he saw no train approaching. He says that after he left the sidewalk, and before he reached the track, he listened and heard no ringing of the bell.”

It will thus be seen that the defendant’s attorney, by exception to the charge, again raised the point presented by the seventh request, that the looking and listening on the sidewalk, and thereafter neglecting to again do both while traversing the space between the sidewalk and the rail, was not a compliance -with the duty resting upon him.

Were this the only refusal to charge requests to which the defendant was entitled we should not disturb the verdict, because, had the court’s attention been more specifically directed to the distinction which the defendant’s counsel sought to make between the broader proposition contained in his request as to the necessity of using all his senses, as contrasted with the more limited exposition of the law given by the court in its charge, that the boy’s duty might be discharged by listening simply, it would, no doubt, have been corrected. The defendant, however, asked the court to charge that: “ If the boy, William Lennon, looked and saw the train and started to cross ahead of it, the plaintiff cannot recover, whether the boy, William Lennon, started to cross, taking the risk of crossing in front of the train, or omitted to be governed by the fact that he had seen it.” This was refused. As there was no passage in the charge covering the proposition embraced in' this request, and as, in one view to be taken of the evidence, it was one which the jury might consider, the defendant was entitled to have them instructed upon this point, and the refusal so to instruct them, we think, was error.

In addition to this, it appears that during the trial evidence was offered to show that, in material respects, the testimony of the boy given upon this trial was different from his version upon the occasion of his visit some time prior thereto to the office of the defendant’s attorney, where it was taken by a stenographer and used upon the trial. The boy’s attention was called to the discrepancy thus appearing between his two statements relating and leading up to his injuries, and he was permitted to explain, which in the main resulted in his denial of the making of the first statement in the office of defendant’s attorney. In his charge the court in no way referred to this circumstance, and the defendant thereupon requested the court to charge:

“ That, if the jury believe that the boy, William Lennon, has heretofore made a statement in conflict with his testimony as to material features of the accident and its circumstances, they must take that into consideration in determining what credit they will give to his testimony, and have the right to disregard his testimony altogether.” The court made answer: “ I refuse to charge, except as I have charged.” As there was no reference or allusion in the charge in any way to the discrepancy thus appearing, and as the request contained a correct statement of the effect which the jury should give to such discrepancies as bearing upon the credibility of the witness, there was no reasonable ground for refusal, and, the defendant having the right thereto, such refusal was error.

Besides these, many questions in respect to the admissibility of evidence have been pressed upon our attention, but in view of what we regard as errors in the court’s presentation of the case to the jury, it is unnecessary to consider them, the latter, in our opinion, requiring that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Van Brunt, P. J.:

I am of the opinion that complaint should have been dismissed. I concur in reversal and new trial.

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


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    JUAN LUIS DAMMERT and Others, as Ancillary Executors of JOSE SEVILLA, Deceased, Respondents, v. WILLIAM HENRY OSBORN and Others, Appellants, Impleaded with Others, Dependants.

      Testator — trusts valid at the domicile of a foreign testator, hut void under the laws of New York — the assets should he remitted to the foreign country for distribution.

    José Sevilla, a resident of Peru, died at Lima, Peru, leaving a will by which he gave $500,000, or securities of that value, to found in New York city an institution to be known as the Sevilla Home for Children. Much of his personal estate was, at the time of his death, in New York city, where ancillary letters were issued under the Peruvian will. Having retained sufficient securities to satisfy the testator’s project for the establishment of a home, the ancillary executors brought an action for the construction of the will.
    The provisions of the will relative to the Sevilla Home were void by the laws of New York, but valid by the laws of Peru, and the trial court declined to determine the title to the fund, or aid in the enforcement of the trust, and directed the ancillary executors to remit the fund to Peru in order that its courts might determine in what manner and to whom it Should be distributed.

      Held, that the judgment was proper.

      JDespard v. -Churchill (53 N. Y., 198) followed.
    That the question whether the courts of this State should decree distribution of assets collected in the State under ancillary letters granted here, or should remit the assets to the courts of the testator’s domicile, was not a question of jurisdiction, but was one of judicial discretion.
    That, in the case at bar, this discretion had not been abused, especially as certain clauses of the will of the testator seemed to contemplate that the New York assets should be remitted to Peru for distribution.
    That the reluctance, of our courts to administer upon assets of a testator having a foreign domicile, where such admihistration would have the effect of executing a trust invalid by our laws, furnished a further reason why the assets in question should be remitted to the courts of the testator’s domicile.

      Cross v. United States Th'ust Company (131 N. Y., 330) distinguished.
    Appeal by the defendants, William Henry Osborne and others, from a judgment of the Supreme Court, entered, after a trial before the New York Speeial Term, in the office of the clerk of the city and county of New York on the 17th day of March, 1892, which, among other things, decided :
    I. That the provisions -made by the will of the testator for the Sevilla Home for Children are void.

      II. That the bequest of $500,000, in shares of that nominal value, did not vest in any ascertained persons or corporation.
    III. That the persons named as philanthropic trustees in the will of testator are not entitled to receive the fund of $500,000, in shares of that nominal value, set apart as stated in the complaint, nor are any of them so entitled.
    IY. That the provisions of the will of the testator for the Sevilla Home for Children are within the provisions of the statutes of this State prohibiting the creation of perpetuities and are void.
    Y. That the provisions of the will of testator do not constitute a bequest, to the defendant, the Sevilla Home for Children.
    YI. That the corporation known as the Sevilla Home for Children, defendant herein, is not entitled to receive the legacy bequeathed to the Sevilla Home for Children.
    YII. That the subsequent creation of the defendant corporation did not create any rights in its favor to the fund in question.
    YIII. That the ancillary executors account for the fund in question to the executors and appointed heirs in Peru and pay over the same, less the necessary deductions for costs and expenses, to said executors and heirs in due course of administration.

      O. C. Marshall and William G. Choate, for the appellants Osborn and others, and the Sevilla Home.

      Dmid MilUhen, Jr., for the Sociedad de Beneficiencia.

      Frederic R. Cmodert, for the respondents.
   O’Brien, J.:

José Sevilla, a resident of Peru, died at Lima, in that country, in December, 1886, leaving a will, whereby, among other things, he gave $500,000, or securities of that value at par, to found a home in the city of New York for orphan girls, to be known as the Sevilla Home for Children. The testator left an estate consisting largely of personal property, much of which, at the time of his death, was in the city of New York. The will of the testator was duly proved at Lima, Peru, and was subsequently recorded in the office of the surrogate of New York county under the order of said surrogate, and under the same order the executors were appointed ancillary executors of said will. They retained, out of the personal estate collected by them in New York, securities sufficient to cover tbe bequest in favor of .the home, and then brought this action for a construction of the will, and for the decree of the court as to who was entitled to said fund or securities, and to whom they should make payment of the same.

The learned judge below correctly held that the provisions of the will relating to the establishment of the Sevilla Home contravene our statute against perpetuities, and was invalid for the further reason that, at the time of the death of the testator, the persons upon whom the trust was to devolve were unascertained. He also correctly held that the provisions of the will relating to the home were valid under the laws of Peru. The question, therefore, presented was as to whether or not the courts of this State would determine the title to the fund primarily intended by the testator to be devoted to the establishment of the home. His conclusion was that this court should not aid in enforcing the trust, but decreed that the ancillary executors remit the fund to Peru in order that the courts of that republic may determine in what manner and to whom it shall be distributed.

In this determination he was controlled by the case of Despard v. Churchill (53 N. Y., 198), to which he referred and from which he quoted, which to him and to us seems to be a binding and controlling authority. A reference to the facts in that case will show how nearly it approaches-to the'question here presented. There a resident of California died seized of certain leasehold estates for years in lands situate in this State, and leaving a last will and testament void in its material provisions under the statutes of this State, but valid by the laws of California. A portion of the executors named in the will were residents of this State and these were charged with the care and administration of the property in this State. The learned judge writing the opinion in that case said :

“ The testator had his domicile in the State of California. He made his will there. No question is made but that it is in all of its provisions valid by the law of that State. It, however, by its terms disposes of certain property in this State and by provisions which are invalid here, inasmuch as' they rim counter to our statute law. (1 R. S., 723, § 15; id., 773, § 1.) The statute law here referred to embodies the policy of this State in relation to perpetuities and accumulations. As this sovereignty will not uphold a devise or a bequest by one of its citizens in contravention of that policy it will not give its direct aid to sustain, enforce or administer here such a devise or bequest made by a citizen of another sovereignty. (See Chamberlain v. Chmnberlain, 43 N. Y., 424.) Yet it is no part of the policy of this State to interdict perpetuities or accumulations in another State. (Id., 434.)

■X' ■H- •$£

“ Personal property is subject to the W which governs the person of its owner as to its transmission by last will and testament; and this principle, though arising in the exercise of international comity, has become obligatory as a rule of decision by the courts. (Parsons v. Lyman, 20 N. Y., 103,) And, as a general rule, the distribution of personal property, wherever made, must be according to the law of the place of the testator’s domicile. (Harvey v. Richards, 1 Mason, 381-407.)

“ The cases are not uncommon in which a testamentary disposition made in a foreign jurisdiction has controlled the transmission of .personal property in this. Usually the administration of the estate has been committed by the will to citizens of that jurisdiction. They have acquired the possession and control of the property through voluntary payment or surrender, or by making probate of the will here have obtained ancillary letters testamentary, and under these have enforced collection or surrender. In such case, those charged with the administration are liable to account here for the assets collected by the authority granted here. It seems to have been generally held, that where there are domestic creditors of the estate payment of the debts may be decreed out of the assets. (Dawes v. Boylston, 9 Mass., 337; Richards v. Dutch, 8 id., 506; Harvey v. Richards, supra.) For other purposes, such as the payment of legacies and the distribution of the surplus to the next of kin, the courts in Massachusetts have held that the assets must be remitted to the place of the domicile. (See cases above cited.) But this has been questioned with great force and reason. (See Harvey v. Richards, supra) And the better rule is, that whether the courts of one State are to decree distribution. of the assets collected in it under auxiliary letters granted by them, or to remit the disposition thereof to the courts of the testator’s domicile, is not a question of jurisdiction, but of judicial discretion under the circumstances of the particular case. (Harvey v. Richards, supra; Parsons v. Lyman, supra) Nor does the fact that, by the will in this case, the testator appointed citizens of this State as executors, as well as citizens of the State of his domicile, and charged those here with the care and administration of the property here, alter the rule. In Harvey v. Richards, above cited, the defendant was appointed, in this country, administrator, with the will annexed of a testator domiciled in the East Indies, where the executors resided.

The question then arises, under the particular circumstances of this case, whether the assets in this State should not be remitted to the executors in the State of California to be administered, as they may be, in accordance with the directions of the will, under the laws of that State.

“As has been stated, the courts of this State may not directly aid in carrying out here a bequest which is in violation of its statute law, and contrary to a policy of' which it is tenacious. And yet they may not hold the bequest void, when it is valid by the law of the State by which the disposition of the property is to be governed. The one would be to transgress the written law of this State; the other would be to disregard an unwritten rule of law, well settled and of extensive and frequent application.”

It being, therefore, “not a question of jurisdiction,but of judicial discretion,” as to whether, under the circumstances of a particular case, the courts of one State will decree distribution of the assets, or remit the disposition thereof to the court of the testator’s domicile, it remains to be determined whether such discretion was wisely exercised in the present case.

We think, taking the various provisions of the will, that it was within the contemplation of the testator that his property outside of Peru should be remitted to that place for the purposes of administration. Thus, it was provided that the Sociedad de Beneficiencia de Lima should receive all the legacies of public interest, including the legacy for the establishment of the Sevilla Home, in order that the executors, in making payment of such public legacies, should not be called to deal with any other person or corporation than the said Sociedad. This latter society, however, is located in Peru; and whether we regard this provision as being inserted merely for the convenience of Peruvian executors, or as a direction as to the course to be pursued only in event of all the assets being found in Peru at the time of the testator’s death, it shows that he himself contemplated the scheme or plan of having the property administered in Peru through this association. In another part, provision is made for the payment of the expenses and a commission to such person as it should be necessary to send to the United States to make delivery of the gift to the Sevilla Home. This provision, to say the least, furnishes an argument in support of the view that it was the intention of the testator that his property should be administered upon, and the validity of the provisions of the will determined by the law and courts of Peru.

The reluctance, moreover, of the courts to administer upon the assets of a testator who, at his death, was a resident of a foreign domicile, particularly in a case where the carrying out of the intention of the testator would be to administer a trust invalid by the laws of our State, furnishes another reason why, in cases of doubt, the property should be transmitted to the foreign State. Ordinarily, it is no part of the duty of the courts of this State to construe wills of testators domiciled in foreign States, except as to provisions to be carried out in this State. And it will avoid confusion and conflict of jurisdiction, under such circumstances, to remit the property to the jurisdiction of the courts located in the domicile of the testator. This furnishes a reason why this court should not, as urged upon their attention by one of the appellants, proceed to determine the title to the fund intended for the home, and is a sufficient answer to the suggestion, even though we assumed another appellant’s position to be right, that the effect of so transmitting the fund will be to have the same sent back again and delivered to the corporation which it is claimed now has the legal right to receive the fund under the laws of this State.

It is urged that the case of Cross v. United States Trust Company (131 N. Y., 330), favors the contrary view, and appellants claim that that went to the extent of holding that, as to foreign wills creating trusts of personalty, there is no public policy of this State which forbids the administration of such property here, though the trusts would be invalid by statute in a New York will as violating the rule against perpetuities. In that case, however, Despard v. Churchill (supra), was analyzed and referred to witli approval. Apart from this, the distinction between Cross v. United States Trust Company and this case is a marked one. In that case it was sought to have a trust relating to personal property in this State which was valid by-the laws of the testator’s domicile, declared void because a like trust, if created here by a citizen of our own State would have been invalid. This action seeks to have our courts decree that a trust because valid under the laws of the testator’s domicile is equally valid here and should be carried out, though contravening our statutes.

The reason for remitting the subject to the testator’s domicile is thus stated by the learned judge writing the opinion in Cross v. United States Trust Company: “ This course was adopted not on the ground of policy, but because it was always the law in such cases to remit personal estate to the domicile of the owner in the exercise of a sound judicial discretion.”

We do not think that more need j>e added to what has been said in the opinion of the learned judge at Special Term; nor have we attempted to do more than to examine the record, and, in effect, adopt the reasons given by him to justify his conclusion and which we think should result in the affirmance of his decree by this court.

Judgment affirmed accordingly, with costs.

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

Judgment affirmed, with costs.


author: O’Brien, J.: Patterson, <J.:

text:
    JOSEPH A. IASIGI, Appellant, v. CLARA ROSENSTEIN, Respondent.

      Contract to deliver goods by a particular vessel — not performed, where pan't of the voyage is made in another vessel — evidence of a custom to transship goods, inadmissible.

    Upon the trial of an action brought to recover the price of 1,100 bags of Smvrna canary seed which Joseph A. Iasigi had contracted with Clara Rosenstein to ship in March, 1887, on the steamer “Aleppo,” from Turkey, it appeared that Rosenstein had refused to accept the seed upon the ground that, although the seed was shipped from Turkey by the steamer “Aleppo,” it, was conveyed by her only to Liverpool, where it was reshipped and brought to New York, the port of destination, by the steamer “ Aurania.”

      Upon an appeal by tbe plaintiff from a judgment dismissing' tbe complaint:

      Held, that a contract to deliver seed in New York by tlie steamer "Aleppo” was not performed by its delivery there through the steamer “ Aurania”
    That, as the contract was plain and unambiguous, evidence of an invariable custom to transship goods from Turkey for New York, at Liverpool, and that there was-no direct line from Turkey to New York, was inadmissible.
    That the fact that the defendant did not show any damages resulting from the change in the manner of shipment was not material.
    That the mode of shipment was not necessarily an immaterial accessory of the contract, and might have an important bearing, e. g., upon the question of the insurance of the cargo.
    Appeal by tbe plaintiff Joseph A. Iasigi from, a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe city and county of.New York on the 12th day of May, 1892, dismissing the complaint, with costs, after a trial at tbe New York Circuit before tbe court and a jury. <
    Upon tbe trial of tbe action, which was brought to recover the price of certain goods, it appeared that tbe contracts between tbe parties were made by a broker named George M. Black. It was admitted by tbe pleadings that Joseph'A. Iasigi did business under tbe name of Iasigi & Co., and that Clara Rosenstein did business under tbe name of C. Rosenstein & Co., and, further, that tbe contracts were as follows:
    “New York, March 14-87.
    “ Sold for °Jc Messrs. Iasigi & Co., of Boston, to Mess’rs. C. Rosenstein & Co. Five hundred bags good merchantable quality Smyrna Canary Seed, March Steamer shipment from Turkey, at Two & three-quarter (2f) cents per lb. gross weight for net, less 1 p. c. for cash in 10 days from date of delivery on dock in New York. No tare — no charge for bags. Goods to be taken from dock on arrival of Steamer when ready for delivery. Damaged bags, if any, to be taken at fair allowance. Name of Steamer to be given soon as
    known' “ GEORGE M. BLACK, Broker,

    “ 60 Mew St.,f

    Indorsed : “Accepted, New York, March 16th, 1887. C. Rosenstein & Co.” .
    Second indorsement: “Name of Steamer reported, ‘Aleppo.’ No arrival, no sale — New York, April 22-87. George M. Black, Broker. ”

      “ New York, Ma/roh 25-87.
    “ Sold for a¡c Messrs. Iasigi & Co., of Boston, to Messrs. C. Bosenstein & Go. Five hundred bags good merchantable quality Smyrna Canary Seed, March Steamer shipment from Turkey, at two and three-quarter (2 3-d) cents per lb. gross weight for net, less 1 p. c. for cash in 10 days from date of delivery on dock in New York. No tare, no charge for bags. Goods to be taken from dock on arrival of steamer when ready for delivery. Damaged bags, if any, to be taken at fair allowance. Name of steamer to be given as soon as known. No arrival, no sale.
    “ GEOBGE M^ BLACK, Broker,

    “ 60 New StB

    “March 30, 1887. Name of steamer reported ‘Aleppo,’ from Bodosto. G. M. B.”
    Indorsed: “Accepted, New York, March 31st, 1887. C. Bosenstein & Co.”
    ,, “ New York, April 5, 1887.
    “ Sold for <x[c Messrs. Iasigi & Co., of Boston, to Messrs. C. Bosenstein & Co. One hundred bags good merchantable quality Smyrna Canary Seed, to arrive March shipm’t per Steamer ‘Aleppo,’ from Bodosto, at two and three-quarters (2f) cents per lb. gross weight for net, less 1 p. c. for cash in 10 days'from date of delivery on dock in New York. No tare, no charge for bags. Damaged bags, if any, to be taken at fair allowance. Goods to be taken from dock on arrival of Steamer when ready for delivery. No arrival, no sale.
    « GEOBGE Mi BLACK, Broker,

    “ 60 New SbreetN

    Indorsed: “Accepted, New York, April 6th, 1887. C. Bosenstein & Co.”

      Dmid Keane, for the appellant.

      H. AppUngton, for the respondent.
   O’Brien, J.:

No order having been entered denying a motion for a new trial, and no request having been made by the plaintiff to go to the jury, no question of fact is present for review, and the only exceptions before the court are those taken by plaintiff to the rulings refusing to admit evidence with respect to the custom prevailing in regard to the shipment of goods from Turkey to New York.

The parties to this action entered into three contracts of substantially the same tenor, but of different dates, for the purchase of 1,100 bags of Smyrna canary seed, to be shipped in March, 1887, on the steamer Aleppo from Turkey. The ground upon which the seed was rejected, and on which at the trial the complaint was dismissed, was the insistence of defendant that the contracts required a direct shipment from Turkey to New York on the steamer Aleppo, while the evidence shows that, though the seed was shipped from Eodosto in Turkey on the steamer Aleppo, the latter conveyed the cargo no further than Liverpool, where the seed contracted for was reshipped and arrived in New York on the steamer Aurania.

The question, therefore, is, whether a contract such as was here made between the parties, which provided that the seed was “ to arrive March shipment per steamer ‘Aleppo’ from Eodosto,” has been fulfilled by a delivery in the'city of New York by the steamer Aurania.

It is insisted by appellant that the contracts do not expressly say that the shipment should be to New York on the Aleppo, but merely on the Aleppo from Turkey; that the intention of the parties was that the shipment should be made from Turkey on the Aleppo, but not that the Aleppo should come to New York, the parties having known that such was not the custom or usage. To establish a custom and usage tending to show that there was no direct steamer coming from Turkey to New York, and that the invariable custom and usage was to transship at Liverpool, the plaintiff offered evidence which, upon objection, was excluded, and the exception to the exclusion of such evidence presents the questions raised by this appeal.

It must be regarded as settled law that where contracts are plain, unambiguous and easily understood, no proof of custom or evidence extrinsic of the contracts themselves can be resorted to, it being the duty of the court to give to the language employed its ordinary and reasonable meaning. Another well-recognized rule of construction is, that no evidence of custom or usage is competent to vary or contradict the express terms of a written contract; resort to custom and usage being permissible only where it is necessary to supply an omission or annex an incident entirely consistent with the written terms of the contract. As stated by Starkey on Evidence, page/TlO : <£ In many instances too, evidence of cu'stom and usage is admissible for the purpose of annexing incidents to the terms of a written instrument concerning which the instrument is silent, although if any ■condition or term in the contract is necessarily repugnant to or inconsistent with the custom, the latter is excluded.” It is true that merchants contract ordinarily with reference to established customs and usages in their particular business; and where the contract is not in writing, or, if in writing, an ambiguity exists therein, or the contract is silent as to some incident connected therewith, it is competent to have resort to custom or usage for the purpose of showing what the contract made between the parties was. Notwithstanding, however, the existence of customs and usages in a trade or business, it is perfectly competent for the parties to enter into a written contract, whose terms are inconsistent with such usages. And when the terms are clear and unambiguous, and by giving to the language ■employed its ordinary and well-defined meaning but one construction is open, it is clear that the terms of the agreement cannot be impaired or destroyed by evidence extrinsic of the contract relating to custom or usage.

~We think that the contract here, fairly construed, regard being had to the language used, was one. by which the plaintiff contracted to sell the seed to arrive by the steamer Aleppo from Turkey to New York; and that evidence tending to show a custom of the trade, or that vessels never came directly from Turkey to New York, would be permitting the plaintiff to interpolate in the contract terms which would change the construction that the language used would require us fco give to it.

It is insisted by appellant that whether the seed came from Turkey directly by the Aleppo or was transshipped at Liverpool to another vessel is unimportant and should not have attached to it a weight sufficient to justify a rejection by the defendant of the contract. Our attention is called to the fact that the answer does not allege that this circumstance of the change was of any consequence, and that it does not state any facts to show that it was of any importance, pecuniarily or otherwise, to the defendant; it being conceded, moreover, that in all other respects the seed tendered and rejected, complied fully with, the description contained in the express terms of the contract. We are not at liberty, however, to determine the relative importance of terms in a contract, nor have we the power to reject any provision of a contract which the parties themselves have inserted and which they may have deemed important; nor in an action such as this was it necessary for the defendant to show in what respect he was injured by such change.

The plaintiff brought this action to recover damages for a breach of the contract, and before a recovery could be had in such an action it was essential for him to show that he had fully complied with all the terms and conditions of the contract to be performed on his part.

The question, however, as to whether the manner of shipment is important has been passed upon adversely to the position assumed by the appellant in many cases, and it has been held that the mode of shipment is not an immaterial or unimportant accessory “ affecting only the method of performance, but is of the substance of the agreement, because identifying its subject-matter.” (Bidwell v. Overton, 26 Abb. N. C., 402; see, also, Benjamin on Sales, §§ 588,, 600; Hill v. Blake, 97 N. Y., 216; Welsh v. Gossler, 89 id., 540.) Here the means of identifying the seed the defendant agreed to purchase was the arrival of the Aleppo with such seed on board; and seed even of the same quantity and quality brought to New York by any other steamer than the Aleppo would certainly not be the seed the defendant contracted to purchase from the plaintiff, the words as to the mode of shipment being part of the description of the subject-matter. (Benjamin on Sales, § 588.) In sales of goods to arrive,’ it is quite a usual condition that the vendor shall give notice of the name of the ship on which the goods are expected as soon as it becomes known to him, and a .strict compliance with the promise is a condition precedent to his right to enforce the contract.” Certainly, the failure to give the name of the vessel in a case where the goods, in all other respects, answer the description of a contract, is no more important than a provision in the contract relating to the mode of shipment. If we were at liberty to determine their relative importance, we should say that more was to be attached to the mode of shipment than to the name of the vessel; because, while both were intended for the purpose of identifying the property, the mode of shipment might have, in case of loss, an important bearing •upon the question of the insurance upon the cargo, and a change in the mode of shipment might result in a forfeiture of the policy. In this case, the ’ name of the vessel having been ascertained to be the Aleppo, and having in the last contract expressly agreed to a -shipment from Turkey by the Aleppo, that, had the defendant taken out a policy of insurance covering any interest which he might have in the seed to arrive, under the usual terms and conditions of such a policy, unless arrangements with the insurance company were made for transshipment at Liverpool, the policy could not have been enforced if a loss had occurred to the goods during their transit from Liverpool to New York. Apart, therefore, from the method of' shipment being a necessary part of the description, we have suggested one way in which we think the defendant might have been injuriously affected, and in respect to which the method •of shipment would be an important term or provision of the contract. It is true that under the contract here, providing “ no arrival, no sale,” the defendant might have no insurable interest. We are discussing, however, the bearing which the presence of such a condition, in the absence of express stipulations in the contract to the contrary, would have upon the rights of the parties.

It is unnecessary, however, to further discuss the question, it being ■sufficient for this appeal to say that a fair and reasonable construction of the contracts having required a direct shipment from Turkey to New York on the Aleppo, it could only be fulfilled by the arrival •of such vessel in New York, Such construction being clearly and ■plainly indicated by the language used in the contracts, it was not competent to resort to evidence of custom or usage to vary their terms. We think, therefore, that the learned trial judge properly excluded such evidence of custom, and that, in the absence of such evidence, the plaintiff having failed to show a compliance with the term in regard to the mode of shipment from Turkey to New York, •the complaint was properly dismissed.

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

Yan Brunt, P. J., concurred.-

Patterson, <J.:

I concur for the reason that the fair construction of the contracts Is that the goods were to be sent from Turkey to New York by the steamer Aleppo. In the first and second contracts there is a fair-implication that the parties contracted for a continuous transit by one vessel. The name of the steamer was to be subsequently reported, and the contracts provided for removal of the goods from the dock on arrival of that steamer. In the third contract the steamer is named and the same provision for removal of the goods on arrival of the steamer is contained in it. If there were such an usage as the plaintiffs claim existed, the terms of the contract seem to imply that the parties specially agreed without reference to it.

Judgment affirmed, with costs.


text:
    ERNEST J. LECOCQ, Respondent, v. AUGUSTE POTTIER, as Executor of JULES LECOCQ, Deceased, Appellant.

      Decedents’s estates — a reference of a disputed claim— the effect of referring it, before-, decision, to another referee against the objection of a party to the proceeding.

    A claim of Ernest J. Lecocq against the estate of Jules Lecocq having been disputed by the executor, Auguste Pottier, the matter was referred. For a failure: ■to prosecute a motion was made to dismiss the proceeding, and an order was. thereupon made denying the motion, referring the matter to another referee in. place of the first-named one who had declined to act, and further directing that, the evidence taken by the former referee should he received and considered as. if it had been given upon the new reference, and that all such evidence should, stand.
    The claimant appealed from the order.

      Held, that it was improper.
    That the motion to dismiss should either have been granted or denied.
    That as such a reference could only be had in the first instance by consent, the court had not power of its own motion to appoint another referee against the wishes of the claimant.
    That it was not just to the claimant nor proper to order, against his objection, that the proofs and testimony taken before the former referee should be considered and received on the hearing before the new referee.
    Appeal by Auguste Pottier, as executor of Jules Lecocq, deceased, from an order of the Supreme Court, dated on the 27th day of May, 1892, denying a motion made by the executor to dismiss a proceeding relative to a claim against the estate of Jules Lecocq for want of prosecution, and appointing William P. Prentice a referee, therein in place of John M. Bowers.

      Tlie proceeding arose out of a claim of Ernest J. Lecocq against the estate of his father, Jules Lecocq, which was disputed by the executor of the estate, Auguste Pottier, and was referred in the usual manner. ’

      Benjamin T. Kissam, for the executor, appellant.

      Brownell c& Báthrop, for intervening legatees, appellants.

      Edmond JBuerstel, for the respondent.
   O’Brien, J.:

This proceeding arises out of a claim made against an estate which was referred to a referee. Upon failure to proceed with the reference a motion was made to dismiss, which was granted. Subsequently the claimant moved to open the default, which was allowed upon terms. TTpon the ground of the claimant’s failure to proceed ■with the reference as required by the order opening the default, a second motion was made to dismiss the proceedings and upon such motion an order was made denying said motion and referring this proceeding to William P. Prentice, as referee, in place and stead of John M. Bowers, who has declined further to act; the referee, Prentice, to proceed to the hearing and determination of this proceeding with all convenient speed, and'that the proofs and testimony heretofore taken before the said John M. Bowers shall be considered and received on the hearing and trial before said referee, Prentice, with same force, virtue and eifect as if they had originally been taken before him herein, and that all the evidence heretofore taken in this matter stand and be received by the said referee, Prentice, in the trial to be had on this proceeding before him.”

This appeal is taken from the foregoing order. The excuse offered for a failure to proceed was that the referee declined to act; and it was, no doubt, as the result of this statement contained in the opposing affidavits that the judge proceeded to appoint another referee and gave the further directions contained in the order appealed from. We think, however, that in this the learned judge exceeded his power.

The motion before him was one to dismiss the proceeding for failure to prosecute, and this, we think, should either have been granted or denied. This would have left the parties in such position that if, as a matter of fact, the referee declined to proceed either party could have moved to discharge the referee and for the’ substitution of another in his place. It must be remembered that in ■cases of this kind a referee can only be appointed by consent of parties; and the case of Emmet v. Bowers (23 How. Pr., 300), supports the view that where a referee so appointed refuses to proceed the parties are relegated to their original status and have the right to consent to a new referee or be heard by a jury.

The case of Masten v. Budington (18 Hun, 105), holds that where, upon appeal to the General Term from a judgment entered upon the report of a referee appointed to determine the validity of a claim against the estate of a deceased person, the judgment is set aside and the order of reference vacated, the court at Special Term has power to refer the case to a new referee to hear and determine.

In this proceeding, however, no motion was regularly made to vacate, nor was the order of reference vacated; but, upon a motion to dismiss for want of prosecution^ upon an intimation that the referee appointed by consent of the parties had declined to act, the court, of its own motion, vacated the order of reference and appointed a new referee, not only without the consent, but in direct opposition to the wishes of certain of the parties to the proceeding. This, as we have said, we do not think the court had power to do, nor can we find any sanction for the direction in the order, that the proofs and testimony heretofore taken” before the referee shall be considered and received on the hearing ” before the new referee.

In Maicas v. Leony (113 N. Y., 621), the court, in commenting upon a similar direction in an order, says: The provision in the order that the evidence already taken may, by consent of both parties, be read before the new referee, does not give the defendant all he is entitled to, and secure all his substantial rights. The plaintiff may withhold his consent, and then his evidence cannot be read, and the new referee will not have the benefit of seeing and hearing the witnesses.”

The direction in this order is more objectionable than the one commented upon in the case above referred to, for the reason that it was inserted, not only against the consent, but in opposition to the defendant’s wishes.

We think, therefore, that the order appealed from should be modified by striking all provisions therefrom except that which denied the motion to dismiss, and, as so modified, the order should be affirmed, without costs.

Yak Brunt, P. J., concurred.

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


text:
    CHARLES JOHNSON, Appellant, v. PETER BUCKEL, Respondent.

      Attachment — grounds thereof stated in the alternative, insufficient — an action upon contract on a claim not due — fraudulent representations alone will not support cm attachment — there must he a fraudulent disposition of property.

    An attachment, granted at the suit of Charles Johnson against the property of Peter Buckel, stated the grounds upon which it was granted to be that “ the defendant has removed, disposed of, assigned and secreted, and is about to remove, dispose of, assign and secrete, his' property with the intent and design of defrauding his creditors.”
    Upon an appeal from an order vacating the attachment;

      Held, that the recital could not support the attachment.
    That it was inconsistent to allege that a debtor had removed his property, and then in the conjunctive that he was about to remove it.
    That such an allegation must be directed to showing that the debtor had done one or the other of these acts.
    The plaintiff Johnson attempted to recover upon nine causes of action, of which eight were promissory notes and the last a check. The complaint alleged - that Johnson had been induced to discount the notes, seven of which were not then due, by the false representations of Buckel as to his solvency.

      Held, that Johnson had an election to sue either on express contract or for fraud, in which latter case the debt would have become due at once.
    That as he had chosen the former course, and as the notes were not due, he could not sustain the attachment.
    Upon the question of fraud the affidavits of the plaintiff indicated fraudulent representations made by Buckel to Johnson as to his credit and resources, but did not prove any fraud in the .actual disposition of Buckel’s property which was, by real estate and chattel mortgages, given for honafide debts.

      Held, that fraudulent representations were not enough to sustain an attachment, but that there must also be satisfactory proof of a fraudulent appropriation of his property by the debtor with an intent.to defraud his creditors.

      Appeal by the plaintiff Charles Johnson from an order of the Supreme Court, entered in the clerk’s office of the city and county of New York on the 31st day of August, 1892, vacating an attachment issued against the property of the defendant.

      Henry Daily, Jr., for the appellant.

      Samuel Hntermeyer and Moses Weinman, for the respondent.
   O’Brien, J.:

The attachment recites that the action is brought to recover the sum of $14,972 as damages for breach of an express contract other than a contract to marry, and states the ground of the attachment to be that “ the defendant has removed, disposed of, assigned and secreted, and is about to remove, dispose of, assign and secrete his property with the intent and design of defrauding his creditors.”

The Code (§ 636) requires, before procuring the warrant upon this ground, that it should be shown that the defendant “ has assigned, disposed of or secreted, or is about to assign, dispose of or secrete,” the property with intent to defraud creditors. Where,, therefore, an attachment is sought upon the theory of a fraudulent: disposition of all a debtor’s property, the affidavits should be directed to showing that the debtor has done either one or the other; because the doing of both at the same time is necessarily inconsistent. In. other words, if a debtor has assigned or disposed of his property, it eliminates the idea that he is about to assign and dispose of it. It is true that the warrant could be granted upon showing that a portion of the property had been disposed of, and that as to the balance the debtor was about to disp>ose of it.

Although in this case the conjunctive, and not the disjunctive, positions are sought to be upheld as ground for procuring the warrant, a similar inconsistency to that pointed out with respect to the Code provisions is here apparent. The recital, as already pointed out, is, that the defendant “has removed, disposed of, assigned and secreted, and is about to remove, dispose of, assign and secrete his property.” It is plain that, if the affidavits sustain the recital that the defendant has removed and disposed of his property, it necessarily excludes the recital that he is about to remove and dispose of the same. This confusion of two separate and distinct things is noticeable in all the papers and in the argument of counsel for appellant upon this appeal. Where the ground relied on is the fraudulent disposition of property, the affidavits should be directed to'showing' either that the property has been disposed of or that the debtor is about to dispose of his property, or that, with respect to some'of it, he has disposed of it, and, with respect to other portions, he is about to dispose of it. But, as already said, it is inconsistent to assume the position that a debtor has disposed of his property, and in the next breath to assert that he is about to do so.

This failure of the plaintiff do place himself on definite ground is-equally noticeable when we come to consider the theory of plaintiff’s cause of action. He seeks to recover for breach of. an express contract setting forth nine causes of action, eight on promissory notes and the ninth upon a check. At the time the action was commenced and the attachment issued against the defendant’s property for $14,972, there had matured only the first note for $1,500 and the check for $1,000, these being the first and ninth causes of action stated in the complaint. With respect to the other-seven causes of action, the notes were not due. For the purpose, however, of immediately suing upon all the causes of action the-complaint contained a number of allegations showing that the plaintiff was induced to discount the notes by reason of the false and fraudulent representations of the defendant as to his solvency. There can be no doubt, upon a showing that fraud existed in procuring the money, that plaintiff had an election to sue either upon the express contracts — which would be the notes themselves and the-check — or upon the debt, or he could sue to recover damages for fraud. In other words, he had an election to either sue upon the express contract or sue for the fraud. In the latter case the debt would become immediately due, while in the former the debt would become due according to the terms of the contract. The plaintiff, however, elected to sue upon the express contract; and, as-already stated, as to seven of the causes of action, embracing the-greater portion of the amount ‘ for which recovery was sought,, the amounts, according to the terms of the express contracts, were not due. The plaintiff, in the affidavit used to support the attachment, reiterates these several causes of action and states that the $14,972, with interest, is due over and above all off-sets and counterclaims; and yet, by the very statement, it is shown that there was then due but the sum of $2,500. This would necessarily be fatal to the attachment.

But apart from this, upon the main and principal ground of fraudulent disposition of property, no such case is made out as would justify the issuance of an attachment. For the purpose of showing the fraud committed upon him the plaintiff has built up a case of fraudulent representations by stating that at the time he advanced the money for the notes Abraham Solomon and Wolf Levy, from whom plaintiff obtained them, stated to him that the defendant had told them that he was perfectly solvent and able-to pay all his debts; that he wished to use the money for these notes for the purchase of malt and hops to use in his brewery for the manufacture of malt and beer, and that the notes would be paid at maturity; and that they also stated to plaintiff, at the time he received the notes and advanced the money for them, that the defendant had told them that he was worth $250,000 over and above all his debts, that he was doing a prosperous business, and that his brewery property was only incumbered by the purchase-money mortgage of $80,000. To demonstrate the falsity of these statements, it is shown that, in addition to this $80,000, there was another mortgage unrecorded at the time the notes were delivered for $89,000, and that, although the defendant had stated that there was no chattel mortgage on his personal property, he, subsequent to the delivery of the notes to plaintiff, mortgaged the personal property and chattels in and about his brewery for $87,038. In addition, the plaintiff shows that twenty-six chattel mortgages on property in this city, on which there was unpaid the sum of $17,085, were in July, 1892, which was a period subsequent to the delivery of the notes to plaintiff, assigned and transferred to one Ennis. In addition is a statement that about the time he received, or was receiving the money from the plaintiff, defendant sold and disposed of a large number of casks and other personal property connected with his brewery, receiving the money therefor.

From these statements the plaintiff argues that two conclusions are to be drawn: (1.) Fraud in procuring him to discount the notes by reason of such representations as to solvency having been false and untrue. (2.) That the placing of these mortgages or the recording of the $89,000 mortgage on the real estate, and the giving of the chattel mortgages, together with the sale of the casks, are evidence of the fraudulent disposition of property. Upon plaintiff’s theory both of these should be'made out; it being essential to plaintiff’s right to immediately sue the defendant and have the notes immediately payable, although, by their terms, they had not matured, to show fraud in- procuring the credit, and for the purpose of obtaining the attachment, the fraudulent disposition had necessarily to be made out.

Ve think, however, that a moment’s reflection will develop another inconsistency in the attitude thus assumed by the plaintiff. If the representations were false, in that the defendant was indebted to the various persons to whom these mortgages were given, and instead of having assets exceeding his liabilities he was insolvent, then the consideration supporting the giving of the mortgages is shown. While, if the defendant then had the property which he subsequently, by means of chattel mortgages or mortgages on the real estate, sought to fraudulently divert from his creditors, then the theory of false representations essential to enable the plaintiff to elect to sue at once, without awaiting the maturity of the notes, would be taken away.

Thus is presented a question similar to that in the cases of Kibbe v. Herman (51 Hun, 438); Fleitmann v. Sickle and Cœsar v. Sickle (13 N. Y. St. Rep., 399). In Kibbe v. Herman the attachment was issued upon the ground of fraudulent disposition of property, and in the affidavit, used in procuring the attachment, charges of fraudulent representation and fraudulent misappropriation of property were mingled. In that case it was held: “ That the attachment would not be upheld unless, in addition to the proof of f?’audulent representation, the charge upon which the attachment was granted, namely, the fraudulent misappropriation of property to defeat the claims of creditors, was sustained by satisfactory evidence of the debtors having been possessed of siich property.”

The court saying further: “We have held in the cases of Fleitmann v. Sickle and Cœsar v. Sickle (13 N. Y. St. Rep., 399) that, in applications of this character, where charges of fraudulent representations and fraudulent appropriation of property ai’e mingled, the attachment will not be upheld unless, over and above the charge ■of fraudulent representations, it appears that the ground upon which the attachment was granted, namely, the fraudulent appropriation of property to defeat creditors, is sustained by satisfactory evidence.”

It will be noticed that the affidavits, in supporting the view that defendant misrepresented his financial condition, do not, nor could they consistently, attack the good faith of the indebtedness for which the mortgages were given. The conclusions and inferences to be drawn therefrom are that, while sufficient to support the theory of fraudulent representations, they are clearly insufficient as regards fraudulent disposition of defendant’s property. Even with respect to the fraudulent representations, these not having been shown to have been made to the plaintiff, nor to Solomon and Levy, for the purpose of having them communicated to the plaintiff, a serious question is presented as to plaintiff’s right to repudiate the credit and thus enable him to sue for fraud. It is unnecessary, however to place our decision upon this ground, because, as we have pointed out, the fraudulent disposition of property by the defendant not having been shown, this alone was fatal to plaintiff’s right to an attachment.

We are of opinion, therefore, that the disposition made by the learned judge below was correct, and that the order appealed from should be affirmed, with costs and disbursements.

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

Order affirmed, with costs and disbursements.


author: Van Brunt, P. J.:

text:
    In the Matter of the Election of Directors of the GERMICIDE COMPANY OF NEW YORK.

      Corporations — a proxy cannot be coupled with an interest and made irrevocable— it is revocable at pleasure by statute. 0
    Albert L. Cohn, being indebted to Rosina Feuchtwanger, entered into an agreement with her whereby, among other things, he agreed to execute irrevocable proxies upon certain stock (pledged as a collateral to the indebtedness) to the attorney of Rosina Feuchtwanger, Myer S. Isaacs, or to such other attorney as she or her legal representatives might at any time designate, to be used by Isaacs and bis successors only in tlie event of the failure of (John to carry out the provisions of the agreement.
    Pursuant to this agreement Oohn executed proxies to Isaacs and afterwards failed to perform his agreement.
    Subsequently, in April, 1892, Isaacs appointed Adolph A. Sanger his proxy by substitution, to vote upon the stock. Sanger, at an election of directors of the corporation, offered to vote upon the pledged stock, but Cohn undertook to revoke the proxy given by him' to Isaacs and voted against the candidates approved by Sanger, who were thereby defeated, the inspectors having refused to accept the vote of Sanger.
    Upon appeal from an order denying a motion made by Albert H. Leyton, a stockholder, to set aside the election, it was

      Meld, that the decision of the inspectors of the election was correct.
    'That, as it was provided, by section 54 of chapter 564 of the Laws of 1890, that no stockholder in a corporation should sell his vote or issue a proxy to vote upon any stock or bond for any sum of money or anything of value, a stockholder was now expressly prohibited from issuing'a proxy, coupled with an interest, and, therefore, irrevocable.
    That, as the section cited also provided that every proxy should be revocable at the pleasure of the person executing it, parties could not by agreement create an irrevocable proxy, and thus repeal an act of the legislature.
    Appeal by Albert H. Leyton, a stockholder in the Germicide ■Company of New York, from an order of the Supreme Court, entered in- the office of the clerk of the city and county of New York on the 13th day of June, 1892, denying his application to have an election of the directors of the company set aside and that a new election be ordered; and also from a judgment of said court, entered in said clerk’s office on the 17th day of June, 1892, in favor of Albert H. Cohn and against said Leyton, for costs.
    This was an application made, under section 15 of the general corporation act (chap. 561 of 1890), by Albert H. Leyton, a stockholder, to have an election of the directors of the Germicide Company, a manufacturing corporation, held April 28, 1892, set aside and a new election ordered.
    It appeared that Adolph L. Cohn was indebted to Rosina Feuchtwanger, and had pledged to her, as collateral security for the debt, stock which stood in his name on the books of the Germicide Company, and that these parties entered into a written agreement relative to the payment of the debt and as to the giving of proxies upon the pledged stock. The agreement described Myer S. Isaacs as attorney for Rosina Feuchtwanger, and contained this clause: “ The said party of tbe first part agrees to deliver to said Myer S. Isaacs irrevocable proxies for voting upon all stock in tbe Germicide Company standing in tbe name of said party of tbe first part on tbe books of said, company on tbe first day of August, 1891, said proxies to be used by the said Myer S. Isaacs, or by bis successors, only in tbe event of tbe failure on tbe part of said party of the first part to faithfully carry out tbe provisions of this agreement, or any provisions thereof.”
    It was claimed that Cohn, who bad in August, 1891, executed to Isaacs tbe proxies contemplated by tbe written agreement, did not make tbe payments as be bad promised by the written agreement.
    On April 26, 1892, Isaacs appointed Adolph L. Sanger bis proxy by substitution to vote at an election of directors of tbe corporation held April 28, 1892, at which election Cohn appeared in person and. insisted upon bis right to revoke tbe said proxies, and tbe inspectors, received bis vote, which was against tbe candidates approved by Sanger, and prevented their election, and refused to allow Sanger to-vote upon tbe proxies.

      A. L. Sanger, for the appellant.

      J. W. BootKby, for tbe respondent.
   Van Brunt, P. J.:

One Colin, being indebted to one Feuchtwanger, bad pledged, as collateral security for the payment of the indebtedness, certain stock of the Germicide Company standing in bis name, and delivered, as additional security, to one Isaacs an irrevocable proxy for voting upon said stock, said proxy to be used by said Isaacs or by his successors. Isaacs duly appointed one Sanger as his successor and substitute; and as such substitute, at tbe annual meeting of the company, said Sanger offered to vote upon the stock which bad been pledged to Feuchtwanger and which was standing in tbe books of the company in the name of said Cohn; and if his vote had been accepted the candidates for which Sanger offered to vote would have been elected at said election. Cohn undertook to revoke the ' power which had been executed by him to Isaacs. Tbe inspectors thereupon refused the vote offered by Sanger and accepted tbe vote offered by Cohn, Sanger protesting against their receipt. This motion was thereupon made to set aside the- election and, tbe same having been denied, from the order thereupon entered this appeal is taken.

It is urged that the proxy given by Cohn to Isaacs was irrevocable, because such proxy was coupled with an interest and was given for a valuable consideration, and it is attempted to liken the proxy to a power of attorney, which, when coupled with an interest, is irrevocable. But the difficulty with the position of the appellant is that section 54 of chapter 564 of the Laws of 1890 (which was an act in relation to corporations), expressly provides that no stockholder shall sell his vote or issue a proxy to vote upon any stock or bond for any sum of money or anything of value. Therefore, the act has expressly prohibited parties from issuing a proxy coupled with an interest.

But, if this was not a sufficient answer to the application, another provision of the same act provides that every proxy shall be revocable at the pleasure of the person executing it. It is the policy of the law tfiat proxies shall not be made irrevocable, and in order to voice that policy in the strongest and most unmistakable language the legislature have expressly provided that stockholders in corporations shall not issue a proxy coupled with an interest; and further than that, that every proxy issued by a stockholder shall be revocable. Parties cannot by agreement repeal acts of the legislature. It might just as well be said that the usury laws could be repealed by parties entering into an agreement that seven per cent should be paid upon a loan and that the debtor would not plead usury.

The order should be affirmed, with ten dollars costs and disbursements.

O’Brien, <L, concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    JAMES P. FOSTER, Respondent, v. MORRIS MAYER, Appellant.

      Payment into court — as a condition of equitable relief granted to the payor — right of the adverse party to have the money paid over to him.

    James P, Foster, who had purchased certain premises of persons named Cavinato, subject to two bonds and mortgages given by them to Morris Mayer, alleging that he had tendered the amount due upon the mortgages, brought an action against Mayer to have the mortgages canceled of record.
    Subsequently Mayer began an action in the Court of Common Pleas of the city of New York to foreclose the mortgages, in which latter action the defense of usury was interposed. Thereupon Foster applied, in the action brought by him, for an order restraining the prosecution of the foreclosure action until the determination of his action, which order was granted upon condition that Foster should deposit with the clerk of the court the amount admitted by him to be due Mayer upon the mortgages, which deposit was duly made.
    Mayer then moved that the chamberlain of the city of New York be directed to pay over to him the deposit so made ; which motion was denied.
    Upon appeal by Mayer from the order denying this motion, it was

      Held, that the motion should have been granted.
    That the money was concededly due to Mayer, and was to be placed within his control as a condition of granting to Foster the equitable relief asked for — an injunction restraining the further prosecution of the foreclosure action.

      Nelson v. Poder (182 N. Y., 291) followed.
    Appeal by the defendant Morris Mayer from an order of the Supreme Court, entered in the office of .the clerk of the city and county of New York on the 3d day of June, 1892, denying a motion for an order directing the chamberlain of the city of New York to pay to the defendant the sum of $6,186, deposited by the plaintiff; with the clerk of the court under an order thereof.
    It appeared upon the motion that the plaintiff; James E. Foster had purchased the jiremises in question of persons named Cavinato, subject to two bonds and mortgages, which had been given by the Cavinatos to Morris Mayer, the defendant.

      Sol. Eohn, for the appellant.

      E. Schenolc, for the respondent.
   Van Brunt, P. J.:

This action was brought for the cancellation of record of two mortgages upon premises purchased by the plaintiff;, the plaintiff claiming that he had tendered the amount due upon the mortgages, and hence that the liens created by said mortgages were discharged.

Shortly after the commencement of this action the defendant began an action in the Court of Common Pleas for the foreclosure ■of these mortgages. The defense interposed was usury, and the cause having been set down ’for trial, the plaintiff herein applied in this action for an order to restrain the prosecution of the foreclosure ■suit until the determination of this action; which motion was granted upon condition that the plaintiff should deposit with the clerk of the ■court the amount admitted by him to be.due to the defendant upon ■the mortgages, with interest. The plaintiff thereupon made such deposit, and the defendant subsequently' moved for a direction that the chamberlain pay over to him the money so deposited. This motion being denied, this appeal was taken from the order thereupon entered.

The right of the defendant to receive this money at any time seems to be apparent, as it is ■ a sum admitted to be due from the plaintiff to the defendant, and was not deposited to abide the event of the action. The object of the deposit was to place within the ■control of the defendant the amount admitted to be due, and was made in order that equitable relief might be granted. It seems to be needless to cite authorities to show that a deposit being made under such circumstances, if the defendant desires to avail himself ■of the deposit he has a right to do so at any time. But the case of Nelson v. Loder (132 N. Y., 291), expressly disposes of this question. The court say: If a debtor wishes to extinguish his liability for subsequently accruing interest, or demands some affirmative relief, he cannot retain the money subject to his own use, but must ■devote it to the specific purpose of paying the debt, and put it within the power of the creditor to receive it at any time.”

In the case at bar, as has already been stated, the equitable relief demanded was the cancellation of the mortgages, and an injunction restraining the prosecution of the foreclosure action.

It would seem, therefore, beyond question that the defendant was entitled to this money admitted to be due upon the mortgages, and, therefore, admitted to belong to him at any time he chose to take it.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

O’Brien, J., concurred.

Order reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.


text:
    RICHARD L. SIMMONS, as Administrator of CELIA R. SIMMONS, Deceased, for Himself and Others who shall Elect to Join in the Action, Respondent, v. EDWARD C. HAZARD and Another, Appellants, Impleaded with Others, Defendants.

      Examination of a party befoi'e trial — based on an affida/oit of cm attorney not acquainted with the facts — proof as to the necessity for the examination and as to wJiat each witness is expected w prove — residence of a pa/i'ty.

    Celia E. Simmons, pending an action brought by her against a receiver and certain persons whom she charged with fraud in the management of an insurance company in which she was interested as the holder of a death claim, died and her administrator was substituted as plaintiff therein. After issue joined the administrator, by his attorney, made an application to the court for an order authorizing him to examine two of the defendants, under section 873 of the Code of Civil Procedure, based upon an affidavit verified by the attorney, the plaintiff deposing that he was not acquainted with the facts which constituted the cause of action.
    It did not appear from the affidavit that the attorney had any personal knowledge of the facts, and he referred in support thereof to the complaint, which was verified upon information and belief. Plaintiff’s motion was granted, and a motion to vacate the order was denied.
    Upon an appeal by the defendants from an order denying the motion to vacate the order authorizing the examination of the defendants it was

      Held, that such an affidavit must be made by a person having personal knowledge of the material allegations of the complaint, or, if not, that the affiant must give the sources of his information and belief.
    That, upon such an application, the moving party must show a necessity'that the examination should be had before instead of at the trial, and the reasons why it was supposed that the adverse parties could not be procured as witnesses upon the trial.
    That where it was sought to examine more than one defendant the papers should show what it was expected would be proved by each witness.

      That as section 878 of the Code of Civil Procedure required a statement of the names and residences of all the parties to the action, it was not enough to state that the residence of a party was unknown to the deponent without something to show that unsuccessful inquiry had'been made to ascertain it.
    That orders to examine adverse parties were not to be granted as of course, but were to be allowed only upon compliance with the statutory regulations and in the exercise of a sound discretion.
    Appeal .by the defendants, Edward C. Hazard and Lewis A. Osborn, from an order of the Supreme Court, entered in the office ■of the clerk of the city and county of New York on the 30th day of June, 1892, denying their motion to vacate an order to examine them us adverse parties and directing them to appear for examination.
    The order was asked for under section 873 of the Code of Civil Procedure.
    It appeared by the plaintiffs affidavit that in June, 1887, Duane L. Simmons insured his life for the benefit of Celia R. Simmons, his wife, in the Co-operative Life and Accident Association of the United States, and by his death in December, 1888, that company became liable to pay, but did not pay, the loss to his wife.
    • The plaintiff thereupon brought an action in February, 1889, in the Supreme Court for herself and others who should elect to join in the action against "William J. Lacy, into whose hands, as receiver, the corporation had passed on July 17, 1888, and other persons, •charging such other persons with the commission of certain fraudulent acts, which are more particularly stated in the opinion. The original complaint was made upon information and belief, and was verified by one of the plaintiff’s attorneys, the affidavit of verification stating thát the plaintiff was not within the county where the •deponent resided.
    Celia R. Simmons, after issue joined, and on January 12, 1892, died, and Richard L. Simmons, who had been duly appointed her administrator, was, on March 28, 1892, substituted by order as plaintiff herein.
    It was alleged in the moving papers that Hazard had been the president and Osborn the secretary of the corporation.
    The affidavit of the plaintiff’s attorney, which did not indicate personal knowledge of the facts, contained the following clauses :
    “ That this action is brought against the directors of the Co-operative Life and Accident Association of the United States, and the receiver of such corporation is made a party. That such directors are sought-to be charged to the extent of the claim of plaintiff, and of others who may join in the prosecution of this action, with the amount and value of the assets and moneys of such corporation misappropriated, or allowed to be misappropriated, by them, as will appear more at large from the complaint, which is hereby referred to and made, part hereof.
    “ That the testimony of the above-named Edward C. Hazard and Lewis A. Osborn is material and necessary to enable plaintiff to show that the defendants have conducted said business in the manner-set forth in the complaint, and without said testimony the plaintiff' cannot safely proceed to the trial of this action.”
    The affidavit concluded with this statement: “ This affidavit is-made by deponent for the reason that the original plaintiff herein is deceased, and that the facts therein stated are within deponent’s-personal knowledge.”
    There was also an affidavit of the present plaintiff that he knew nothing of the facts except that the action was brought by Celia It. Simmons ; that she died ; that he had been appointed her administrator, and had been substituted as plaintiff.

      Charles C. Leeds, for the appellants.

      Morse c& Wensley, for the respondent.
   O’Brien, J.:

The plaintiff was substituted for Celia It. Simmons, who originally appeared in this action for herself and others, who might elect to-join therein against the defendants (except the receiver), as directors and officers of the Co-operative Life and Accident Association of the United States, to recover damages on the ground of alleged fraud in the management of the affairs of that company, misapplication and misappropriation of its funds, and unlawful disposition of its-property.

Certain objections to the sufficiency of the order for the examination of these defendants were presented to the court and are relied, upon, which may be briefly referred to. It is insisted that the-present affidavit is not in any material respect better or stronger than the one already judicially declared insufficient, as pointed out in thé opinion of the presiding justice upon the former appeal. (Simmons v. Hazard, 33 N. Y. St. Rep., 838.) lie therein says that the order “ should have been vacated, if for no other reason, because the affidavit upon which it was granted was verified by the attorney for the plaintiff without any .sufficient reason being given therefor.” The present affidavit is again verified by the attorney, but from it, it appears that the original plaintiff has since died, and that the present plaintiff is ignorant of the facts going to constitute the cause of action, and the present attorney swears that the facts are within his personal knowledge. If, however, we examine the affidavit, in view of this positive statement of the attorney, and its reference to the complaint, which is upon information and belief, it is subject to the criticism that the attorney’s knowledge is derived from the statements contained in the complaint, and that the facts are known to the attorney to be stated in the complaint; but the attorney nowhere asserts that he has now or ever had any personal knowledge of the facts thus alleged.

As said in the opinion upon the former appeal:

“ These affidavits should be made by the party, he or she, being the only one who can asseverate as to his or her own knowledge or information, material allegations. There is nothing in the affidavit under consideration to show that the-attorney had any peculiar knowledge as to any of the facts necessary to be established.”

"We do not think, therefore, where an affidavit to support an order of this kind makes reference to a complaint which is made upon information and belief, that a statement by such attorney that he has knowledge of such allegations in the complaint is sufficient. "What is required is that the person applying for the order should have personal knowledge of the facts upon which the right to such order depends, or, in the absence of such knowledge, where he moves upon statements made upon information and belief, the sources of the information should be given. Had the attorney here stated that he knew the facts of his own knowledge and the circumstances under which such personal knowledge was acquired, we think it would have been sufficient. But where, as here, such knowledge consists of the allegations of a complaint, made upon information and belief, it is clearly insufficient. It may be that the attorney intended to asseverate bis personal knowledge of the facts; but as this is net entirely clear the doubt arising from the attorney’s formulation of the affidavit is not to be resolved in his favor.

Apart from this, however, there are other and more serious defects shown upon the papers. No reason is assigned showing the necessity or importance of the examination before rather than at the trial, or for supposing that the defendants could not be had as witnesses at the trial. The only attempt to comply with this requirement is the bare naked statement, which is clearly insufficient, that plaintiff intends to use the deposition taken pursuant to the order sought herein upon the trial of this action.”

Another defective statement is that the place of residence of the defendants, Mersereau and Osborn, is unknown. With respect to both of these it was shown that their names and residences appeared in the New York City Directory, that of the defendant Osborn having regularly and correctly appeared for more than thirty years past. The section (873) requires that the names and residences of all the parties to the action should be stated; and this cannot be held to have been complied with by a bare statement that they are unknown to the affiant, without some evidence being furnished that inquiry has been made to ascertain them, coupled with some fact showing that there is difficulty in learning them.

We think, too, that where, as here, more than one defendant is sought to be examined, what is expected to be proved by each witness should be stated. The affiant states “ that it is material and necessary for plaintiff to prove the number of members of said insurance company at the time of the death of plaintiff’s insured, also the sending out and collecting of an assessment for the purpose of paying plaintiff’s claim, which assessment was sent out and collected, as deponent believes, from a card containing the same, which is in deponent’s possession, all of which facts are within the knowledge of said Hazard and Osborn.” Assuming such facts to be material and necessary, if either of these witnesses can furnish the testimony, then no reason exists for the examination of the other; and if only a part of such information rests with one, and another portion with the other of the witnesses named, then the information which is desired from each should be stated We think, however, there is grave doubt as to whether such evidence is at all material and necessary, or as to whether or not it is within the issues framed by the pleadings.

The action itself is to recover damages resulting to plaintiff from the dishonest management of the corporation, and for the unlawful appropriation of some $46,000 to the use of certain of the defendants named, and the destruction of a valuable business worth $500,000. The relevancy and materiality to such a cause of action of testimony in regard to the number of policyholders, and as to whether or not there was issued a notice for the collection of an assessment, or an assessment collected for the purpose of paying plaintiff’s claim, are not apparent. ■ It is true that great liberality is •allowed with respect to the examination of parties where, by reason of their peculiar relations of trust or confidence to the plaintiff, the latter necessarily relied upon the good faith and honesty of such persons. In these cases, in the absence of personal knowledge, and upon a showing that the plaintiff has ground to suspect the good faith of persons holding to him either the relation of trustee or agent, an opportunity to examine such persons should be afforded. The principle of those cases, however, is easily distinguishable from the present. Here the plaintiff charges the defendants with the dishonest appropriation to their own use of moneys of a corporation in which his intestate was a policyholder. It is but fair that such ■charges should be made upon the personal knowledge of those in possession of the facts, or that such information and the sources thereof should be so stated as to furnish a reasonable ground for concluding that the charges thus made were, in good faith, honestly ■entertained, and that the information sought to be elicited was necessary and material, and such as should be furnished to the plaintiff now rather than compel him to await the trial of the action.

It should be remembered that these orders are not to be granted as of course, but are to be allowed upon compliance with the statutory requirements and in the exercise of a sound discretion. If we may disregard any, we may disregard all, of the statutory requirements, because it is not easy to determine, if any can be dispensed with, which ones are essential, It would have been proper for the legislature, had that been the policy, to have allowed examinations of parties and witnesses before trial as of course and without making tlié same depend upon compliance with certain requirements of tlie Code. In what respect these have been violated we have again, as upon the former appeal, endeavored to point out. And, to the end that the plaintiff may have another opportunity of complying therewith, we have concluded that the order appealed from should be reversed, and that, upon payment of the costs and disbursements of this appeal, the plaintiff should be allowed to renew the application upon new papers.

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

Order reversed, upon payment of the costs and disbursements of this appeal plaintiff be allowed to ■ renew the application upon new papers.


text:
    Decisions handed down June 29, 1892.
    American Bank Note Company v. The Manhattan Railway Company.
   — Motion denied, with ten dollars costs.


text:
    George H. Dyett, Appellant, v. The Central Trust Company, Respondent.
   Motion denied, with ten dollars costs.


author: Per Curiam.

text:
    Safety Electric Construction Company, Respondent, v. Henry Creamer, Appellant.
   — Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    In the Matter of Proving the Last Will and Testament of Rose Ann Curry, Deceased.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    In the Matter of the Application of Arthur L. Sardy, etc.
   — Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


author: Patterson, J.

text:
    In the Matter of the Application of David R. Hyde,etc.
   — Order affirmed,with costs. Opinion by

Patterson, J.


author: VanBrunt, P. J.

text:
    Richard D. Alliger, Respondent, v. The Mail Printing Association, Appellant.
   — Order affirmed, with costs. Opinion hy

VanBrunt, P. J.


author: Van Brunt, P. J.

text:
    In the Matter of James J Whalen, Appellant.
   Order affirmed, with costs. Opinion by

Van Brunt, P. J.


author: Van Brunt, P P.

text:
    Orvilla Turenne, Appellant, v Wilbur F. Washburn, Respondent.
   — Judgment affirmed. Opinion by

Van Brunt, P P.


author: Van Brunt, P. J., and O’Brien, J.

text:
    John C. Bundy, Respondent, v. Henry J. Newton, Appellant.
   — Judgment affirmed, with costs. Opinions by

Van Brunt, P. J., and O’Brien, J.


author: Van Brunt, P. J , and O’Brien, J.

text:
    Eugene H. Levy, Respondent, v The Beekman Publishing Company, Appellant.
   — Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinions by

Van Brunt, P. J , and O’Brien, J.


author: O’Brien, J.

text:
    Edward A. McCampbell. as Assignee, etc., Appellant, v The National City Bank, Respondent.
   Judgment affirmed, with costs. Opinion hy

O’Brien, J.


text:
    Gotthelf Pach and others, Respondents, v. Nicholas Geoffroy and others, Appellants.
   — Order módefied as directed m opinion, and as modified affirmed, without costs of this appeal to either party. Opinion hy

Patterson, J.


author: Per CuHam.

text:
    Isidor Richmond, by Bessie Richmond, Guardian, etc., Respondent, v. Second Avenue Railroad Company, Appellant.
   — Order affirmed, with ten dollars costs and disbursements. Opinion

Per CuHam.


text:
    George H. W. Curtis, Appellant, v. Wheeler & Wilson Manufacturing Company, Respondent.
   — Exceptions overruled and judgment ordered for defendant upon the verdict, with costs. Opinion by

Van Brunt, P. J.


author: Van Brunt, P J.

text:
    The Hecla Consolidated Gold Mining Company, Respondent, v. William L. O’Neill, Appellant.
   Judgment affirmed, with costs, with leave to the defendant to amend his answer upon payment of the costs below and of this appeal in twenty days. Opinion by

Van Brunt, P J.


text:
    John J. McHugh, Appellant and Respondent, v The New York Elevated Railroad Company and another, Appellant and Respondent.
   Judgment affirmed, with costs, Opinion hy

Van Brunt, P. J.


text:
    John Flannagan, Respondent, v. John O’Brien and another, Appellants.
   — Judgment and order reversed aud new trial ordered, with costs, not to the appellant only, but to the finally successful party, to abide the event of the action. Opinion by

Van Brunt, P. J.


text:
    Catharine Cook, Respondent, v. The Long Island Railroad Company, Appellant.
   — Judgment and order affirmed, with costs. Opinion hy

Patterson, J.


text:
    James Gibb, Respondent, v. Joseph F. McCoy and another, Appellants.
   — Order and interlocutory judgment affirmed, with costs, and with leave to appellant to withdraw his demurrer within twenty days upon payment of costs-of demurrer in court below, and upon this appeal. Opinion hy

Patterson, J.


text:
    Rudolph A Loewenthal, Appellant, v. The Philadelphia Rubber Works, Respondent
   —Order modified as directed in opinion, and, as modified, affirmed, without costs. Opinion by

Van Brunt, P. J.


author: Van Brunt, P. J

text:
    The People of the State of New York ex rel. Samuel Rey v. The Court of Special Sessions.
   Writ dismissed with ten dollars costs and disbursements. Opinion hy

Van Brunt, P. J


text:
    Amelia Bernstein, Respondent, v. James Nealis, Appellant.
   — Judgment affirmed, with costs. Opinion hy

Van Brunt, P. J.


text:
    James Saxton, Appellant and Respondent, v. The New York Elevated Railroad Company and another, Appellants and Respondents.
   — Judgment affirmed, without costs,


text:
    John S. D. Manville, Appellant, v. J. Warren Lawton, etc., Respondent.
   — Judgment reversed and new trial ordered, with costs to the appellant to abide the event. Opinion hy

Patterson, J.


text:
    John Meredith Jones and others, Plaintiffs, v. Henry J. Newton, as Assignee, etc., Defendant.
   — Order modified as directed in opinion, together with ten dollars costs of this motion and disbursements. Opinion by

O’Brien, J.


text:
    John H. Ming and another, Appellants, v. Austin Corbin, Respondent.
   — Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by

Van Brunt, P. J.


text:
    Abraham S. Friedland, Respondent, v. Lewis Myers, Appellant.
   — Judgment and order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    The Hygeia Water Ice Company, Appellant, v. The New York Hygeia Ice Company (Limited), Respondent.
   — Judgment affirmed, with costs. Opinion by

O’Brien, J.


text:
    Charles Smith and another, Respondents, v. Seattle, Lake Shore and Eastern Railway Company, Appellant.
   — Order reversed, with ten dollars costs and disbursements of the appeal. Opinion

Per Curiam.


text:
    T. Thomas Fortune, Respondent, v. James Trainor, Appellant.
   — Judgment and order affirmed, with costs. Opinion by

Patterson, J.


text:
    In the Matter of the Application of the Department of Public Works, etc., Relative to One Hundred and Sixtieth Street.
   — Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    Henry Heywood and others, Respondents, v. William N. Thacher, as Assignee, etc., Appellant.
   — Motion for a reargument denied. Opinions by Barrett, J., and Van Brunt, P. J.; dissenting opinion by

O’Brien, J.