text:
    FRANCOIS P. FAIVRE, Plaintiff v. UNION DIME SAVINGS INSTITUTION, Defendant. Appeal by LOUIS GROSCLAUDE and OCTAVE D’HAINAUT, Claimants, Appellants.

      Interpleading under laws of 1882, chapter 409 (chapter 10 of the Act)— Ordering pass book to be delivered to the clerk of the court.

    An order of interpleader made under that section which substitutes claimants in place of defendant should not provide for the opening of a new „ account by the defendant to the credit of the action, and that on proof of the opening of such new account, the defendant is entitled to an order striking it out as party defendant; instead thereof the order should require the fund to be deposited in court according to the usual practice in such oases. The fact that the claimants had brought action against the defendant for the same fund does not call for any provision to be made in reference thereto in the order of interpleader. Such an order may require the claimants to deliver up to the clerk of the court the pass-book to await the determination of the action.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided January 5, 1891.
    Appeal from an order. The provisions of the order were as follows :—
    “ It is ordered that Louis Grosclaude and Octave D’Hainaut be, and they hereby are, substituted as defendants in this action in the place and stead of the Union Dime Savings Institution.

      “ It is further ordered that the defendant, the Union Dime Savings Institution, close said account numbered 210,718 in the name of Josephine Laurent and Francois Faivre, and open a new account as a deposit to the credit of this action, under its usual by-laws and regulations and at the interest as shall be declared by the defendant, to await the final determination of this action, to be drawn only upon an order of this court, and made upon notice to all the parties who have appeared herein and only on delivery of the pass-book now held by the claimants herein.
    “ It is further ordered that upon proof being made by an affidavit of a.n officer of the defendant, the Union Dime Savings Institution, of the closing of said account, No. 210,713, and the opening of a new account to the credit of this action, the defendant, the Union Dime Savings Institution, shall be entitled to an order striking out the defendant, the Union Dime Savings Institution, as a party to this action and discharging it of and from any and all liability for the moneys deposited aforementioned, or by reason of any of the matters or things in the amended complaint herein contained, but nothing herein contained shall affect any suit or suits against the defendant which was brought for any cause of action accruing to the claimants before the death of Josephine Laurent.
    “ And it is further ordered that within three days after the entry of this order, Louis Grosclaude and Octave D’Hainaut, the claimants, be, and they hereby are, directed to deliver up to the clerk of this court, to await the determination of this action, the pass-book numbered 210,718, issued by said Institution and representing the deposit in controversy.”

      H. A. Vieu, attorney, and of counsel for appellants, made, among others, the points, rulings on which are stated in the head note.

      Arnoux, Hitch & Woodford, attorneys, and William H. Arnoux of counsel, for respondent, The Union Dime Savings Institution.

      G. A. C. Barnett, for respondent Faivre.
   The Court (per Curiam) in modifying the order and affirming it as modified, wrote as follows: The orders, when modified as hereinafter directed, may be sustained under the General Banking Act of the State of New York, Laws 1882, Chap. 409 (See Chap. 10 of said Act). The provision directing the Union Dime Savings- Insti-. tution to open a new account as a deposit to the credit of this action under its usual by-laws and regulations, etc., should be stricken out, and in place thereof the said Savings Institution sho.uld be required to deposit the fund in court according to the usual practice in such cases. As thus modified the orders- should be affirmed without costs to either party on this appeal.


source: Caselaw Access Project

license: Public Domain

text:
    CLARK R. GRIGGS, Appellant v. MELVILLE C. DAY, et al., as Executors, etc., Respondents.

      On the settlement of the order to he entered on the decision in this case, reported in 58 N- T. Superior Court Reports, page 885.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 5, 1891.

      John McDonald, for appellant.

      William R. Bronk, for respondent.
   The Court (Freedman, J., writing) held, after a further hearing of counsel on the settlement of the order, that in view of the complicated state of the accounts between the parties, the defendant should have a further hearing upon a new trial, and that the order to be entered should provide for the unconditional reversal of the judgment upon the facts .as well as the law, and for a new trial, in accordance with the principles laid down in the opinion reported in 58 N. Y. Superior Court Reports, 385.


text:
    JAMES P. KERNOCHAN, Individually and as Executor, etc., Respondent v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.

      Damages, Evidence—Immaterial refusals to find—Evidence as to what . would have been the rental and fee value of the property had the railway not been built was objected to on the sole ground that it was incompetent— Held, that the objection did not call for the exclusion of the evidence. An expert witness having testified on direct examination as to his opinion of the fee and rental value, was asked on cross-examination whether he had based his opinion in part upon the possibility of the building being used for offices; he replied he had—Held, that a motion by defendant to strike out his direct testimony was properly denied, because, the substance of his testimony was that he based his opinion upon the uses to which the building could be put and among them its use for offices. Defendants' counsel requested the trial judge to make various findings of law on the subject of damages; the requests were refused and exceptions taken. Held, whatever may have been the merits of the requests considered as general propositions of law, yet the refusals were not detrimental to the defendants, since the findings which were made showed that in the award of damage no damages were given by reason of any matter embraced in the requests.

    Before Sedgwick, Ch. J,, and Freedman, J.

      Decided February 13, 1891.
    Appeal from a judgment entered in an equity action, upon the decision of the judge' upon a trial before the court without a jury.

      Davies & Rapallo, attorneys, and Julien T. Davies and Samuel Blythe Rogers of counsel, for appellants.

      G. Willett Van Nest, attorney and of counsel, for respondent.
   The Court held (per Curiam) as stated in the headnote, and affirmed the judgment.


text:
    ANDREW W. SCHELLING, Respondent v. CORD BISCHOFF, et al., Appellants.

      Findings, construction of~In an action for the cancellation of a bill of sale for fraud and false representations, the court below, in the findings, held that the bill of sale wasobtained by means of fraudulent representations specified in the findings. The plaintiff's evidence showed that those representations were not made until after the delivery of the bill of sale. There were other circumstances of fraud found by the court which might suffice of themselves to reqiáre the cancellation of the bill of sale. The judgment was for a cancellation of the bill of sale. Held, that as the findings showed that the judgment was placed rather on the fraudulent representations than upon the other circumstances of fraud, it should be reversed.

    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 2, 1891.
    Appeal from a judgment canceling a bill of sale entered on findings and conclusions made by the judge on a trial at an Equity Term before the court without a jury.

      Uriah W. Tompkins, attorney and of counsel, for appellants.

      James Forrest, attorney, and Peter Condon and G. A. Seixas of counsel, for respondent.
   > The Court (per Curiam) held as stated in the' headnote, and reversed the judgment.


text:
    PETER KEARNEY, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Refusal to find a request to find a conclusion of law on the question of damages, when not error. The court was requested to find as a conclusion of law, that in computing the compensation to be made to the plaintiff for the taking of his easements the defendants were entitled to have taken into consideration the benefits resulting to plaintiff and peculiar, thereto; the court refused the request. Held, no error; the matter.requested was not a conclusion of law. but a mediate process in applying, the rule of measure of damages in ascertaining the damages.

      Finding of the loss in the rental valtie of the premises, effect of. Held, that such finding means the loss on the whole of the building; that all parts of the building had been considered; such parts as to which there had been a loss of rental value, and such parts as to which there had been ' an increase of rental value, and that taking all parts together there had been a loss; that benefits are not to be deducted, from the damages but to be considered in ascertaining whether there were damages.

      Shadows cast by a structure not immediately in front of the premises. Ik was argued by the appellants that the court erred in admitting testimony as to light being cut off by shadows cast by a station which was twenty-five feet south of plaintiff's premises, on the ground that the plaintiff had an easement only directly in front of his premises. Held, that the testimony was properly admitted, that appellants' position was inconsistent with the practical use of a street intending to benefit property upon it, as more light is thrown on a house from the sides than immediately in front.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided March 3, 1891.
    Appeal from a judgment entered upon findings of fact and law made by a judge at an equity term on a trial before the court without a jury.

      Davies & Rapollo, attorneys, and Julien T. Davies and Brainard Tolles of counsel, for appellants.

      Edwin M. Felt, attorney and of counsel, for respondent.
   The Court (per Curiam) held as stated in the headnote and affirmed the judgment, citing Neuman v. Metropolitan Elevated Railroad Co., 118 N. Y. 627, and distinguishing Kings Co. Fire Insurance Co. v. Stevens, 101 N. Y. 417.


text:
    GEORGE HEROLD, Respondent v. THE MANHATTAN RAILWAY COMPANY, et al., Appellants.

      Abstract proposition of law, it is not error to refuse to find on matters , which may be evidence of benefits, a refusal to find them not error. From the fact tjiat after an elevated railroad has been established in front of premises there is no diminution of rental value but on the contrary a . steady increase of it, it does not follow that the lessening of light, air and . convenience of access had not a hurtful effect on the rental value.

    Before Sedgwick, Ch. J., and Dugro, J.

      Decided March 9, 1891.
    Appeal from a judgment.

      Davies & Rapallo, attorneys and of counsel, for appellants.

      Sackett & Bennett, attorneys, and Charles Gibson Bennett of counsel, for respondent.
   1 The Court (per Curiam), in affirming the judgment, held Ms stated in the head-note.


text:
    HENRY BOHLEN, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Omission to note in margin of proposed findings. There were on behalf of defendants thirty-five proposed findings of fact and fifteen proposed findings of law; the trial judge found the thirty-fourth proposed finding of fact and noted it, he then noted the following refusal at the foot of the proposed findings: “To each request the court refuses to find except as found." Held sufficient.

      Effect of evidence—Requests to pass on the effect of evidence is improper practice—A passing on all the requests in a general way is sufficient for all practical purposes.

      Evidence as to damages. Plaintiff called■ as a witness a real estate broker ■ who testified that the present fee value of the property affected as it was by the structure of the elevated railroad and the operation on it of steam railway was a certain sum. Plaintiff then asked him what in his judgment would be the fee value if the property was not so affected; also what

      ■ in his judgment was the fair rental value of the premises as so affected, and what would have been the rental value if they toere not so affected. The questions were objected to. The first question was objected to as hypothetical, speculative and incompetent. To the others there was a general objection specifying no grounds. The objections were overruled.

      The cause was tried by the court without a jury. Abundant evidence of an unobjectionable character was given as to the damage. Defendant asked similar questions in the course of the'trial. Held, no error calling for a reversal of the judgment.

    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 4, 1891.
    Appeal from a judgment.

      Davies & Rapallo, attorneys, and Julien T. Davies and J. C. Thomas of counsel, for appellants.

      Sackett & Bennett, attorneys, and Charles Gibson Bennett of counsel, for respondent.
   The Court (McAdam, J., writing) held as stated in the head-note, on the ground (as to the third proposition) among others, that the case came within the rule that on a trial by the court without a jury improper testimony may upon reflection be disregarded or stricken out without producing any effect or causing any injury whatever.

Sedgwick, Ch. J., and Freedman, J., concurred.


text:
    MICHAEL BERGMAN, Respondent v. THE MANHATTAN RAILWAY COMPANY, et al., Appellants.

      'Jury trial. In an action brought for'both legal and equitable relief in respect of the same cause of action, the case presented is not one of right triable by jury under the Constitution.

    Before Sedgwick, Ch. J., and McAdam, J.

      Decided May 4, 1891.
    Appeal from a judgment entered at the equity term upon the decision of a judge on a trial by the court without a jury.

      Davies & Rapallo, attorneys, and Julien T. Davies and Frank D. Allen of counsel, for appellants.

      Peckham, & Tyler, attorneys, and Charles A. B. Pratt, Jr., of counsel, for respondent.
   The Court (McAdam, J., writing, Sedgwick, Ch. J., concurring) held as stated in the head-note, and affirmed the judgment.


text:
    JAMES H. McGEAN, as Executor, etc., Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Repugnant findings, action of general term in reference to—Where on the argument of an appeal from a judgment entered on findings by a judge on a trial at an equity term before the court without a jury, it appears the findings are so manifestly repugnant to each other as to evidence an oversight on the part of the trial judge to which his attention should be called before a decision of the appeal, the matter will be remanded to the trial judge for such action as he deems proper, and the decision of the appeal will be reserved until the action of the trial judge is officially made known to the general term.

    Before Sedgwick, Ch. J., and McAdam, J.

      Decided May 4, 1891.
    Appeal from judgment as entered, as stated in the head-note.

      Davies & Rapallo, for appellants.

      Roger Foster, for respondent.
   The Court (per Curiam) held as stated in the headnote, citing Bohlen v. Metropolitan Elevated Ry. Co., 121 N. Y. 546.


text:
    DAVID D. SEARLE, Appellant v. JOSHUA W. DAVIS, et al., Respondents.

      Reference—Long account—Where the matters involving the examination of a long account are pleaded both as a defence and a counterclaim, the action is referable.

      Before Sedgwick, Ch. J., and Freedman, J.

      Decided May 4, 1891.
    Appeal from an order of reference.

      Kellogg, Rose & Smith, attorneys and of counsel, for appellant.

      Daniel O'Connell, attorney and of counsel, for respondents.
   The Court (per Curiam) held as stated in the headnote, and affirmed the order.


text:
    AARON ALTMAYER, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants. MARIE T. HAUSER, Respondent v. Same Defendants, Appellants. JOHN BECKER, Respondent v. Same Defendants, Appellants. CHARLES F. HELMS, Respondent v. Same Defendants, Appellants.
    Appeals— Omission in decision of requests found. In the absence of a motion for the correction of the omission and an order thereon, the omission ■ appears to be without objection and a consent is thereby evinced that the cases proceed and appeals be heard on the decision as made.

    Before Sedgwick, Ch. J., and McAdam, J.

      Decided May 4, 1891.

      Appeals from judgments entered on findings and conclusions made by a judge on a trial before the court without a jury.

      Davies & Rapallo, attorneys, and Julien T. Davies and J. C. Thomson of counsel, for appellants.

      Sackett & Bennett, attorneys, and Charles Gibson Bennett of counsel, for respondents.
   The Court (per Curiam) held as stated in the headnote and affirmed the judgments, with costs.


text:
    PATRICK J. BURKE, Respondent v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Appellant.

      Irrelevant matter, striking out—An allegation in an answer “ The defendant reserving the objection that this action cannot be maintained by reason of the fact that the summons herein was not served on the defendant by an officer authorized by law to coiled an execution issued out of the Superior Court of the city of New York and without prejudice by appearing to defend, to its right lo insist upon the objection answers the complaint as follows: ” Held, that the order striking out this matter should be affirmed.

    Before Sedgwick, Ch. J., and McAdam, J.

      Decided May 4, 1891.
    Appeal from an order.

      Page & Taft, attorneys and of counsel, for appellant.

      Henry Wehle, attorney and of counsel, for respondent.
   The Court held (per Curiam) as stated in the headnote, and affirmed the order upon the opinion of Freedman, J., at special term, which was as follows :

“If the objection sought to be reserved by the answer, and which is therein set forth before the statement of the first defence, does not consist of issuable matter, it ought to be stricken out. o

“ If it is intended to be issuable matter and relied upon as a defence, it should be pleaded as such and stated and numbered separately, so that the plaintiff, if he shall see fit, may test its sufficiency by motion or demurrer.

“Upon due consideration of the pleadings I have come to the conclusion that the motion to strike out should be granted, with $10 costs, unless the defendant within twenty days amend the answer by specifically pleading the matter referred to as a defence and by separately stating and numbering such defence and pay the said costs.”


text:
    JOHN C. PEGRAM, et al., as Trustees, etc., Appellants v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Respondents.
    (202-204 Pearl street and 113 Maiden Lane.) The action was for an injunction against defendants, restraining them from using certain easements appurtenant to his premises and for damages. Striking cause from equity term calendar. Only objections taken below will be considered on appeal. At the opening of the trial the plaintiff on cross-examination testified that a year before he had sold the premises to which such easements were appurtenant. The deed was put in evidence. It contained certain reservations. Upon this appearing defendant’s counsel claimed that the action was one at law for damages only and that defendants had a right of trial by jury. The only objection made to this claim was that the right to trial by a jury had been waived, the defendant’s counsel having stated that the existence of the deed was known by them before the trial was begun. Counsel for defendants denied this. It did not appear that defendants knew of the deed before the trial was begun. The defendants’ counsel had not stated to the court that the deed was known to them before the trial was begun. The court simply struck the cause from the equity term calendar. Held, that the ruling of the court was correct so far as was concerned the only objection made to it.
    Before Sedgwick, Ch. J., Freedman, and McAdam, JJ.

      Decided June 1, 1891.
    Appeal from an order.

      Roger Foster, attorney and of counsel, for appellant.

      Davies & Rapallo, attorneys, and Edward C. James of counsel, for respondent.
   The Court (per Curiam) held as stated in the headnote, and affirmed the order.


text:
    MARY SENFT, Respondent v. THE MANHATTAN RAILWAY COMPANY, et al., Appellants.

      Appeal—Objections not taken below, cannot be urged for reversal. An order ivas made allowing a substitution of a plaintiff, and directing that so much of the cause of action in the original complaint as is for equitable relief be continued in the name of the substituted- plaintiff, and allowing the substituted plaintiff to serve a supplemental complaint setting up such cause of action. lx A supplemental complaint was served which set up an original cause of action in favor of the substituted plaintiff; an answer was served to such supplemental complaint. The cause was tried and judgment ordered for plaintiff on a case that supported the supplemental complaint. No motion to set aside the supplemental complaint as not conforming to the order had been made, nor any other proceedings based on that ground taken. On appeal it was objected that it was not com

      petent to try any other case than such as existed at the beginning of the action by the original plaintiff, and that the substituted plaintiff could not recover on a cause of action accrued after the action was begun. This objection was not taken on the trial. Held, that the objection was not available on appeal.

    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided June 10, 1891.
    Appeal from judgment entered upon findings and conclusions made by a judge upon a trial at equity term, before the court without a jury.-

      Davies & Sapallo, attorneys, and Julien T. Davies and Brainard Tolies of counsel, for appellants.

      James B. Ludlow, attorney and of counsel, for respondent.
   The Court (per Curiam) held as stated in the headnote, and affirmed the judgment.


text:
    JAMES S. MERTAGE, Respondent v. SIDNEY A. BENNETT, Appellant.

      ■Bill of particulars, when not ordered. The complaint fully set forth the ■ contract to recover damages for a breach of which the action was brought, and its term, from which it appears that the contract toas made for a certain sp>ecified term, and ai a -rate agreed on, and that under it the plaint- ■ ought to recover for the term specified (except for jhe first two weeks') . -1 at the rate agreed on. Held, that a motion for a bill of particulars \ ■ as properly denied.

    Before Freedman, Dugro and Gildersleewe, JJ.

      Decided July 2, 1891.

      Appeal from an order denying defendant’s motion for a bill of particulars of plaintiff’s claim.

      Sol Kohn, attorney and of counsel, for appellant.

      Isaac L. Sink, attorney and of counsel, for respondent.
   The Court (Freedman, J., writing, Dugro and Gildersleeve, JJ., concurring) held as stated in the headnote.


text:
    JOHN TOWNSHEND, Respondent v. THE MAYOR, ETC., OF NEW YORK CITY, Appellants.

      Upon an appeal from an interlocutory judgment entered upon and in conformity with an order overruling a demurrer (the order not being appealed from) the judgment cannot be reversed.

    Before Sedgwick, Ch. J., and Ingraham, J..

      Decided January 5, 1891.
    • Appeal from an interlocutory judgment overruling a demurrer to the complaint.

      William H. Clark, counsel to corporation, and Woolsey Carmalt of counsel, for appellants.

      John Townshend, respondent, in person.
   The Court (Ingraham, J., writing, Sedgwick, Ch. J., concurring) held as stated in the head-note.


text:
    Sarah J. Pirsson, et al., Respondents v. Oliver M. Arkenburgh, Appellant.
    Decided January 5, 1891.
    Appeal from judgment entered in favor of the plaintiff upon a verdict directed at the trial, and from order denying defendant’s motion for a new trial.
    Robert F. Little, for appellant.
    John Alex. Beall, for respondent.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
   The questions involved were as to the admissibility of parol testimony to add to or vary the terms of a written contract, and also as to the construction of the written contract. The Court affirmed the judgment and order with costs. (Freedman, J., writing, Sedgwick, Ch. J., and Ingraham, J., concurring,) and referring to a former decision in the case reported in 57 N. Y. Super. Ct. Rep. 474.


author: Per Curiam.

text:
    Howard N. Bailey, Respondent v. John Claflin, et al., Appellants.
    Decided January 5, 1891.
    Appeal from judgment entered on report of referee.
    S. F. Kneeland and David Leventritt, for appellant.
    Abram Kling, for respondent.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
   Per Curiam.

Judgment appealed from should be affirmed, with costs, on the opinion in Eckhard v. Epstein, 58 N. Y. Super. Ct. 288.


text:
    Blake & Johnson, Respondents v. Stephen R. Krom, Appellant.
    Decided January 5, 1891.
    Appeal from judgment entered in favor of the plaintiff upon a verdict directed by the trial judge, and from order denying defendant’s motion upon the minutes for a new trial.
    Herbert T. Ketcham, for appellant.
    Michael H. Cardozo, for respondents.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
   The main question involved was as to the sufficiency of the evidence to substantiate a counterclaim. The Court (per Curiam) held the evidence insufficient, and affirmed the judgment and order, with costs.


text:
    Cornelia Gilman, Respondent v. Preble Tucker, Appellant.
    Decided January 5, 1891.
    Appeal by defendant from judgment entered upon findings, etc., at special term.
    Tucker, Hardy & Wainwright, for appellant.
    George H. Fletcher, for respondent.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    The Marinette Iron Works Company, Appellant v. Frank Reddaway, Respondent.
    Decided January 5, 1891.
    Appeal by plaintiff from order vacating attachment on ground of insufficiency of affidavit upon which attachment was granted.
    Lewis Sanders, for appellant.
    Strong & Cadwalader, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

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


text:
    Thomas Adams and Company, (Limited,) Respondents v. Saly I. Mayer, et al., Appellants.
    Decided January 5, 1891.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury and from order denying defendant’s motion for a new trial.
    David Leventritt, for appellants.
    MacFarland, Boardman & Platt, for respondents.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

The issues in this case have been retried in conformity with the decision of this court upon the former appeal as reported in 56 N. Y. Superior Ct. R. 572. Upon a review of the case as now presented none of 'the exceptions taken constitutes, when all the circumstances are considered, sufficient ground for reversal, nór can it be held that the verdict is against the weight of the evidence. The judgment and order should be affirmed, with costs.


text:
    Edward Roberts, Respondent v. The New York Elevated Railroad Company, et al., Appellants.
    Decided January 5, 1891.
    Appeal from judgment entered upon the decision of a judge at special term after trial of the issues.
    Davies & Rapallo, for appellants.
    A. P. & W. Man, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

The judgment should be affirmed, with costs.


text:
    Lena Pappenheim, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided January 5, 1891.
    Appeal from judgment" entered upon the decision of a judge at the equity term.
    Davies & Rapallo, for appellants.
    Sackett & Bennett, for respondent.
    Before Freedman and Ingraham, JJ.
   Per Curiam.

The judgment should be affirmed, with costs.


text:
    Henry Messenger, Respondent v. The Manhattan Railway Company, et al., Appellants. John Messenger, Respondent v. Same Defendants, Appellants.
    Decided February 13, 1891.
    Appeal by defendants' from judgment entered upon findings and decision of a judge on a trial at special term by the court without a jury.
    Davies & Rapallo, for appellants.
    James B. Ludlow, for respondent.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
   Per Curiam.

Judgments affirmed, with costs.


text:
    James P. Kernochan, Individually and as Executor, etc., et al., Respondents v. The New York Elevated Railroad Company, et al., Appellants. (Action No. 2.)
    Decided February 13, 1891.
    Appeal by defendants from order denying them leave to serve an amended and supplemental answer.
    Davies & Rapallo, for appellants.
    G. Willett Van Nest, for respondents.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

Order appealed from affirmed, with $10 costs.


text:
    Daniel Cunningham, Respondent v. The Manhattan Railway Company, et al., Appellants.
    Decided March 2, 1891.
    Appeal from judgment entered on the findings and decision óf a judge on a trial at special term before the court without a jury.
    Davies & Rapallo, for appellants.
    Leo C. Dessar, for respondent.
    Before Truax and Dugro, JJ.
   The main question involved was as to the sufficiency of the evidence to uphold the judgment. The Court (Truax, J., writing, Dugro, J., concurring) held the evidence insufficient and reversed the judgment and ordered a new trial, with costs to the appellants to abide the event,'


text:
    Fred Stone, Respondent v. John Devlin, Appellant.
    Decided March 2, 1891.
    Appeal from a judgment entered on the verdict of a jury and from an order denying a motion for a new trial upon the minutes.

      Horace Graves, for appellant.
    Sandford H. Steele, for respondent.
    Before Truax and Dugro, JJ.
   The Court (Dugro, J., writing, Truax, J., concurring) affirmed the judgment and order. .


text:
    Loring R. Millen, et al., Respondents v. John C. Fogg, et al., Appellants.
    Decided March 2, 1891.
    Appeal by defendants from an order of reference granted on the ground that the trial of the action would involve the taking of a long account.
    Morrison & Kennedy, for appellants.
    Alexander & Green, for respondents.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
   Per Curiam.

Although the only specific allegation that there were no difficult questions of law was made by the plaintiff who was not a lawyer, yet the character of the case, as disclosed by all the papers, showed there were no such questions. Welch v. Darragh, 52 N. Y. 590, and other cases required that the judge below should make the order appealed from. Order affirmed, with ten dollars costs.


text:
    Abraham Kaim, et al., Respondents v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided March 2, 1891.
    Appeal from a judgment rendered after a trial at an equity term of this court.
    Davies & Rapallo, for appellants.
    Sackett & Bennett, for respondents.
    Before Truax and Dugro, JJ.
   Per Curiam.

This appeal presents no new points. Judgment is affirmed, with Costs.


text:
    Diedrich J. Benson, Respondent v. The Manhattan Railway Company, et al., Appellants.
    Decided March 2, 1891.
    Appeal from a judgment entered upon a decision of the court after a trial at an Equity Term.
    Davies & Rapallo, for appellants.
    Leo C. Dessar, for respondent.
    Before Truax and Dugro, JJ.
   Per Curiam.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event, for the reasons assigned by this court in “Cunningham v. the same defendants” decided at this general term.


text:
    William Y. Mortimer, et al., as Executors, etc., Respondents v. The Manhattan Railway Company, Appellants.
    Decided March 2, 1891.
    This is an appeal from a judgment entered upon a verdict of a jury, and from an order denying a motion for a new trial, and also from two other orders that were 'entered during the progress of the action.
    Davies & Rapallo, for appellant.
    John W. Pirsson, for respondents.
    Before Truax and Dugro, JJ.
   Per Curiam.

Judgment and orders affirmed, with costs.


text:
    Christian Weber, et al., Respondents v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided March 2, 1891.
    Appeal from a judgment entered upon the decision of the court at an equity term.
    Davies & Rapallo, for appellants.
    Sackett & Bennett, for respondents.
    Before Truax and Dugro, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    James Hennessey, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided March 2, 1891.
    Appeal by the defendants from a judgment entered upon a decision after a trial at an equity term.
    Davies & Rapallo, for appellants.
    Leo C. Dessar, for respondent.
    Before Truax and Dugro, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Charles Lippe, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided March 2, 1891.
    Appeal from a judgment entered on the findings and decision of a judge on a trial at special term before the court without a jury.
    Davies & Rapallo, for appellants.
    Sackett & Bennett, for respondent.
    Before Truax and Dugro, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Abraham Salomon, Respondent v. The Manhattan Railway Company, et al., Appellants.
    Decided March 2, 1891.
    Appeal from a judgment entered on the findings and decision of a judge on a trial at special term before the court without a jury.
    Davies & Rapallo, for appellants.
    Leo C. Dessar, for respondent.
    Before Truax and Dugro, JJ.
   Per Curiam.

Judgment appealed from affirmed, with costs.


text:
    Alexander Thain, Respondent v. Charles Jones, Appellant.
    Decided March 2, 1891.
    Appeal from an order of reference.
    Alexander Thain, respondent in person.
    John M. Tierney, for appellant.
    Before Sedgwick, Ch. J., and Dugro, J.
   Per Curiam.

Order affirmed, with ten dollars costs.


text:
    Abraham Levy, as Administrator, etc., Respondent v. The Knickerbocker Ice Company, Appellant.
    Decided March 2, 1891.
    Appeal by defendant from judgment entered on verdict of jury and from order denying motion for a new trial made upon the minutes.
    Maclay & Forrest, for appellant.
    Alfred Steckler, for respondent.
    Before Sedgwick, Ch. J., and Dugro, J.
   Per Curiam.

Judgment and order affirmed, with costs.


text:
    Mina Christiana Haegmeyer, Respondent v. The Manhattan Railway Company, et al., Appellants.
    Decided March 3, 1891.
    Appeal from judgment entered upon the decision of a judge at the equity term.
    Davies & Rapallo, attorneys, and Julien T. Davies and Brainard Tolies of counsel, for appellants.
    James B. Ludlow, for respondent.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
   Per Curiam.

The judgment should be affirmed, with costs.


text:
    Mayer Altmayer, Respondent v. The New York Elevated Railroad Company, et al., Appellants.
    Decided March 9, 1891.
    Appeal from a judgment entered on the findings and decision of a judge on a trial at special term by the court without a jury.
    Davies & Rapallo, for appellants.
    Peckham & Tyler, for respondents.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Sigmund Oppenheimer, Respondent v. The Manhattan Railway Company, et al., Appellants.
    Decided March 9, 1891.
    Appeal from a judgment entered on findings and decision of a judge on a trial at special term, before the court without a jury.
    Davies & Rapallo, for appellants.
    Leo C. Dessar, for respondent.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Thomas O’Reilly, et al., Respondents v. The New York Elevated Railroad Company, et al., Appellants.
    Decided March 9, 1891.
    Appeal from a judgment entered on-the findings and decision of a judge on a trial at special term, before the court without a jury.
    Davies & Rapallo, for appellants.
    Sackett & Bennett, for respondents.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Lawrence Lynch, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided March 9, 1891.
    Appeal by defendants from judgment entered upon the findings and decision of a judge on a. trial at special term before the- court without a jury.
    Davies & Rapallo, for appellants.
    Sackett & Bennett, for respondent.
    Before Sedgwick, Ch. J., and Dugro, J.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Samuel S. Hart, Appellant v. James W. Wilder, et al., Respondents.
    Decided March 9, 1891.
    Appeal from a judgment dismissing the complaint oa the -merits entered upon the findings and decision of a; judge on a trial at special term before the court withouha jury.
    Cephas Brainerd, Jr., for appellant.
    Isaac S. Catlin,for respondents.
    Before Sedgwick, Ch. J., and Dugro J.
   The question involved was as‘ to the sufficiency of the evidence to sustain plaintiff’s cause of action. The Court (per- Curiam) held, that as the trial judge had superior opportunities for the determination of serious doubt upon conflicting evidence some deference should be accorded to-it, and that such deference sufficed to impel an affirmance of the judgment, and affirmed the judgment, with costs. -


text:
    Euphemia S. Coffin, Appellant v. Elizabeth Jane Atkins, Impleaded, Respondent.
    Decided April 6, 1891.
    Appeal from judgment dismissing the complaint and awarding costs to defendant Atkins, entered upon the findings and decision of a judge on a trial at special term before the court without a jury.
    Edmund Coffin, Jr., for appellant.
    Daly, Hoyt & Mason, for respondent.
    Before Sedgwick, Ch. J,, Truax and Dugro, JJ.
   The Court (Dugro, J., writing, Sedgwick, Ch. J., and Truax, J., concurring) held, that the evidence was insufficient to sustain plaintiff’s cause of action and affirmed the judgment.


text:
    Lida C. Schwarz, Plaintiff v. The Family Fund Society, Defendant.
    Decided April 6, 1891.
    Before Sedgwick, Ch. J., and Freedman, J.
    Blumenstiel & Hirsch, for plaintiff.
    Charles S. Noyes, for defendant.
   Motionior re-argument denied.


text:
    Jacob H. Deitsch, Respondent v. Frederick Schanning, et al., Appellants.
    Decided April 16, 1891.
    Appeal from a judgment entered Upon a verdict .and from an order denying a motion for a new trial upon the minutes.
    Joseph N. Goldbacher, for appellants.
    Adolph L. Sanger, for respondent.
    Before Truax and Dugro, JJ.
   The Court (Dugro, J., writing, Truax,. J., concurring) held, that the verdict was in excess of what was warranted by the evidence, and reversed the judgment unless the appellant consented to a reduction and in case of such consent affirmed it, without costs,


text:
    Albert Emmitt, Plaintiff v. The Mayor, etc., of the City of New York, Defendant.
    Decided April 16, 1891.
    Plaintiff’s exceptions ordered to be heard in the first instance at general term, a verdiet having been rendered for defendant upon the direction of the court. Hatch & Warren, for plaintiff.
    William H. Clark, counsel to the corporation, for defendant.
    Before Sedgwick, Ch. J., .Truax and Dugro, JJ.
   Prior to April 20, 1888, plaintiff was appointed inspector of masonry on the Aqueduct works, in the city of New York. On April 20,1888, he was suspended for neglect of duty. He was reinstated June 6th, following. On November 28, 1888, he was again suspended, owing to lack of work. He was again put to work February 2, 1889, and continued until July 1, 1889, when he was again suspended. On February 12, 1890, he was dismissed. During the intervals between April 20, 1888, and June 6,1888, and between November 28,1888, and February 2, 1889, and between July 1, 1889, and February 12, 1890, he received no pay. He brought this action to recover the salary for the periods of his suspensions. On the 23d day of January, 1889, he entered into an agreement in writing with the mayor, etc., of New York city whereby he agreed, among other things, that if he should be suspended or discharged for any cause whatever his pay should cease from and after the time of such suspension, subject to the direction of the aqueduct commissioners. Plaintiff contended on the appeal that he was entitled to his salary notwithstanding the suspensions. Defendant contested this, and contended that at all events he could not recover during the periods of suspension following the agreement of January 23, 1889. Plaintiff contested this claim. The Court (per Curiam) held, on the authority of Mullen v. The Mayor, etc., 58 Hun 605, that the bare fact of suspension did not deprive plaintiff of his right to salary; but held that by force of ■ the agreement of January 23, .1889, he was precluded from claiming any salary during the periods of suspension following that date; and sustained the exceptions and ordered a new trial, with costs to abide the event.


text:
    Nathan Bohm, et al., Respondents v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided April 16, 1891.
    Appeal by defendant from judgment entered upon findings and conclusions made at special term.
    Julien T. Dairies and Osgood Smith, for appellants.
    Charles Gibson Bennett, for respondents.
    Before Sedgwick, Ch. J., and Dugro, J.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Peter Somers, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided April 16, 1891.
    Appeal by defendants from judgment entered upon findings and conclusions, made at special term.
    Julien T. Davies and Alexander S. Lyman, for appellants.
    Charles Gibson Bennett, for respondent.
    Before Sedgwick, Ch. J., and Dugro, J.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Cornelia Gilman, Plaintiff v. Preble Tucker, Defendant.
    Decided May 1, 1891.
    George H. Fletcher, for plaintiff.
    Tucker, Hardy & Wainwright, for defendant.
    Before Sedgwick, Ch. J., and Ingraham, J.
   Per Curiam.

Order affirmed, with ten dollars costs.


text:
    George P. Avery, Respondent v. William H. Jacob, Executor, etc., et al., Appellants.
    Decided May 4, 1891.
    Appeal by defendants from a judgment in favor of the plaintiff entered upon the report of a referee.
    E. Luther Hamilton, attorney, and Austen G. Fox of counsel, for appellants.
    E. H. Benn, for respondent.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
   Question of fact involved. The Court (Freedman, J., writing, Sedgwick, Ch. J., and McAdam J., concurring) affirmed the judgment, with costs, on the opinion of the referee.


text:
    Maria Schwartz, Appellant v. The Women’s Mutual Insurance and Accident Co., of America, Respondent.
    Decided May 4, 1891.
    Appeal by plaintiff from order setting aside judgment entered as of default and" compelling plaintiff to receive defendant’s answer!
    Arnoux, Ritch & Woodford, for appellant.
    John A. Kamping, for respondent.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
   The Cotirt (Freedman, J., writing, Sedgwick, Ch. J., and McAdam, J., concurring) modified the order and as so modified affirmed it, without costs to either party on the appeal.


text:
    Samuel W. Regester, et al., Respondents v. Edward Barr Company, Limited, Appellant.
    Decided May 4, 1891.
    Appeal by defendant from a judgment in favor of the plaintiffs entered Upon the verdict of a jury, and from order denying defendant’s motion for a new trial.
    Billings & Cardozo, for appellant.
    Black & King, for respondents.
    Before Sedgwick, Ch. J., and Freedman, J.
   The question involved on the appeal was one of fact which on the trial was sharply litigated and submitted to the jury on three different theories. There was no exception to the charge and no request made to charge otherwise. The jury found a verdict in accordance with one of the theories submitted. The Court (Freedman, J., writing, Sedgwick, Ch. J., concurring) held that the judgment and order should be affirmed, with costs.


text:
    William W. Thompson, Respondent v. The Manhattan Railway Company, et al., Impleaded, etc., Appellants.
    Decided May 4, 1891.
    Appeal from judgment entered on the report of referees.
    Davies & Rapallo, for appellants.
    John A. Weeks, Jr., for respondent.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
   Per Curiam.

It is conceded by the counsel for appellants that the matters on which a reversal is asked have been determined by this court adversely to the defendants. Judgment affirmed, with costs.


text:
    Hattie H. Farrell, as Administratrix, etc., Respondent v. Arthur J. Horgan, et al., Appellant.
    Decided May 4, 1891.
    Appeal by defendants, from judgment entered on verdict of jury and from order denying motion for a new trial made upon the judge’s minutes.
    Edward W. S. Johnston, for appellants.
    Alfred Steckler and Charles Steckler, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

Judgment and order affirmed, with costs.


text:
    George H. Randall, Respondent v. United Life and Accident Insurance Association, Appellant.
    Decided May 4, 1891.
    Appeals by defendant from an order denying defendant’s motion at the trial term to postpone the trialfrom an order denying defendant’s motion to open default and inquest taken, and from an order denying defendant’s motion for a re-argument of the last motion.
    Harry Wilber, for appellant.
    Samuel H. Randall, for respondent.
    Before Sedgwick, Ch. J., and McAdam, J.
   Per Curiam.

The orders are affirmed, with ten dollars costs.


text:
    James J. Gearns, Administrator, Appellant v. The Bowery Savings Bank, Respondent.
    Decided May 4, 1891.
    Appeal by plaintiff from judgment entered on verdict for defendant.
    Titus & Dowling, for appellant.
    Norwood & Coggeshall, for respondent.
    Before Sedgwick, Ch. J., and McAdam, J.
   Per Curiam.

On account of a division of opinion of the judges the judgment is affirmed, with costs.


text:
    Alston Gerry, et al., Appellants v. Louis Cattaberry, et al., Respondents.
    Decided May 4, 1891.
    Appeal by plaintiff from an order denying motion to continue injunction.
    L. Laflin Kellogg, for appellants.
    Arthur C. Butts, for respondents.
    Before Sedgwick, Ch. J., and McAdam, J.
   Per Curiam.

Order affirmed, with ten dollars costs to abide event.


text:
    Frederick Storck, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided May 4, 1891.
    Appeal by defendants from judgment entered upon findings and conclusions at special term.
    Julien T. Davies and Brainard Tolles, for appellants.
    Sackett & Bennett, attorneys, and Charles Gibson Bennett of counsel, for respondent.
    Before Sedgwick, Ch. J., and Dugro, J.
   The question involved was as to the sufficiency of the evidence to require the" trial judge to find certain requests. The Court (per Curiam) held it insufficient and affirmed the judgment, with costs..


text:
    Stephen H. Olin, as Committee, etc., Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided May 4, 1891.
    Appeal from judgment entered upon the decision of a judge at special term.
    Davies, Short & Townsend, attorneys, and Edward B. Thomas of counsel, for appellants.
    John Montgomery, for respondent.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
   Per Curiam.

The judgment must be affirmed, with costs.


text:
    Henry L. Meyer, Respondent v. The New York Elevated Railroad Company, et al., Appellants.
    Decided May 4, 1891.
    Appeal from judgment entered upon the decision of a judge after a trial of the issues at the equity term.
    Davies & Rapallo, attorneys, and Julien T. Davies and Charles H. Peck of counsel, for appellants.
    Leo C. Dessar, attorney and of counsel, and Joseph B. Reilly of counsel, for respondent.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
   Per Curiam.

The judgment should be affirmed, with costs.


text:
    Henry Hyman, Plaintiff v. The Boston Chair Manufacturing Company, Defendant.
    Decided May 4, 1891.
    Before Freedman and McAdam, JJ.
    Samuel F. Hyman, for plaintiff.
    Benjamin E. Hall, for defendant.
   Motion for re-argument denied.


text:
    Frederick K. Keller, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided May 11, 1891.
    Appeal by defendants from judgment entered upon findings and conclusions made at special term.
    Edward B. Thomas, attorney and of counsel, for appellants.
    Edwin M. Felt, attorney and of counsel, for respondent.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
   The question involved was whether certain findings and conclusions were inconsistent. The Court (per Curiam) held, that' on a fair construction they were not, and affirmed the judgment, with costs.


text:
    Elizabeth J. Haynes, Respondent v. Elizabeth W. Aldrich, Appellant.
    Decided June 1, 1891.
    Appeal from judgment entered on verdict directed by the trial judge in favor of plaintiff.
    Spencer Aldrich, for appellant.
    Olin, Rives & Montgomery, for respondent.
    Before Sedgwick, Ch. J., and McAdam, J.
   Per Curiam.

The judgment herein will be affirmed, with costs.


text:
    William L. Cole, Respondent v. The New York Elevated Railroad Company, et al., Appellants.
    Decided June 1, 1891.
    Appeal by defendants from judgment entered on findings at special term.
    Davies & Rapallo, for appellants.
    Peckham & Tyler, for respondent.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    George T. Shambow, Respondent v. The New York, New Haven & Hartford Railroad Company, Appellant.
    Decided July 2, 1891.
    Appeal from judgment entered in favor of the plaintiff upon the' verdict' of a jury, and from order denying defendant’s motion Upon the judge’s minutes for a new trial.
    Page & Taft, for appellant.
    Thomas P. Wickes, for respondent.
    Before Freedman, Dugro and Gildersleeve, JJ,
   The questions involved were as to defendant’s negligence and plaintiff’s contributory negligence. The Court (Freedman, J., writing, Dugro and Gildersleeve, JJ., concurring) held, that under the evidence those questions were properly submitted to thé jury, and that the evidence supported the verdict and affirmed the judgment and order, with costs.


text:
    Paul W. Latham Respondent v. Patrick B. Delany Appellant.
    Decided July 2, 1891.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury and, from order denying defendant’s motion for a new trial.
    E. Louis Lowe, for appellant.
    William C. Davis, for respondent.
    Before Freedman, Dugro and Gilder-sleeve, JJ.
   The question involved was one of fact. The Court (Freedman, J. writing, Dugro and Gilder-sleeve, JJ., concurring) held that the evidence supported the verdict, and affirmed the judgment and order, with costs.


text:
    James Renwick, Respondent v. The New York Elevated Railroad Company, et al., Appellants.
    Decided July 2, 1891.
    Appeal from a judgment entered upon findings and conclusions of a judge on a trial at special term before the court without a jury.
    Davies & Rapallo, for appellants.
    Henry G. Atwater, for respondent.
    Before Freedman, Dugro and Gilder-sleeve, JJ.
   After the commencement of this action, which was for injunctive relief restraining defendants from maintaining or operating an elevated railroad In front of plaintiff’s premises, and for past damages, the defendants instituted condemnation proceedings, procured the appointment of. commissioners, had the value of plaintiff’s easements appraised and had paid the award which the plaintiff had accepted and waived all right of appeal. These facts appeared on the trial. It also appeared that before the trial defendants had moved at special term for leave to serve a supplemental answer and the motion had been denied. The judgment entered below granted the injunctive relief, unless within a time thereby limited defendants produced proof satisfactory to the court that they had caused plaintiff’s easements to be condemned and acquired according to law prior to the date of the judgment. The judgment also awarded past damages. On the appeal defendants’ counsel claimed that by reason of the condemnation proceedings and the action had thereon, the court erred in granting the injunctive' relief and in retaining jurisdiction of that cause of action, for any purpose whatever. The Court (Freedman, J-:, writing, Dugro and Gilder-sleeve, JJ., concurring) held this position of defendants Untenable and affirmed the judgment, with costs.


text:
    Felix A. Duffy, Appellant v. James H. Work, et al., as Executors, etc., Respondents.
    Decided July 2, 1891.
    Appeal from a judgment dismissing the complaint entered upon the findings and decision of a judge at special term. The main question involved. was as to the sufficiency of the evidence to sustain the plaintiffs case.
    Redfield & Redfield, for appellant.
    A. L. Pincoffs, for respondents.
    Before Freedman, Dugro and Gildersleeve, JJ..
   The Court (Dugro, J., writing, Freedman and Gildersleeve, JJ., concurring) held the evidence insufficient and affirmed the judgment, with costs. •"


text:
    Mary Heath, Respondent v. The Broadway and Seventh Avenue Railroad Company, Appellant.
    Decided July 2, 1891.
    Appeal by defendant from judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    Root & Clark, attorneys and of counsel, for appellant.
    Vanderpoel, Cuming & Goodwin, attorneys, and Henry Thompson of counsel, for respondent.
    Before Freedman, Dugro and Gildersleeve, JJ.
   The point involved was as to whether the trial judgé erred in refusing to charge that there was no evidence as to a certain fact in the case. The Court (Gildersleeve, J., writing, Freedman and Dugro, JJ., concurring) held that there was sufficient evidence to carry the cause to the jury on that fact, and affirmed -the judgment and order, with costs.


text:
    Eliza McKernan, Respondent v. The New York Elevated Railroad Company, et al., Appellants.
    Decided July 2, 1891.
    Appeal from judgment entered upon decision of a judge after a trial of the issues at special term.
    Davies & Rapallo, for appellants.
    Jeroloman & Arrowsmith, for respondent.
    Before Freedman, Dugro and Gildersleeve, JJ.
   Per Curiam.

Judgment affirmed, with costs.


author: Campbell, J.

text:
    Nash v. The Mayor, Aldermen, and Commonalty of the City of New York.
    The public administrator of the city of New York is the agent of the corporation of the city, which is liable as principal for his acts within the scope of his authority.
    The corporation is therefore liable to an attorney employed by the public administrator, in suits brought by and against him, for the costs of such suits.
    (Before Doer, Mason, and Campbell, J. J.)
    March 12;
    April 20, 1850.
    This was an action of assumpsit, tried before the Hon. S. B. Strong, one of tbe justices of the supreme court, without a jury, February 19th, 1848. The following fácts were admitted upon the trial:—
    The ■ plaintiff was retained by Eber Wheaton as public administrator, in October, 1835, to ■ prosecute a suit against Philip McCahill, and .the costs of the plaintiff accrued in that suit were taxed in 1847, at one hundred and three dollars and sixty-two cents. There is now a judgment of record in the suit, in favor of the public administrator, for damages and for those costs. The plaintiff was retained by Elisha Morrill, public administrator, to defend a suit brought against him as such, by James Mowatt to recover a fund amounting to $1375, which had been received by the public administrator from the estate of John E. Mowatt, and a judgment for costs was rendered in favor of the administrator. The costs of the plaintiff incurred in and about the defence of that suit were taxed in 1847, at one hundred and five dollars and twenty cents. The plaintiff was retained as attorney by Alpheus Sherman, as public administrator, to prosecute a suit instituted by him against Silas Sutin and others, and the costs of the plaintiff incurred by him in and about the prosecution of that suit were taxed in 1847, at two hundred thirty-three dollars and ninety-six cents.
    Nothing has been received from either of those suits, prosecuted by the public administrator, by the city, or from the estates on account of or against which they have been prosecuted. No suits have been brought or prosecuted against the public administrator by the plaintiff, for those bills of costs or for any one of them.
    The counsel for the defendants moved for a non-suit on the following grounds: — 1. That the public administrator is not an officer of the city of New York, and it is not therefore liable in the first instance for his acts or omissions. 2. That the plaintiff has shown no claim against the city of New York. 3. All the responsibilities of the corporation, for or on account of the public administrator, are specified in 2 R. S. 127, § 43, 42; and the responsibility now sought to be imposed upon them is not embraced in those sections. 4. The responsibility of the city (if any), in this case, is only secondary. No suit can be maintained against the city until the remedy against the public administrator is first exhausted.
    The judge overruled the motion for a non-suit; and directed judgment to be entered for the plaintiff, for four hundred and forty-two dollars and seventy-eight cents, subject to the opinion of the court on a case. The cause was transferred to this court.

      A. Nash, plaintiff in person.

      W. Kent, for the defendants.
   By the Court.

Campbell, J.

This action, was brought by the plaintiff to recover the amount of several attorney’s bills of costs in suits in which the public administrator of New York was either plaintiff or defendant, and the plaintiff -was employed as sueh attorney, to prosecute or defend, and he now claims that the corporation of New York is directly and primarily liable to him for such costs. The cause was tried before Mr. Justice Strong of the supreme court, without a jury, and a verdict rendered by him in favor of the plaintiff for the amount claimed, and is now before us on motion for new trial on a case made. t

Prior to 1815, the chamberlain of the city was constituted the public administrator. In that year, the mayor and aider-men petitioned the legislature for the passage of an act giving to them the power to nominate and appoint a person public administrator; which petition was granted, and they were authorized to appoint, under the common seal of the city, such public administrator. By that law, this officer was authorized to retain five per cent, commission on the estates, for his compensation, and the city was made responsible for .the due administration of the estates, as he held his place at the pleasure of the common council. It does not appear, however, by that law, that the city had any interest in the commissions, the benefit to the corporation being, in holding without interest, the funds of such estates as should remain unclaimed at the expiration of eighteen months.

By the revised' statutes material alterations were made. The salary of the public administrator is now to be paid by the city, and the corporation receives the commission of five per cent., and continues the depositary of’the unclaimed funds. The administrator also gives a bond in the penalty of ten thousand dollars, directly to the mayor, aldermen, &e., conditioned for the faithful discharge of his duties, among which duties is that of paying over, within two days after the receipt thereof, to the credit of the comptroller, jointly with himself, all moneys derived from any estate which may come into his hands. Though the statute declares that he may sue or be sued, the same as any other administrator or executor, it would seem that he must do so at his own expense, unless the corporation, which takes the commission and the funds, be liable. By the 42d and 43d sections, (2 R. S. 128,) the' city is made liable and responsible for all moneys received by the public administrator, and for the faithful execution of his duties; and it is declared, that all persons aggrieved by any unauthorized acts or omissions of such-public administrator, may have the same remedy against the corporation of New York, that they could have against any executor, and further for the protection of the corporation, they are authorized to make such rules and regulations for his government, as they may from time to time deem necessary.

After a careful examination of the law, we have come to the conclusion that it would be difficult to find a more complete case of agency than this: The public administrator, first, is appointed by the common council, and is removable at their pleasure. Second. He gives a bond directly to them, for the faithful discharge of his duties. Third. The emoluments of the office are paid directly into the treasury and belong to the corporation. Fourth. The corporation, from time to time, as they may deem necessary, may make rules for his government.

Now if the 24th section, and the 43 d section were struck out altogether, we are inclined to think the corporation would be equally liable for the acts of their agent. He may sue and be sued as any other administrator. It may often become his duty to prosecute or defend suits. An omission or neglect to do so, might be a neglect or omission of duty, for which he or his bondsmen might be liable. It may be greatly for the benefit of his principal, the corporation, that he should do so. He thereby may preserve or secure a fund, out of which commissions are to accrue, and by which their treasury is increased.

It would seem but reasonable, that the attorney thus employed to prosecute or defend these suits, should be entitled to recover his costs directly from the principal. If the corporation choose, they may limit the power of their agent by rules or regulations adopted in pursuance of the 44th section. By not making such regulations, they leave the matter to his discretion. They may require that no suit be prosecuted or defended, except by express authority given by them in each particular case, or except Tinder the sanction of the corporation counsel. It does not appear that any such rules or regulations have been adopted, and it not appearing but that these suits were prosecuted and defended by the several public administrators in entire good faith, and in what they conceived to be an honest discharge of their duties, and for the interest of the corporation, we are of opinion that the verdict rendered before Mr. Justice Strong, was in all respects correct, and that the motion for a new trial must be denied with costs.


author: Duer, J.

text:
    Scranton v. Baxter.
    The rule that on a motion to set aside the report of a referee, it is to be treated as equivalent to the verdict of a jury in respect of the facts involved, can only be applied when the grounds of the report are explicitly stated by the referee, or from the nature of the controversy are apparent upon the face of the report.
    Where the cause involves several distinct and alternative questions of law and of fact, and his report is general, the court must necessarily act on the free exercise of its own judgment, both as to the law and the evidence.
    A borrower is bound to use extraordinary diligence in the care of the property loaned to him, and is responsible for the slightest neglect. He must exercise all the care and diligence that the most careful persons are accustomed to apply to their own affairs.
    Where a loss ensues, the burden of proof is on the borrower to prove that it was the result of an inevitable accident, or of a wrongful act which, in the exercise of such diligence, could not have been foreseen or prevented.
    (Before Dueb, Mason, and Campbell, J. J.)
    May 17;
    May 25, 1850.
    Motion to set aside the report of a referee. The action was for damages to a horse alleged to have been loaned by the plaintiff to the defendant, which was injured in the street on his way from the borrower to the plaintiff’s stable. The facts, so far as they are necessary to understand the principles laid down, will be found in the opinion of the court.

      J. N. Taylor, for the plaintiff.

      B. Goodman, for the defendant.
   By the Court.

Duer, J.

This is a motion to set aside the report of a sole referee as contrary to law and evidence.

It is frequently said that where a cause involving questions of fact has been submitted to a referee, his report is to be viewed in the same light as the verdict of a jury, and consequently ought not to be set aside unless it is plainly contrary to the weight of evidence; but we must be satisfied, upon a very slight consideration, that this rule can only be applied where the grounds of the decision are explicitly stated by the referee, or from the nature of the controversy are apparent upon the face of the report. Where a case is made in support of a motion for a new trial, the questions of law and fact are carefully separated. The questions submitted to the jury, and the directions given to the jury by the judge, are distinctly stated, and hence, if in the judgment of the court error has intervened, it is referred without difficulty to its proper source. As the questions of fact upon which the jury must have passed are certainly known, it is easy to compare their verdict with the evidence upon .which it was founded, and if there is no just exception to the charge of the'judge, the rule that the verdict ought not to be disturbed unless contradicted by an overruling force of evidence, may be properly invokéd to guide and control the decision of the court. But where a cause, involving several distinct and alternative questions, both of law and of fact, has been submitted to a referee, and his report is general, the case is widely different. It is then impossible to say what has been the actual decision of the referee upon any one of the questions which the parties raised before him. It is even impossible to say whether he has considered at all the only questions that the court, which is called upon to review his report, may deem to be material; and in this uncertainty, the court must necessarily act in the free exercise of its own judgment, and can only sustain the report when the conclusions of the referee correspond entirely with its own views of the law and merits of the case. We have thought it necessary to explain this material, though obvious distinction, since not only in the present case, but in several other cases in which the binding authority of the general rule as applicable to the reports of referees has been strongly urged, it has been wholly overlooked by the counsel of the parties.

The case now to be decided will be found to furnish a very striking illustration of the truth of the observations that we have made. The plaintiff seeks to recover the value of a horse, which he alleges was borrowed from him by the defendant, and received its death wound whilst in his possession, and he insists that it appears from the evidence that the loss for which he claims an indemnity was not the result of an inevitable accident, but might have been prevented by the exercise of that care and diligence which the law exacts from a borrower. The defence is placed upon various and distinct grounds. It is insisted, First, that the evidence is entirely insufficient to prove that the death of the horse was the result of the wound, but renders it highly probable that it was occasioned solely by disease. Second, that assuming the horse to have died from the wound, still the defeDdant is not responsible for the loss, it appearing from the evidence that he was a hirer and not a borrower,. and consequently was only bound to that ordinary care and diligence which he is proved to have exercised; and, Lastly, that considering the defendant as a borrower, the loss must be attributed solely to the wrongful act of a third person, for which he is not responsible, no fault or negligence being justly imputable to him or to his servant. For aught that appears in the report, the decision of the referee in favor of the defendant may have proceeded solely upon the first or second of those grounds, and we cannot therefore assume that he has decided, or even considered the only question of fact that we deem to be material, namely, whether the loss is in any degree attributable to the omission of that extraordinary care and prudence which, it is certain that the law requires from a borrower.

I shall now proceed to state our-own views as to the law and the facts of this case.

If the witness, Manly, is to be believed, and we see no reason to question his truth or the accuracy of his recollection, his testimony excludes any reasonable doubt that the sole cause of the death of the horse was the injury that it received while in the possession of the defendant, and the same witness proves with equal certainty, that the contract between the parties was purely a gratuitous loan — the horse was lent to the defendant at his request, for his personal accommodation, and no compensation was at the time demanded or offered. It is true, that at a later hour in the day the plaintiff was seen to be in the possession and use of a horse belonging to the defendant, but we have no right to infer from this single fact, that an exchange of horses for the day was a condition of the original contract. In our judgment, there is no legal evidence to support the allegation' that the contract was a contract of hiring.

We are therefore clearly of opinion that the defendant was .liable as a borrower, and the rules of law fixing the extent of his liability are exceedingly plain, and are undisputed. He was bound to extraordinary diligence, and was responsible even for the slightest neglect, de ievissima culpa ; he was bound to exercise all the care and diligence that the most careful persons are accustomed to apply to their own affairs, and in his case it is the omission of the most exact and scrupulous caution, that is regarded by the law as a culpable neglect. (Coggs v. Bernard, 2 Ld. Raymond 909 ; Vaughan v. Menlove, 3 Bing. N. C. 468; Pothier, Pret. a Usage, n. 48, 50; Big. Lib. 13, tit. b. 1. 18; Story on Bailments, §§ 237, 238.) He is not excused by showing that the proximate cause of the loss was the wrongful act of a third person, unless it clearly appears that the act could not have been foreseen or prevented, and that no fault or neglect of the defendant or his servant contributed in any degree to create or enhance the peril. (Story on Bail. §§ 241, 268.) Although the horse was borrowed by the defendant for his own personal use, we do not doubt that he was justified in returning him by a servant, notwithstanding it seems to be clear, that had he permitted a servant to ride the horse during the day, he would have been responsible for any loss, however inevitable, that might then have happened; (Bringloe v. Morrice, 1 Mod. R. 210; S. C. 3 Salk, 271; Story on Bail. § 235;) but he was bound, in returning the horse, to employ an agent or servant upon whose skill, experience, and prudence he could place an entire reliance, and the servant thus employed, and for whose acts and omissions the master was responsible, was bound to the same extraordinary care as the master himself.

The defendant sent the horse to the plaintiff in charge of a negro boy, and it is extremely doubtful upon the evidence, whether this boy was a proper agent to be employed on such a service ; it is very doubtful whether he was such an agent as a very careful person would have employed; and it must be remembered that this is the true and only test. It is also very doubtful upon the evidence whether the boy, .in returning the horse, followed the safest route, and still more so, whether, at the time of the supposed accident, he exercised all necessary care to escape from the impending peril. He seems to admit, in his testimony, that there was a mode by which the danger could have been avoided, had he thought of it at the time, and it is difficult not to construe his evidence as an admission of his own neglect. Want of thought is a synonyme for carelessness.

We are riot to be understood as expressing a positive opinion in relation to facts, which we think have not been fully investigated, and which it will be the province of a jury hereafter to decide; but were we bound to give a final judgment upon the case as it stands, we should be compelled to say, that the only defence that can be justly relied on is not sustained by the requisite proof. We are by no means satisfied that the loss for which the plaintiff seeks a compensation was the result of an inevitable accident, or of a wrongful act that could not have been foreseen or prevented, and it is upon the defendant that in our judgment the law casts the burden of proof

Entertaining these views, it is our plain duty to set aside the report in favor of the defendant, and we think also to vacate the order for a reference; the case as it now appears being manifestly one of those that are more properly left to the determination of a jury than of a referee. The costs of this motion and of the reference must abide the event.


author: Mason, J.-

text:
    Brown v. De Selding and others.
    It is not necessary, in order to the proper execution of a will, under the revised statutes, that the witnesses who attest the same should have been requested in terms by the testator to attest its execution. The request may be implied as well as expressed.
    Where witnesses are sent for by the attendants of the testator, in his presence anil without objection, and upon their introduction he sets himself to the execution of the will, and delivers it, when executed, to the witnesses, in order that they may sign it, and they do sign it in his presence, he thereby adopts the acts of the attendants, and makes their request his request, within the spirit and meaning of the statute.
    No particular form of words is necessary in the publication of a will, in order to comply with the statute. It is sufficient if the requisitions of the statute are complied with in substance. There must, however, be a declaration by the party, to the attesting witnesses, that the instrument witnessed is his will.
    Where the testatrix, at the time of the execution of the alleged will, merely asked “ where was the proper place for her to sign,” the will not having been read by her nor to her, nor any thing said concerning its contents, nor any thing said or done by her in the presence of the attesting witnesses, by which she indicated that the paper subscribed by her was her will; held, that the instrument was not declared or published as a will within the meaning of the statute.
    (Before Duna, Mason, and Campbell, J. J.)
    May W;
    May 25, 1850.
    This was an appeal from a decree of the surrogate of. the county of New York, admitting to record and probate, the will of Ilerriott Brown, deceased.
    The facts of the case, as they appeared in the testimony, were as follows: Miss Ilerriott Brown, the testatrix, died in the city of Washington, op. the first day of July^ 1847. At the time of her sickness and death, she resided with Charles De Selding, one of the respondents, who had married her sister Helen, and who, together with the appellant, were her only heirs and next of kin. The execution of the alleged will took place “ on one of the last days of June,” 1847, at the residence of the respondents. The instrument is drawn in favor of Julia De Selding and Charles E. E. GK De Selding, minors, the children of Helen De Selding, with an interest by way of remainder, to their mother, in case of their death without issue. Mr. De Selding was made executor. The attesting witnesses were William P. Johnston and Alexander N. Zevely, who were examined under a commission issued by the surrogate. The witness, Johnston, was the attending physician of Miss Brown during her illness, which lasted eight days. His visits during this time were very frequent. At one of these visits, within four or five days of her death, he found Mrs. De Selding in the room with Herriott Brown, who was lying in bed. Mrs. De Selding said to the witness, that her sister wished to sign a will. Dr. Johnston remarked, if she wished to do so, it would be best to have another witness, and that she had better execute it at once, and thereby relieve her mind. Nothing was said by Herriott Brown, nor did she join in the conversation. Dr. Johnston remarked that he would step out and call in another person to be a witness. He did so and brought in Alexander N. Zevely, who came in at the doctor’s request, and signed the instrument as a witness. Mr. Zevely had never before seen Miss Brown, and never saw her after this occasion. When Dr. Johnston returned with Mr. Zevely to the house of Mr. De Selding, he left Mr. Zevely in the parlor and went to the room of Miss Brown. When he entered the room, the instrument in question was lying upon the table. The doctor informed Miss Brown that it would be necessary for her to get up and sit at the table to sign it. The language used by the doctor was, that if “she wished to sign,” or “ to sign her will,” but which was the precise expression, he was unable to state. Miss Brown was accordingly assisted to the table, where the paper was then lying. When Mr. Zevely came into the room, he was introduced to Miss Brown and Mrs. De Selding, by the doctor. Miss Brown inclined her head in recognition, but did not speak. Prom a difficulty in her breathing, it was apparently hard for her to talk. Soon after, or at the time of his introduction according to Mr. Zevely’s testimony,’ Doctor Johnston mentioned to Miss Brown, that Mr. Zevely was a person whom he had invited to come in and witness her signature to her will. Johnston, in his testimony, stated all the conversation which he remembered, but did not give this remark. He testified “that Miss Brown inquired “ where she must sign the will, and on the place being pointed out, took the pen and signed.” Mr. Zevely testified, “she distinctly asked where the proper place was for her to sign.” In a subsequent portion of his testimony he spoke of “her question about where to sign,” and ■in another, of “her asking the question about the place where to sign’the will.” The will was signed in the' presence of Dr. Johnston, Mr. Zevely, and Mrs. De Selding, the two former of whom thereupon signed their names as witnesses in the presence of. Miss Brown, and of each other.
    No conversation took place between the witness, Zevely, .and Miss Brown, at the time the instrument in question was signed, and none other than what is above specified, occurred between her and Doctor Johnston, nor- was there any conversation on the part of Mrs. De Selding, except in reference to other matters. The instrument was not in the handwriting of Miss Brown, and nothing was said as to who had written or prepared it. Nothing was said by her as to its contents, nor did she read it, or have it read to her. The execution of it throughout was conducted by Mrs. De Selding. Both of the witnesses testified to Miss Brown’s capacity and soundness of mind, and that she acted like one who /understood perfectly what she was doing.

      I. Dayton, for the appellant,
    argued the following points:
    I. The will was not executed according to the statute, prescribing the manner of the execution of wills. (2 E. S. 63, § 32 (sec. 40); Brinckerhoff v. Remsen, 8 Paige, 488, 498; Remsen v. Brinckerhoff, 26 Wend. 325, 331, 336, 337; Chaffee v. Baptist Missionary Convention, 10 Paige, 85, 92.)

      II. The instrument in question not being in the handwriting of the deceased, and its execution haying been conducted in her last illness, by Mrs. De Selding at her residence, who, by her children, or herself, takes under it the whole property of the deceased to the exclusion of her other sister, equally entitled by kindred, the testimony in the cause was not sufficient to establish it as the will of the deceased.
    In such cases the law requires in addition to evidence of capacity, that there should be proof either of previous intentions to make the dispositions contained in the alleged will, or of instructions, or of reading it over at the time of the execution, or of subsequent recognition of the provisions of the instrument. (Swinburne, Part 2d, sec. 25, 7th ed. vol. 1, pp. 187,188; Taylor on Evidence, 108, sec. 105; Brogden v. Brown, 2 Add. 441; Billinghurst v. Vickers, 1 Phill. 187; Paske v. Ollatt, 2 Phill. 323; Ingram v. Wyatt, 1 Hagg. Eccl. Rep. 384; Marsh v. Tyrrell, 2 Hagg. Eccl. Rep. 84; Panton v. Williams, 2 Curteis Eccl. Rep. 530, 535; Barry v. Butlin, 2 Moore Priv. Coun. Cas. 480; Dufain v. Croft, 3 Moore Priv. Coun. Cas. 145; Harwood v. Baker, 3 Ib. 282; Tomkins v. Tomkins, 1 Bailey South Car. Rep. 96; Alston v. Jones, N. Y. Gren’l Term, June, 1848; Crispell v. Dubois, 4 Barb. S. C. Rep. 393.)
    III. Both the witnesses to the instrument in question, residing without the jurisdiction of this State, the surrogate had not jurisdiction to take the proof of the instrument as a will of real estate. 2 R. S. 66, § 78 (sec. 63).

      H. Ketchum, for the respondent,
    argued the following points:
    I. The will was proved to have been executed in a manner substantially to comply with all the requisites of the statute. (Remsen v. Brinckerhoff, 26 Wend. 325; Rutherford v. Rutherford, 1 Denio, 33; Butler v. Benson, 1 Barb. S. C. R. 534; Doe v. Roe, 2 Ib. 200; Seguine v. Seguine, Ib. 385; Robertson v. Carr, 8 Ib. 416; Chaffee v. Baptist Missionary Convention, 10 Paige, 85; Jauncey v. Thorn, 2 Barb. Ch. R. 40; Nelson v. McGiffert, 3 Barb. Ch. R. 162 ; Crispell v. Dubois, 4 Barb, 394.)
    II. The capacity of the testatrix was abundantly proved.
      (Stewart's Ex. v. Lispenard, 26 Wend. 255; Blanchard v. Nestle, 3 Denio, 37.)
    III. The will is just such a will as the testatrix would be expected to make, considering all the circumstances.
    IY. The surrogate had complete jurisdiction in the case, and the will has been properly received to probate as a will of real and personal estate. (2 R. S. 60, § 23; Laws of 1837, 524, chap. 460, § 1; 2 R. S. 67, § 63; Laws of 1837, 537, chap. 460, § 77; Dayton on Surrogates, 38.)
   By the Court.

Mason, J.-

-The thirty-second section of the statute of wills, enacts that every last will and testament shall be executed and attested in the following'manner:

1. It shall be subscribed by the testator at the end of the will.

2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses.

3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament.

4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator. (2 R. S. 63.)

In the case before us, the will was subscribed by the testatrix at the end of the will, in the presence of two attesting witnesses, each of whom signed his name as a witness at the end of the will; and the only questions are, 1st, Did each so sign at the request of the testatrix ? and, 2d, Did the testatrix, at the time of such subscription, declare the instrument to be her last will?

As to the first question; It is not necessary that the testator should in terms, request the witnesses to attest the execution. The request may be implied as well as expressed. If they are sent for by his attendants in his presence and without objection —if upon their introduction he sets himself to the execution of the will, and delivers it when executed, to the witnesses, in order that they may sign it, and they do sign it in his presence, he thereby adopts the acts of his friends, and makes their request his request, within the spirit and meaning of the statute. ’ This was so held in Doe v. Roe, 2 Barb. S. C. R. 200. It v^as stated in that case, to the witnesses, in the testator’s presence, that they had been sent for, for the purpose of being witnesses to the will, and they subscribed their names as wit-messes, after the will with the attesting clause had been read to the testator, and signed by him in their presence, and it was held that there was sufficient evidence to be submitted to a jury, upon the question whether there was a request or not. The same point was decided in Rutherford v. Rutherford, 1 Denio, 38.

The testatrix in this case made no formal request to the witnesses. She appears to have been entirely silent. But when Mrs. De Selding stated to Dr. Johnston, the physician, that her, sister wished to execute a will, he said, if she wished to do so it would be best to have another witness, and he went out immediately and brought in Mr. Zevely, the other witness. The testatrix made no objection then, nor when the doctor returned, on the contrary, she got up and went to the table where the will was lying. Upon Mr. Zevely’s coming into the room, after she was seated at the table, he was introduced to her by the doctor, as a person whom he had invited to come in and witness her signature, to the will, and she bowed her head in recognition, and then distinctly asked where she must sign, according to Zevely’s testimony, or according to Dr. Johnston’s where she must sign the will. She then signed it in their presence, and they signed their names as witnesses. There can be no doubt from all the circumstances, that she assented to and adopted the acts of her sister and Dr. Johnston in relation to the latter witnessing and inviting Mr. Zevely to witness the execution; and this^ratification and adoption is clearly equivalent to an express request by her.

The next question is — Did she declare the paper to be her last will and testament in the presence of the witnesses ? It has frequently been decided that no particular form of words is necessary in the publication of a will in order to comply with the statute. It is sufficient if the requisitions of the statute are complied with in substance. (Nelson v. McGiffert, 3 Barb. Ch. R. 163; Remsen v. Brinckerhoff, 26 Wend. 332.) In Doe v. Boe, 2 Barb. S. C. R. 200, before cited, the will was read over to the testator, and he was asked if that was his will and testament, to which he answered in the affirmative, and then signed it; and the court held that this mode of declaring the instrument to be his will, was a substantial compliance by the testator with the statute, but it is definitely settled by the court of dernier resort, in Remsen v. Brinckerhoff, that there must be some communication to the witnesses by the testator, indicating that he intended to give effect to the paper as his will; and, therefore, the court in that case held, that although the testatrix acknowledged before the witnesses her signature to the instrument for the purposes therein mentioned, yet as she did not say it was her will, it could not be upheld without a repeal of the statute. Now in this case, nothing whatever was said by the testatrix, except the single question where she must sign. Dr. Johnston says she asked where she must sign the will; but it is evident that he does not intend to give the exact words. Mr. Zevely says she distinctly asked “ where was the proper place for her to sign.” But the will was not read to her before signing it, nor did she read it, or say any thing concerning its contents, nor was any thing said or done by her in the presence and hearing of the witness Zevely, by which she signified to him that the paper subscribed by her was her last will; she merely signed the paper, and did not even acknowledge her signature, as was done by Mrs. Brinckerhoff. It is true that the witness understood from what passed, that the instrument was a will, and that such was her understanding also; but there was no recognition of it as her will in Zevely’s presence, beyond the simple signature, nor in the presence and hearing of Dr. Johnston, unless she used the word “ will” when she asked about the place to sign.

It is fairly to be inferred in the case of Mrs. Brinckerhoff, that all parties also understood tbe paper to be a will; one of tbe witnesses put his residence opposite to bis name, and the testatrix remarked to the other witness that be bad not done so, and required him to do it, wbicb would have been unnecessary in attesting tbe execution of any other instrument. But yet tbe court held tbe acknowledgment to be insufficient. If we should bold tbe mere signing of a will of any act equivalent to it, without any declaration either before or after signing in tbe presence and bearing- of each of the witnesses, to be a sufficient publication, we should disregard tbe plain letter of tbe statute, wbicb requires that tbe testator shall, at tbe time of making the subscription, declare tbe instrument to be bis last will. Tbe utmost that can be said of this case is, that tbe conduct of tbe testatrix implied tbe instrument to be her will But no declaration of any kind is pretended. We do not see bow it is possible to get over this defect.

' It is not without considerable hesitation that we have arrived at this result. We have no doubt, from tbe evidence, that tbe deceased was fully competent to make a will, and under tbe law as it now exists in England, and as it was understood in this state before tbe passage of tbe revised statutes, this will would have been held to have been duly published. But tbe revised statutes have somewhat altered tbe rule, and tbe alteration is, we think, wise and salutary. Whether it is so or not, it is our duty to carry out tbe provisions of tbe statutes on this subject in their letter and spirit. If we are mistaken an our application of them to tbe present case, we are happy to know that our mistake can be corrected by a higher tribunal.

Tbe decree of tbe surrogate is erroneous, and. must be reversed, and a decree must be entered declaring the invalidity of tbe instrument propounded as a will, and that tbe decedent died intestate. Costs of both parties, both in this court and the court below, are to be paid out of the estate when letters of administration shall have been granted, and the- proceedings-are to be remitted to the surrogate of tbe county of New York, to tbe end that administration may be granted as in cases of intestacy.


author: Oakley, Ch. J.

text:
    Jellinghaus v. The New York Insurance Company.
    By the provisions of a.policy of insurance'on merchandise, if there he a partial loss by sea damage, the loss shall be ascertained by a separation and.,sale of the portion of.the. goods so damaged. On the arrival of goods thus damaged, the underwriters designated an auctioneer to sell them, and requested the insured ■ to prepare them for sale, and paid him therefor. The insured sent the goods to the auctioneer, they were sold ■ as for account of the underwriters, and the auc- . tioneer failed, without paying over the proceeds to either party. Held, that the auctioneer was the joint agent of the underwriters and the insured, and the former were not responsible to tlie latter for the loss by his failure.
    ■'(Before Oaklet, Ch. J., and Paine, J.)
    May 22;
    May 25, 1850.
    This was an' action to recover ■ from- tbe defendants the amount arising npon a sale of merchandise, insured by them upon, .a voyage 'from Bremen to-New York, and wbicb having been damaged upon tbe voyage, had been sent to an auctioneer to be sold, in accordance with- a condition of tbe policy. Subsequent to tbe sale,.tbe auctioneer failed and did not pay over tbe. proceeds: of the sale to either party.
    . ..Tbe. cause came on for trial before Yanderpoel, J;, on tbe 20th day of .October, 1849.
    Upon tbe .trial it was admitted, tbat an open policy of insurance for $100,000 was made by tbe defendants' with Spies, Christ &.,0o.; .on account of whom it might concern, .on all merchandise on'board vessels from Bremen, and certain other ports, to New York.. That in July, 1848', .46 cases of hardware, covered by tbe.policy and belonging to tbe plaintiff, were shipped from'Bremen to,-New York, on board tbe Charlotte Reed; tbat the hardware, on its arrival, was delivered to an agent of the plaintiff;, that-8.5 of the .cases were damaged by sea water; and that Spies,-.Christ &. Co. assigned to-the plaintiff their right to damage unden.the, policy; It was .also admitted.that the amount of-.,damage.had been agreed, upon only with'reference to 8 of the cases, and that the balance óf the cases were sold at auction Sept. 21, 1848, to ascertain the loss, and brought upon the sale $2357.14. The auctioneer’s charges and other expenses of sale were $126.84. ' * •
    The policy in question formed a part of the complaint, and contained the following clause: “ In case of partial loss by sea damage to dry goods, cutlery, or other hardware, the loss shall be ascertained by a separation and sale of the portion only of the contents of the packages so damaged, and not otherwise, and the same practice shall obtain as to all other merchandise as far as practicable.”
    It appeared by the testimony, that the defendants, designated the auctioneer, and directed the plaintiff’s agent to clean up the hardware preparatory to a sale under this clause, and that the agent after so preparing it, sent it to the auctioneer; that the sale was advertised to be,“on account of underwriters;” that the account in the books of the auctioneer was entered in their name, and the account of sales rendered to them; and that they paid the agent of the plaintiff for preparing the goods for the sale:
    The evidence having closed, the court charged the jury that the case depended upon the question whose agent was the auctioneer in selling the goods; that although there might be ho liability on the part of the defendants as owners, it might be that they had made themselves responsible as custodians of the goods; that if, however, there was a joint employment, or if the auctioneer was the agent of the plaintiff, the verdict must be for' the defendants; but that if the defendants had taken the goods out of the custody of the plaintiff, and had exercised dominion over them, employing their own agent as auctioneer, the plaintiff was entitled to recover. The defendants excepted.^
    The jury found a verdict in favor of the plaintiff, and the defendants appealed.

      B. Emmet, for the defendants.

      B. D. Silliman, for the plaintiff.
   By the* Court.

Oakley, Ch. J.

The policy of insurance upon the plaintiff's goods contained a special provision, that “ in case of partial loss by sea damage to dry goods, cutlery, or other hardware, the loss shall be ascertained by a separation and sale of the portion only of the contents of the packages so damaged, and not otherwise, and the same practice shall obtain, as to all other merchandise as far as practicable.”

The parties were unable to agree as to the extent of the damages sustained by the plaintiff on a part of the goods, and his agent was notified that the company required such part to be sold, in order to ascertain the loss. The company designated an auctioneer, and told the agent to clean up the goods preparatory to the sale. They were sent by him to the auctioneer, and were sold. On the amount of sales being ascertained, the agent sent a bill to the company, stating the amount of the loss claimed, after deducting the proceeds of the sale at auction; in this bill the auctioneer’s commissions and other expenses were added to the balance left after deducting the proceeds, and appear to have been paid by the plaintiff. The auctioneer failed, and did not pay over the proceeds.

Upon this state of facts the plaintiff claimed that the defendants had taken the goods in question out of his hands, employed théir own auctioneer, directed as to the time and terms of sale, and controlled the whole affair, and that therefore the auctioneer was their agent, and the loss by his failure devolved upon them.

On the other hand, the defendants claimed that there was no abandonment of the property to the underwriters, that the goods were in the possession of the plaintiff at the time of the sale, and were sold as his, and that the loss was his.

The judge at the trial left it to the jury to decide whether the auctioneer was the agent of the plaintiff or of the defendants, or of both parties; and he instructed them that if he were the agent of the defendants in the transaction, and not of the plaintiff, the defendants were responsible for the loss arising from bis failure.

We have considered the subject, and we think, that apart from any. agreement to the contrary, the appointment ■ of an auctioneer to sell the property in question, under the provisions of the policy for that purpose, must be deemed in law to be the joint act of the parties, and of course .the defendant would not be responsible to the plaintiff for the loss sustained by his failure. The plaintiff, therefore, cannot succeed in this action, without showing that the defendants took the goods as their own, and sold them as their own, and,, in our judgment, the evidence in the case falls far short of making out that fact. The verdict of the jury is therefore wrong, and must be set aside, and a new trial granted.