author: Barrett, J. :

text:
    SAMUEL I. ARKUSH, Respondent, v. JAMES HANAN and Others, Appellants.

      Master .and servant — discharge of servant — the master is not limited to proof of specific acts of insubordination by the servant, but may show any facts justifying his discha/i'ge — the appellate court will not consider the reasons which controlled the trial justice in allowing or disallowing amendments to a proposed case.

    In an action brought by one who had been discharged, as it was alleged, unjustly, from the employment of a firm, the employers are not limited to proof of a specific charge of the rudeness of their employee to a particular customer, stated by them to the employee as the ground for his discharge, but may, under general allegations in the answer of improper conduct, show that the discharge was justified by any sufficient cause.

      The General Term has nothing to do 'with the reasons which actuated a circuit judge in allowing or disallowing amendments to a proposed case; and such reasons cannot he considered on the hearing, upon the merits, of an appeal from the judgment.
    Appeal by the defendants, James Hanan, John H. Hanan and John F. Edwards, from a judgment, entered in the office of the cleric of the county of New York on the 13th day of December, 1890, in favor of plaintiff; and also from an order, entered in said office on the 2d day of January, 1891, denying the defendants’ motion for a new trial, after a trial had at the New York Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $6,767.28.
    Also from so much of an order, entered in said clerk’s office on the 7th day of April, 1891, settling the case in the above-entitled action, as directed “ that proposed amendments thirteenth, fourteenth, fifteenth, sixteenth and seventeenth, and the disallowance thereof, together with the memorandum of the trial judge, filed February 24, 1891, with such disallowance, and the affidavit of "William J. G-aynor, verified February 17,1891, submitted with the said proposed amendments and the affidavit of Samuel Greenbaum, verified March 23, 1891, be also filed, and that the same be added to the said case and printed with it.”

      William J. Ga/ynor, for the appellants.

      Samuel Greenbaum, for the respondent.
   Barrett, J. :

The order last referred to in the above statement should be reversed and the entire supplement to the case, directed by this order to be printed, should be expunged from the record. With the disallowance of the proposed amendments, the controversy, with regard to their subject-matter, was ended. The appellate court has nothing to do with the reasons which actuate a judge in his allowance or disallowance of amendments to a proposed case, and such reasons cannot be considered upon the merits of an appeal from the judgment. As to the affidavits of the attorneys, they simply incumber the record. We must take the case as settled, and that only, and dispose of the appeal upon the record as thus made up. We now come to the merits of the main appeals.

The defendants are manufacturers of boots and shoes. Prior to the 14th of December, 1887, they decided to open a retail store, and on that day they entered into an agreement with the plaintiff whereby he was to act as superintendent of this retail store until the 1st day of February, 1891. In the latter part of December, 1888, the defendants discharged the plaintiff, and this action is because of that act. In their answer the defendants justified their discharge of the plaintiff upon three grounds. First. That he treated their customers in a rude and offensive manner, and spoke to them arbitrarily and disrespectfully, thereby injuring the business of the defendants. Second. That he treated one Acton, a customer of the defendants, with especial rudeness, going so far in a dispute which he had with this person as to call him a cur and to tell him to get out of the store. Third. In refusing to give the defendants any explanation of his conduct in thus ill treating Acton.

The case seems to have been tried upon the theory that because the defendants, in dealing with the plaintiff, specified this latter offense as the ground of discharge, they could not afterwards justify their act by showing other misconduct. This is not the rule which governs in actions of this chai’acter. In justifying the discharge the defendants were not confined to the cause originally assigned. They could show that the discharge was justified by any sufficient cause. (Harrington v. First National Bank of Chittenango, 1 Thompson & Cook, 361, citing Cussons v. Skinner, 11 Mees. & Wels., 161; Ridgway v. Hungerford Market Company, 3 Ad. & Ellis, 171, and Baillie v. Kell, 4 Bing. [N. C.], 661; Green v. Edgar, 21 Hun, 414; Wood’s Master and Servant [2d ed.], § 121.) As was said by Patteson, J., in Ridgway v. Hungerford Market Company (supra) : “ If a justifying cause exists, the master may assign it whenever the action is brought.”

The case here turned entirely upon the right to discharge the plaintiff because of his refusal to explain why he had ill treated Acton. The defendants, however, offered to prove the misconduct specified in the first ” and second ” grounds above enumerated, but their testimony on these points was ruled out and an exception ■duly taken. We think this was error. Without passing, therefore, upon the other questions presented, as to some of which we have .serious doubts, the judgment and order denying a motion for a new trial should, for the error pointed out, be reversed and a new trial granted, with costs to the appellants to abide the event. The order directing certain papers to be added to the case and printed should be reversed, with ten dollars costs and the disbursements of printing the same.

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

Judgment and order denying motion for new trial reversed and a new trial granted, with costs to the appellants to abide the event. The order directing certain papers to be added to the case' and printed, reversed, with ten dollars costs and the disbursements of printing the same.


source: Caselaw Access Project

author: Patterson, J.:

license: Public Domain

text:
    PATRICK MATTHEWS, Respondent, v. JACOB HERDTFELDER and Another, Appellants.

      Practice — new trial granted aften' the motion therefor has been once denied and judgment has been entered.

    Where a motion for a new trial is made by the plaintiff and denied, but no order is entered thereon, and the defendant enters judgment, and subsequently and at the same term of the court the trial justice grants the motion for a new trial, his order granting the new trial is valid.
    Upon the trial of an action the defendant had a verdict which was rendered and recorded February 18,1890. The plaintiff made a motion for a new trial which, on the same day, was denied. The clerk of the court made an entry upon his minutes to that effect, but no order of the court in the premises was ever signed or filed. Judgment in favor of the defendant was entered by the clerk on February twenty-first. On the twenty-fifth of February the plaintiff asked for a reargument of the motion for a new trial, which request was granted, and on the twenty-seventh of February, and at the same term of the court, a new trial was granted.

      Held, that, notwithstanding the entry of judgment by the defendant, the trial justice, no order having been entered, had the matter of a new trial still before him, and had the power, in furtherance of justice, to grant the motion.
    Appeal by the defendants, Jacob F. Herdtfelder and Frances P. Specht, from an order entered in the clerk’s office of the county of New York on the 25th day of March, 1890, whereby the verdict in this action, rendered February 1Y, 1890, and all subsequent proceedings based thereon, were vacated and set aside, and a new trial was granted to the plaintiff.

      Thompson Eoss, for the appellants.

      Q. W. Wilson, for the respondent.
   Patterson, J.:

This is an appeal from an order made at circuit, and granting a new trial to the plaintiff, after a verdict in favor of the defendants, and under the following circumstances: When the verdict was rendered and recorded the motion was made for a new trial under section 999 of the Code of Civil Procedure. The minutes made by the clerk state, among other things, motion for a new trial denied.” That was on the 18th of February, 1890. No order of the court was ever signed or filed on this motion. Judgment in favor of the defendants was entered by the clerk, as is usual in common-law cases, on the 21st day of February, 1890. On the twenty-fifth day of that month the plaintiff asked for a reargument of the motion, which was had, and on the twenty-seventh, being at the same term of the court, the motion was granted, and ■ an order duly and formally entered.

There was no such final or absolute disposition of the motion as deprived the judge at circuit of jurisdiction to reconsider his ruling. The term of the court had not expired — no final order had been entered, and he was at liberty, in furtherance of justice, to reconsider a mere formal ruling, and, on being convinced of his error, to put the parties in a situation that justice might be done. The fact that, intermediate the trial and the motion for reargument, judgment had been entered, does not affect the question. In the case of Voisin v. The Commercial Insurance Company (56 Hun, 215), we held that an appeal to the General Term from an order granting or refusing a new trial in an action tried before a jury might be taken, notwithstanding judgment had been entered against the appellant, and the time to appeal therefrom had expired; and our views in that case were sustained by the Court of Appeals. (123 N. Y., 120.) Here we have merely a decision announced without an order to make it obligatory or final, and while it was in that condition the judge, convinced that he had committed an error, and while the matter ■was still before him, considered it his duty to recall his decision and make an order that would prevent a failure of justice.

Passing from the question of power to make the order granting the new trial, and if we are to consider the grounds upon which it was based, we would find no difficulty in sustaining it. Certain evidence was excluded. It consisted of admissions made by one of the defendants in an action in tort against two alleged joint tort feasors. The defendants were copartners. One of them visited the plaintiff shortly after the occurrence, and made certain statements claimed to be admissions. Assuming they could not, standing alone, bind his co-defendant, the evidence offered was to show that the interview was had at the procurement of that co-defendant, and it was sought not to show facts that would be privileged, for the reason that an offer to compromise cannot be made evidence of liability under the well-settled rule of law ; but as the learned judge says: “the plaintiff was prevented by the exclusion of the evidence at the outset from showing anything in reference to the conversations, and the court was not in a position to determine, under the distinctions made (as to privileged statements), whether the testimony was or was not admissible.”

Order affirmed, with costs.

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

Order affirmed, with costs.


text:
    In the Matter of the Probate of the Alleged Last Will, etc., of WILLIAM T. BLAIR, Deceased.

      Probate of a will — transfer of a proceeding by the swrogate of New Torh to the Court of Common Pleas — power of the surrogate to appoint a temporary administrator — section 2486 of the Code of Civil Procedure, inapplicable.

    A contest having arisen, in proceedings taken in tlie Surrogate’s Court of the county of New York, to secure the prohate of a will, the surrogate, of his own motion, transferred the proceedings to the Court of Common Pleas of the city of New York, where, upon a trial of the issues, a verdict was rendered adversely to the validity of the will.
    Pending an appeal from that decision an application was made to the Surrogate’s Court for the appointment of a temporary administrator, which was denied hy the surrogate upon, the ground that he had not power to act until the decision of the matter transferred to the Court of Common Pleas should be certified to him by that court.

      Held, that such denial was improper.
    That by such transfer the surrogate was not divested of any statutory powers, except such as by force of said transfer were expressly conferred upon said Court of Common Pleas.
    That section 2486 of the Code of Civil Procedure, authorizing the Court of Common Pleas to exercise the powers of a Surrogate’s Court, where a surrogate shall be disqualified, sick or absent, had no application to such a case.
    That an application for the appointment of a temporary administrator was no part of the proceeding for the probate of a will, but was an independent proceeding authorized by section 2668 of the Code of Civil Procedure.
    That the provision of section 2547 of the Code to the effect that “thereafter (». e., after certification of the final decision of the Court of Common Pleas) all proceedings relating to the will, and to the estate of the decedent, shall bo had in the Surrogate’s Court,” did not, by implication, forbid the Surrogate’s Court, pending such final decision in said Court of Common Pleas, from preserving the decedent’s estate by means of the appointment of a temporary administrator.
    Appeal of the infant contestant, Sarah Catharine Blair, by Edward T. Wood, her sjiecial guardian, from an order, entered in the office of the surrogate of the city and county of New York on the 22d day of May, 1891, denying her motion made by said special guardian for the appointment of a temporary administrator of the estate of William T. Blair, deceased.

      Edward T. Wood, for Sarah Catherine Blair, an infant, appellant.

      Bm/jamwi Wright, for the executors, proponents and respondents.
   Barrett, J. :

The facts upon which the question of law presented for our con.sideration depends are correctly and tersely stated by the respondents as follows :

“ The probate of the paper propounded in this proceeding as the will of William T. Blair, deceased, was opposed by the infant contestant herein, and in December, 1890, upon his own motion, the surrogate transferred the proceeding to the Court of Common Pleas. Upon the trial of the issues in that court a verdict was rendered adverse to the validity of the will. Pending appeal, an application to the Surrogate’s Court was made by the contestant for the appointment of a tempoi’ary administrator.. The surrogate decided that a proper case was made out for such appointment, but concurred in the respondents’ contention that in the present situation the Surrogate’s Court had no power to take any step in the proceeding whatever, and accordingly denied contestant’s motion. From this order the contestant appeals; the only question now in dispute is whether the Surrogate’s Court has power to take any steps in the litigation until the proceedings in the Common Pleas have been finally certified back to the Surrogate’s Court.”

We think the surrogate was not, by the transfer in question, divested of any of the powers conferred upon him by statute except such powers as by force of the transfer were expressly conferred upon the Court of Common Pleas. He could doubtless no longer try the issues of fact arising in the special proceeding for the probate of the will. That power, by force of his order of transfer, at once became vested in the Court of Common Pleas. But that power alone was transferred, and that power alone became so vested. The transfer of such other powers as are vested by law in the Surrogate’s Court, and are not necessary to the due execution of the power transferred, cannot be implied. Thus the authority of the Court of Common Pleas, by force of the order of transfer, is limited to the trial of the issues of fact, and to certain appellate proceedings which may follow. The only implied power is that which is necessary to secure a proper and adequate trial of the issues of fact, and a proper and adequate hearing thereafter of the appellate proceedings provided for. The authority of the Court of Common Pleas under the order of transfer ends when it finally certifies to the Surrogate’s Court the verdict upon the issues of fact. If the verdict sustains the will, the latter court may then admit it to probate. The Court of Common Pleas is nowhere authorized by section 2547 to perform that function. There are provisions of the Code (§ 2486) authorizing the Court of Common Pleas in certain cases to exercise all the powers and jurisdiction of the Surrogate’s Court ■— as where the surrogate is precluded or disqualified from acting, or where the office is vacant, or the surrogate' is disabled by sickness, absence or lunacy. But this jurisdiction must not be confounded with the special and limited jurisdiction conferred upon the Court of Common Pleas by the transfer in question. Under this transfer, standing alone, the Court of Common Pleas acquires none of the general statutory jurisdiction of -a Surrogate’s Court any more than would the Superior Court if section 2547 of the Code had specified that tribunal as the transferree. The application for the appointment of a temporary administrator is no part of the proceeding for the probate of the will. It is an independent proceeding for the preservation of the estate (pending litigation) authorized by section 2668 of the Code of Civil Procedure, and resting in the discretion of the surrogate. That discretion may be exercised where delajr necessarily occurs in the granting of letters testamentary or letters of administration, not only in consequence of a contest with regard to the probate of a will, but for any cause whatever. This would seem to be decisive of the present question. The respondent, however, claims that because notice of the application for temporary administration must be given “ to each party to the special proceeding who has appeared ” (§ 2669), it follows that such application is a mere incident to the main proceeding. This is not satisfactory reasoning. The question of notice cannot stamp the proceeding. "We might as well say that a proceeding to revoke probate is a mere incident to the original proceeding for probate if all the original parties are. required to be notified of the motion for revocation. They are interested in the matter, and that is all that can be said about it.

Nor is the question at all concluded by the expression in section 2547, upon which the respondent relies, that “ thereafter,” that is after the verdict has been finally certified by the Court of Common Pleas to the Surrogate’s Court, all proceedings relating to the will and to the estate of the decedent shall be had in the Surrogate’s Court.” The expression emphasized was plainly inserted for abundant caution. It simply affirms the natural status effected by the return of the verdict to the Surrogate’s Court. And it places that court in precisely the same position as though the surrogate himself had decided the contest for probate. This and nothing more. All subsequent proceedings to effectuate the verdict are thus to be had in the court specially constituted by law for that purpose and for all other probate purposes, and that court simply continues to exercise its general statutory jurisdiction in the premises. It is quite clear that the form of the expression quoted has no bearing on the question of power, pending the trial of the issues of fact, to preserve the estate by applying the provisions of law with regard to temporary administration. We think, therefore, that the learned surrogate had full power to exercise the •discretion conferred upon him by section 2668, with regard to temporary administration, and that, upon the facts presented, he should, ■as is conceded, have exercised that discretion in favor of the application.

It follows that the order appealed from shoidd be reversed, with costs, and the application remitted to the surrogate for the due exercise of his discretion as to the appointment of one or more competent persons to whom letters of temporary administration should be granted.

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

Order reversed, with costs, and the application remitted to the surrogate for the purpose stated in the opinion.


author: Hardin, P. J.:

text:
    ALMIRA N. STREVER, Respondent, v. OREN R. EARL, Appellant.

      Mortgage — assignment {not acknowledged), of an interest thm'ein — mlid pro tanto — deed by the mortgagor to the mortgagee — merger — acquiescence.

    In an action, brought to foreclose an interest in a mortgage, it appeared that one Lydia Weser executed and delivered to the defendant Earl a mortgage to secure $400 upon certain premises described in the complaint; that upon the same day the defendant Earl assigned to one Douglass an interest in said mortgage to the extent of $140, “to have and to hold that amount in said mortgage with me” (the defendant); that said assignment was not acknowledged ; that Douglass died, leaving the plaintiff his sole devisee; that thereafter Lydia Weser, in consideration of $457.96, deeded said premises to the defendant Eárl by a deed containing a covenant of warranty ; that the defendant Earl took immediate possession thereof and still occupied the premises.

      Held, that the assignment to Douglass, though not acknowledged, was valid and effectual to transfer the title to the interest in the mortgage.
    That by said assignment Douglas, and under him the plaintiff, became the owner of so much of the mortgage as was necessary to secure the payment of the sum of $140.
    That the mortgagor, Weser, having had notice of the lien of the plaintiff, who had never consented to its extinguishment, could not properly pay the whole amount of the mortgage to the defendant Earl,''and that the deed from Weser to the defendant did not discharge the plaintiff’s lien. Nor could Earl, in considerar tion of such conveyance, release the premises from the mortgage lien.

      Dams v. Spencer (24 N. Y., 386), distinguished.
    That, under these circumstances, no merger, to the prejudice of the plaintiff, resulted from the union in the defendant of the legal and equitable estates

      That the fact that the plaintiff, after she had learned of said deed, and of the defendant’s possession under it, did not for some time begin an action of foreclosure, did not amount to an acquiescence, or a ratification upon her part, in view of the fact that efforts by her to collect, and promises by the defendant to pay the amount claimed by her, were shown.
    Api>eal by the defendant Oren R. Earl from a judgment entered in the office of the clerk of the county of Oswego on the 25th day of June, 1890, as modified by a reduction of costs upon a readjustment thereof had on the 2d day of July, 1890, after a trial at the Oswego Special Term, at which the plaintiff had judgment for the foreclosure and sale of the premises described in the complaint, and for the payment from the proceeds thereof of $266.63 with interest and costs.
    On the 27th day of December, 1875, Lydia Weser, of the town of Sandy Greek, executed and delivered to the defendant, Oren R. Earl, her mortgage, under seal, covering the land described in the complaint in this action, to secure the payment of' $400 one year from date, which mortgage was recorded on the 30th of December, 1875, in Book 107 of Mortgages at page 491. On the same day of the execution of the mortgage the defendant executed and delivered to Dr. Solomon J. Douglass an assignment of an interest in the mortgage to the extent of $140. The assignment contained the following language : “ For value received, I hereby sell, assign, transfer and set over unto Sr J. Douglass, his heirs and assigns one hundred and forty dollars in and unto a certain mortgage I have this day taken of Mfs. Lydia Weser, in the sum of four hundred dollars, payable one year from date and dated the 27th day of December, 1875. Said S. J. Douglass is to■ hme and to hold that amount in said mortgage with me, in proportion to his amount of one hundred and forty dollars, and Oren R. Earl two hundred and sixty dollars, and the said mortgage is to be the property of both in proportion to the amount as above specified and the amounts furnished for the support and maintenance of the said Mrs. Lydia Weser and the expanses of insurance of the property and foreclosing the said mortgage.
    “(Signed.) OREN R. EARL.
    “ Dated, Sandy Greek, December 27,1875.”

      Tlie assignment was not acknowledged. Douglass died on the 28th of August, 1876, leaving the plaintiff, his widow, him surviving, and leaving a last will and testament, which was duly-admitted to probate on the 19th of December, 1876, by the Surrogate’s Court of Oswego county, by which will he gave to his wife, said plaintiff, all his property absolutely, and also made her sole executrix of said will. On the 2d day of November, 1877, Lydia "Weser, by a warranty deed duly executed and delivered, expressing a consideration of $157.96, conveyed to the defendant in fee, with a warranty of quiet possession thereof, the land described in and covered by the mortgage j the defendant immediately took possession of the land and has since held the same under the title thus conveyed to him. The court found that “ the assignment set out in the second finding of fact was made upon a full and valuable consideration, as between the defendant and Solomon «L Douglass therein mentioned, and transferred to and vested in the latter an interest and share in the said mortgage and in the debt, the payment of which was thereby secured to the amount of one hundred and forty dollars and interest thereon from the date thereof, which interest and share, by the will of the said Solomon J. Douglass, was transferred to and became the property of the said plaintiff.” The court also found that no part of the $110 or the interest thereon had been paid, and that the same “ yet remains and is the property of the plaintiff, and the same amounts at the date hereof to the sum of $266.63,” and for that sum the court ordered a judgment of foreclosure and sale. Defendant made certain requests to find, some of which were found and some ■of which were refused and exceptions were taken to the refusals.

      .A. Wart and Levi TL. Brown, for. the appellant.

      Hdelle Bartlett, for the respondent.
   Hardin, P. J.:

The assignment of the mortgage interest to plaintiff’s testator by the defendant was valid though not acknowledged.

In Heilbrun v. Hammond (13 Hun, 479), in speaking of the assignment of a mortgage, the court said: “ The assignment, so far .as it operated to transfer the title of the bond and mortgage, was effectual without an acknowledgment.”

By force of the assignment executed by the defendant to plaintiff’s testator, the testator became an independent owner of that portion of the mortgage necessary to secure the sum of $140; and the assignment expressly declares, viz.: The said mortgage is to be the property of both in proportion to the amount as above specified,” etc. At the time the mortgage was taken it appears by the evidence that Dr. Douglass held an account against the mortgagor or her husband for some forty dollars, and that he advanced some twenty dollars in money and executed a promissory note for eighty dollars to the defendant, and thereupon received the assignment in question. Subsequently the assignor’s estate paid the promissory note. Apparently the defendant received full consideration for the $140 mentioned in the assignment, and to the extent of $140 defendant ceased to be owner of the mortgage, either in law or in equity; the same passed to the testator, and from him to the plaintiff; and no payment of such sum was made to the testator in his lifetime, nor has the same or any part thereof been paid to the plaintiff in her individual or representative capacity. She, by virtue of the terms of the will of her husband, became the owner of that interest in the mortgage, and as such owner of the interest in the mortgage, and the lien created by the same to secure the payment of that sum, she, prima facie, was entitled to enforce the mortgage against the premises covered thereby.

After such assignment the defendant was not the sole mortgagee in equity, and the mortgagor having notice of such assignment having been made, could not properly pay the whole amount of the said mortgage to the defendant. His release, given to her after her knowledge of the execution of the assignment, would not operate, as between her and him, to discharge the mortgage or extinguish the interest acquired by the plaintiff’s testator by virtue of the assignment of the mortgage and the lien created thereby. When the defendant took a deed of the premises he had no right to discharge the lien held by the plaintiff upon the premises, and any agreement entered into by him with the mortgagor, that, in consideration of her conveyance of the premises, the mortgage should be discharged, could not operate to extinguish or satisfy the lien outstanding'in favor of the plaintiff.

Appellant calls our attention to Davis v. Spencer (24 N. Y., 386): We are of the opinion that the case does not sustain the contention of the appellant. In that case it was found, upon evidence, i(that the parties did agree that the mutual debts should be applied in cancelment and discharge of each other, so far as they equaled each other in amount, and to the amount of the smallest, and that without any further action by them — that is, that the agreement was executed, not executory.” The case in hand differs from that one in the circumstance that there is no evidence that the plaintiff ever consented that her lien in the premises should be extinguished by a deed of the premises to -the defendant. We think there was no merger on the occasion of the defendant’s taking a deed of the premises from the mortgagor. At that time he was aware that there was outstanding a lien in favor of the plaintiff which she held by virtue of the mortgage and his assignment to her testator; and she never consented that her lien or the charge should sink into the general legal ownership of the land and become extinguished.” (Clift v. White, 2 Kern., 525.)

Appellant calls our attention to De Lisle v. Herbs (25 Hun, 486). We find nothing in that case which supports the contention of the appellant. It is said in the course of the opinion, viz.: “ Ordinarily,, when the legal and equitable title unite in the same person, the equitable is merged into the legal estate. This result will not follow where it is against the express or implied purpose or intention of the person owning the two titles. So, where it is for the interest of such person to prevent the union of the two estates, the law will imply an intention to keep alive the equitable estate.” Nor do we think that Lynch v. Pfeiffer (110 N. Y., 33), aids the appellant. Although that case, perhaps, is an authority for saying, that so far as the defendant’s mortgage interest remained in the premises it was swallowed up by the deed which he received from the mortgagor. Not so, however, as to the interest in the premises held by the plaintiff in virtue of the mortgage and the assignment thereof. We think, upon the evidence, the court was warranted in finding “ that plaintiff at no time assented to or intended to assent to any merger of her interest in the said mortgage, by the conveyance of the land described therein to the defendant, or to release any security afforded thereby, for the payment of her interest or share in the debt secured by the mortgage.”- The evidence fails to show that the plaintiff gave any consent prior to the defendant’s taking the deed that it should have the effect now claimed for it, and it also fails to show that she or her agent ever consented that it should have such effect; although it appears in evidence that the defendant in one of the conversations he held with Newton, a brother-in-law •of the plaintiff, who was seeking to collect the sum due to the plaintiff upon the mortgage, stated that he, the defendant, had taken ■a deed of the premises in payment of the mortgage. The evidence fails to establish that Newton ever assented that it should have such effect, .even if it were conceded that he had authority to make ■such assent. Under such circumstances it is obvious that the defendant’s act could not defeat the plaintiff’s mortgage lien.

In Brown v. Blydenburgh (7 N. Y., 144), it was held, viz.: Where the holder of a bond and mortgage assigns it to a third person, as a security for a loan, and subsequently receives from the mortgagor a conveyance of the mortgaged premises, and at the time executes to him a discharge of the bond and mortgage, the land so ■conveyed continues subject to the mortgage in the hands of the ■assignee.” In the course of the opinion it was said: It was clearly a fraud on the part of Atwell to give this certificate of satisfaction, because he had previously assigned the mortgage to Calder, <md hneio that he had no authority to discharge it.” It may be conceded that, so far as the defendant had the beneficial ownership of a portion of the mortgage, at the time he received a deed of the premises, there was a merger, and that the deed operated as a satisfaction of the interest in the mortgage remaining in the defendant, and .an extinguishment of the lien pro tanto of his ownership in the mortgage. Still the deed was inefficient to discharge the interest in .the real estate held by the plaintiff, and her lien or interest in the premises was not extinguished or merged by the conveyance so given ,to the defendant. (Miller v. Lindsey, 19 Hun, 209, which follows Purdy v. Huntington, 42 N. Y., 334.)

No merger would have taken place if the defendant, at the time he took the deed, had made an agreement to pay off the mortgage interest held by the plaintiff. In Skeel v. Spraker (8 Paige, 182), it was held, viz.: “ Where a mortgagee has assigned his mortgage .as a security for a debt due by him to a third person, his taking back a conveyance of the mortgaged premises and agreeing to pay the debt to the assignee, does not operate as a merger of the mortgage, either at law or in equity.”

Appellant calls our attention to Asche v. Asche (113 N. Y., 232), and, upon examination, we find nothing in the case which sustains the'position of the defendant. In the course of the opinion in that case it was said: Merger is accomplished in law when two or more estates in the same property unite in the same person, and when such estates comprise the whole legal and equitable interest, in such property, the person holding them becomes the absolute owner. * * * But this cannot take place where there is an intermediate estate.” Nor do we think the circumstance that after the defendant obtained the deed he took possession of the premises and continued to hold possession thereof, and that the plaintiff acquired knowledge of that fact, and for some time thereafter omitted to assert her lien by foreclosure proceedings, impairs or defeats the-plaintiff’s lien. The plaintiff had made efforts to collect the debt and continued to make efforts, and according to the testimony of some of the witnesses the defendant repeatedly promised to pay off and discharge the indebtedness held by the plaintiff and secured by the mortgage and assignment of a portion thereof to her testator. "We think no acquiescence or assent or ratification was shown by the evidence which should estop or prevent the plaintiff from enforcing her lien upon the premises.

Our attention is called to Harrower v. Heath (19 Barb., 331). In that case an agreement was assented to by the plaintiff, “ not only before the arrangement between them for that purpose was copsuinmated, but was in various ways recognized and ratified by him after-wards.” That case is clearly distinguishable from the one before us.

The views already expressed sufficiently dispose of the exceptions taken to the findings as made and to the refusals to find. We are of the opinion that the plaintiff had a valid lien upon the premises at the time of the commencement of her action to the extent of the mortgage debt owned by her and assigned by the defendant to her, and that as between the plaintiff and the defendant, who was the sole owner of the fee, she was entitled to foreclose the mortgage for the purpose of enforcing payment of the debt and interest. Such, was the effect of the judgment given at Special Term.

The judgment should be affirmed, with costs. -

Martin andMiSRwm, JJ., concurred.

Judgment affirmed, with costs.


text:
    ELIZA A. MARTIN, Appellant, v. MANUFACTURERS’ ACCIDENT INDEMNITY COMPANY, Respondent.

      Benefit insurance companies — surrender of a certificate ■ — ■ the consent of the beneficiary is necessary — the grounds of a motion for a new trial must appecvr in the appeal papers.

    A benefit insurance corporation issued to a party assured a certificate, by which, it agreed to pay the assured a certain sum of money in case of disability, and to pay to the wife a sum, to be realized upon an assessment, in case the husband’s death resulted from bodily injuries by external, violent and accidental means (which injuries alone occasioned such death within ninety days from the time they occurred).
    The assured injured himself on the eighth day of April and again on the twenty-seventh day of April. He died on the tenth day of the following May. His policy or certificate was paid to June ninth, and he was notified by the corporation to that effect on May ninth. On the thirteenth day of April an agent of the company settled with the assured for the accident of April eighth, and the assured at that time, as the corporation alleged and as a receipt taken at the time stated, surrendered his certificate, although there was no actual surrender of possession of the certificate.

      Reid, that such a receipt might be explained and be shown to be without consideration so far as the surrender was concerned.
    That as there was no physical surrender of the certificate, and as the corporation subsequently acknowledged its validity by the notice of May ninth, and as the proof upon the question of surrender was conflicting, the wife on the trial of an action brought by her to recover the sum made payable to her by the certificate in case of her husband’s death, should have been allowed to go to the jury upon the question whether there was an intention to surrender the policy and as to whether it was, in fact, surrendered, and that the case was not a proper one for the granting of a nonsuit.
    That as the certificate was payable to the wife she had a vested interest in such covenant of payment, and her consent to such surrender was necessary.
    Where the grounds of a motion for a new trial nowhere appear, the denial of the motion cannot be reviewed, and an appeal taken from the order denying it must be dismissed.
    Appeal by tbe plaintiff Eliza A. Martin from a judgment entered in the clerk’s office of Broome county on the 20th day of January, 1891, in favor of the defendant, and also from an order entered in said office on the 5th day of December, 1890, denying her motion for a new trial after a trial at the Broome Circuit before the court and a iurv.

      The complaint upon a certificate or policy of insurance issued by the defendant on tlie 9tli day of November, 1888, alleged tlie issuing by the Manufacturers’ Accident Indemnity Company, the defendant, of the certificate or policy “ by which they undertook and agreed, among other things, to pay to the plaintiff the sum realized upon an assessment made in accordance with the provisions of its by-laws, not exceeding $5,000, within ninety days after the filing with said defendant due proof that said William A. Martin has sustained bodily injuries effected through external, violent and accidental means, which injuries alone occasioned his death within ninety days from the happening thereof.” The answer admitted the issuing “ of the certificate of membership or policy of insurance; ” also admitted that William A. Martin died upon the 10th day of May, 1889, and that an assessment would “ exceed $5,000,” and that no part of the alleged sum of $5,000 has been paid. The answer further alleges that on the 8th day of April, 1889, the assured received injuries upon the thumb of his left hand from a hammer, and also alleges “ that claim was made by said assured for weekly indemnity under the provisions of said policy, on or about the 9th day of .April, 1889, and that thereafter, and on or about the 13th day of April, 1889, and while said assured was not disabled within said policy so as to be entitled to any weekly indemnity, this defendant duly agreed to and with the said assured for a good and valuable consideraton, viz.: $25, then and there paid to said assured, that said sum would be and it was received in full satisfaction and final settlement of any and all claims said assured had or might have against this defendant for loss resulting from injuries received by said assured on said 8th day of April, 1889, for and in consideration of said sum of $25 said assured then and there agreed to, and did surrender, satisfy and cancel said policy of insurance set out in the complaint, by reason of which said policy was surrendered, canceled and satisfied, and ceased to be an obligation or policy against this defendant, all of which is set up as a defense herein.” The nonsuit seems to have been put upon the ground “that the undisputed evidence shows the cancellation of this policy and the company was not liable.” Plaintiff requested to go to the jury upon the question as to whether “ it was the intent of the parties, upon giving that receipt of April 13th, to surrender the policy, and whether, in fact, the policy was surrendered; whether, in fact, it was at the time of Mr. Martin’s death a valid and subsisting contract of insurance between the beneficiary and the company.” An exception was taken to the holding by the court. In the application made by the ■deceased on the 8th of November, 1888, and in the ninth subdivision thereof were inserted these words : “ Write certificate payable in case ■of death by accident under provisions of this certificate to Eliza A. Martin, whose relationship to me is that of my wife.” The agent •of the defendant on the eighth-of November executed a receipt to the deceased for five dollars, “being payment in advance of the membership fee upon the certificate so applied for.” The secretary of the defendant executed a receipt on December 12, 1888, for two dollars, “in payment of premium due December 9th, 1888 ; ” February 9, 1889, the secretary executed a receipt for two ■dollars “ in payment of premium due February 9th, 1889; ” and the secretary executed a receipt April 9, 1889, for two dollars “in payment of premium due April 9th, 1889.” An “ official notice ” from the officers of the Manufacturers’ Accident Indemnity Company, bearing date May 9, 1889, signed by the secretary, was issued and sent to the assured, which contained the following words, viz,: “Your insurance stands on our books as paid to June 9, 1889; your next bi-monthly premium of two dollars is now due; time of payment expires June 9th, 1889.” The ’“official notice,” with other papers accompanying it from the defendant, were addressed to the assured, and sent through the mail and received at his residence on the day of his death. On the 27th day of April, 1889, the deceased injured the second finger of his right hand between the first and second joint by taking out a small piece of flesh about the size of a pea; inflammation set in and blood poisoning ensued, resulting in his •death on May 10, 1889 ; and it is claimed in behalf of the plaintiff that death resulted from the injuries received on the twenty-seventh •of April, and that by reason thereof the defendant became liable to pay the plaintiff the sum of $5,000 upon the policy. On the 2d of May, 1889, the deceased requested his daughter to write, for and in his behalf, a notice of the injury that he had received, on the twenty-seventh of April, and send the same to the defendant, which was done, and the defendant received the same in due course of mail and retained it without objection or inquiry communicated to the deceased. On the fourteenth of May the plaintiff caused notice of the death to be sent to the defendant, with a request for usual blanks to make up proofs of loss, which notice was received by the defendant, but no blanks were furnished, and the plaintiff on the twenty-ninth of May made up and delivered to the defendant proofs of loss, which were “returned to plaintiff by defendant next day after receipt on the ground stated that the policy in question had been canceled and was not in force.”

      Carver, Deyo <& Jenkins, for the appellant.

      A. & A. W. Cumming, for the respondent.
   Hardin, P. J.:

Plaintiff is entitled to have the most favorable inferences deducible from the evidence, and conflicts in the evidence resolved in her favor while reviewing a motion for a nonsuit. (Weil v. D. D., E. B. and B. R. R. Co., 119 N. Y., 153.) Whether the death ensued from injuries covered by the provisions of the policy, upon the evidence produced, was a question for the jury to determine.

Apparently the critical and important question in the case arises-upon the effect to be given to the paper signed by the deceased on the 13th day of April, 1889, which was in the following words:

“ Received from the Manufacturers’ Accident Indemnity Co., of Geneva, N. Y., the sum of twenty-five dollars ($25), being in full satisfaction and final settlement of any and all claim I now have or may have against said company for loss resulting from injuries received on the 8 day of April, A. D. 1889, under my policy No. 12157, which is hereby surrendered.

“ Dated at Binghamton, in the State of New York, this 13 day of April, A. D. 1889.

“WUA. MARTIN, Claimant..

“Now 28 Lewis st., Binghamton, N. Y. Residence.

“ 0. L. King, Witness.”

When the paper was executed it was a printed blank, except the-words and figures underscored.

King, the general agent of the defendant, who witnesses the 'paper, was called as a witness inbelialf of the defendant and, against the objection and exception of the plaintiff, he was permitted to-give a conversation held with the deceased on the thirteenth of April, when the paper was executed. It appears by that conversation that the deceased and the witness held a discussion as to the extent of the injuries to the thumb of the deceased, and as to what sum would be a suitable compensation therefor, and, after an intimation on the part of the witness that he would give ten or fifteen dollars, deceased declared he would not take it, and the witness King finally testifies as follows: “ I says to him finally, in substance, •Mr. Martin, what will you take and settle this matter, tell me? I am here with authority to settle with you. He sa^s, I will take one-week, that is $25. I says yes; I says, to end all this discussion I will pay you, and drew out this application, this receipt.” The witness testifies further that he gave his check for twenty-five dollars, and that the deceased signed the paper, and the witness adds, the deceased “ looked at it and says, what does that mean by surrendering my policy ? I says it is the usual course when we settle with a man before he recovers from an injury, and your reinstatement depends on the secretary; that is nothing I have anything to do with. He signed the receipt and I gave him my check and I left the office; the whole talk I can’t give; I was there perhajjs an hour and a half.” The witness further testified that in answer to some question put to him by the deceased, in regard to the surrender of the policy, that he replied, “ I says it is customary to send that to the company with the receipt; it is not here, I didn’t consider it important and did not send for it, and did not get it. * * * Mr. Martin said the policy wasn’t there ; I says this surrender is sufficient, and without going after the policy or getting it.”

The defendant called one Demeree as a witness, who was present at a portion of the interview which was had between King and the deceased, and he testifies: “Mr. King didn’t say that he would pay ten or fifteen dollars, nor make any offer while I was there. Mr. Martin didn’t say that he would call it one week while I was-there. Neither Mr. Martin nor Mr. King made any offer while I was there. I saw no check given nor receipt signed. * * * "When I left the Appleton office I left Mr. Martin and Mr. King negotiating and talking about the matter ”

Tbe plaintiff called Daniel E. Comstock, who testified to a conversation he had held with King, as to which conversation the witness says: “ Mr. King says, I heard Mr. Martin received an accident, and I came right around and have settled for a weekly indemnity, and have paid him a check for $25, and he requested Mr. Martin to show me the check which he did. I think it was Mr. King’s individual check for that amount, and the settlement seemed very satisfactory, and there was nothing said about the cancellation of the policy.”

We think the evidence warranted an inference that thé twenty-five dollars was paid in satisfaction of the loss sustained by the injuries of April eighth, and that the evidence warrants an inference or finding that the payment was made exclusively for such purpose, and that no part of the sum of twenty-five dollars was paid to reimburse the deceased for the premium paid theretofore to the defendant, or for the purpose of obtaining a surrender of the policy; indeed, the language of the receipt is that the twenty-five dollars is in satisfaction of “ any and all claim I now have or may have against said company for loss resulting from injuries received on the 8th day of April, A. D. 1889.” (Ramsden v. Hylton, 2 Vesey, Sr., 310.)

In Van Nest v. Talmage (17 Abb. Pr., 99), it was held that “ A receipt or release may be avoided by proof that it was obtained without consideration or by misrepresentation, or that it has been rescinded by agreement.”

If the receipt is construed in the light of the evidence now mentioned, and the facts and circumstances surrounding the parties .at the time of the execution thereof, the conclusion is reasonable that the money paid by the defendant was for the purpose of satisfying the claim or liability, which arose by reason of the in juries of the eighth of April. We think the words “hereby surrendered” were inserted without any consideration being paid therefor. (Brick v. Campbell, 122 N. Y., 337.) There was no physical surrender of the policy, the same having been retained by the assured or the beneficiary named therein, and held by them or one of them at the time of the death.

This case is distinguishable from Train v. Holland Purchase Insurance Company (62 N. Y., 602), as in that case there was an .actual delivery of the policy; a physical surrender of it by the party solely interested therein to the agent, “ and the acceptance of it by him as agent of the Andes Company, with the intention on the part of both that it should no longer be a contract between the plaintiff and. the company,” and that by a party solely interested in the ownership of the policy. We also think this case is distinguishable from Crown Point Iron Company v. Ætna Insurance Company (53 Hun, 227), as in that case the plaintiff had actually surrendered the policies, and, by its decisive act, “put the policies intentionally out of the plaintiff’s possession,” and no question was made in that case but what the plaintiff was the sole owner of the policy and the sole party interested therein.

Again, by the application that was made to the defendant, it was expressly requested to make the certificate or policy payable in case of death by accident, under the provisions of the certificate, to Eliza A. Martin. By the terms of the policy it was provided that if death should be “ effected through external, violent and accidental means * * * this company does covenant, promise and agree to pay to Eliza A. Martin, wife, if surviving, if not to the legal representative of the member, the sum of $5,000 from the benefit fund of the company at the time of said death.” On the thirteenth of April the policy was in life, and the premium thereon had been paid sufficient to keep it alive until another payment ir premium should become due and payable on June ninth. The beneficiary, therefore, had an interest in the covenant of the company, which had been paid for. (Lockwood v. Bishop, 51 How., 224.) It is not claimed that she ever assented to a surrender of the same, or that she, in any manner, canceled her interest in the policy in question; nor does the evidence show any act on her part which can be construed to operate as a surrender of her interest in the policy; besides, on the ninth of May the defendant, when it issued its “ official notice,” treated the policy as valid and binding. (Matter of Booth, 11 Abb. N. C., 145; Cook on Life Ins., 138, and cases cited.)

Chase, the secretary of the company, who, by evidence, is shown to be the principal manager of the company, it must be assumed had either signed or caused to be signed the “ official notice ” which was used, and it must be assumed that he was acting within the scope of his authority when he sent or caused to be sent the “ official notice ” to the assured. According to the testimony of King, the secretary had the power to cause a reinstatement of a member even after a valid surrender of a policy. In article 2 of the by-laws it is provided that if a member shall fail to remit the amount of the assessment within the time specified in the notification, he “ may be reinstated by the secretary under such conditions as he may impose.” It seems that the object of this company is to “ collect and accumulate a fund to be held in use for the mutual benefit and protection of its members or their beneficiaries; ” such is the declared object in article 1 of the by-laws. It would seem that the defendant not only covenanted to pay such sum of money as the assessment would yield up to the extent of $5,000, but it undertook to act as trustee, not only for the members but for the beneficiaries mentioned in its policies. This circumstance is not to be ovei’looked in considering the interest which the plaintiff had in the policy on the thirteenth of April.

Plaintiff has placed her right to recovery by reason of the injury of April twenty-seventh, and not by reason of the injury of April eighth. "Whether the death resulted from the injury of April eighth or whether that contributed to the death were questions which were not determined by the learned judge at the circuit, and are not directly brought in review; and probably when this case shall be tried again questions in that regard will be for the jury to determine. (Peck v. Equitable Accident Association, 52 Hun, 259.) We think the plaintiff’s case is distinguishable from Bacon v. United States Mutual Accident Association (123 N. Y., 304), as in that case it appeared the death of the insured was caused by malignant pustule, and it • was, therefore, held that the insured died from a disease within the meaning of the policy.

Neither the notice of motion for a new trial made upon the judge’s minutes nor the order entered thereon specify any grounds; according to the well-settled practice of this court, the same cannot, therefore, be reviewed, and the appeal, therefore, must be dismissed. (Hinman v. Stillwell, 34 Hun, 178.)

Martin and Merwin, J J., concurred.

Appeal from the order dismissed. Judgment reversed and a new trial ordered, with costs to abide the event.


text:
    SMITH BRIGGS, Respondent, v. ROBERT B. GARDNER, Appellant.

      Practice — the order of proof is in the discretion of the trial court — the defense of another action pending — conclusive presumption that an attorney is authorized to sue.

    In an action brought to recover upon a promissory note, the plaintiff called the defendant as a witness; upon whose cross-examination, and while the case was still with the plaintiff, the defendant’s attorney attempted to establish by such witness a defense to the action, based upon the statute of limitations ; the questions relating to such defense were excluded by the justice.
    Held, that the order of proof was in the discretion of the justice, and that his rulings thereon would not be reviewed on appeal.
    In an action in a Justice’s Court, the defense of another action pending between the same parties for the same cause having been interposed, it appeared that such an action was pending and undetermined in a court of record upon the same note and between the same parties. The defendant, however, testified that he had left the note with an attorney for collection, but had given him express directions not to bring suit upon it, and did not know that it had been sued upon, until the trial took place in the Justice’s Court.

      Held, that, for the purposes of the defense pleaded, the court would presume that the attorney had authority to sue in the court of record, and that his client would be bound by such presumption until that action was duly discontinued.
    Appeal by the defendant Robert B. Gardner from a judgment of the Tompkins County Court, entered in the clerk’s office of said county on the 21th day of October, 1890, affirming, the judgment of a Justice’s Court in favor of the plaintiff for $103.31; with notice of an intention to bring up for review the order of said County Court directing said judgment.
    The action was brought to recover upon a promissory note, to which there was interposed the defenses of the statute of limitations and the pendency of a former action between the same parties involving the same subject-matter.

      George R. Burehell and WilUam J. Montanye, for the appellant.

      David M. Deem, for the respondent.
   Hardin, P. J.:

Plaintiff, to maintain the action, called as a witness the defendant, and after asking him several questions in respect to some of the payments, the counsel for the defendant propounded to him the following question: “ Q. Did you ever make the last payment indorsed on this note ? ” This was objected to by the plaintiff as incompetent and improper; subject of defense in action ; not being a subject inquired into in the direct-examination. The objections were sustained and the appellant now insists that an error was 'committed; and the counsel for the defendant propounded another question: “ Q. Did you make any further payment to any party, after 1881, to apply on this note in question?” To this question the same objections were taken and the objections were sustained. Thereafter the witness stated that he made a payment of six dollars and sixty-seven cents February 17, 1875; the next was five dollars and the next ten dollars; thereupon the following question was put to him: “ Q. Do you swear positively that you have not paid anything to apply on this note in question, since you paid the $15.00 in 1881 ?” This question was objected to the same as before, and the justice sustained the objections. At the time these questions were propounded the case was with the plaintiff. After the plaintiff rested, no effort was made on the part of the defendant’s counsel to propound the questions already mentioned, presumably the justice would have allowed answers to have been given to them. Apparently he excluded the answers at the time the questions were propounded upon the idea that it was no part of the plaintiff’s case, and, on the contrary, the evidence sought tended to support the defense which had been set up in the answer of the statute of limitations. We are not prepared to say that the justice erred in the exercise of his discretion, and we are of the opinion that we ought not to reverse the judgment because of the rulings made by the justice. (Neil v. Thorn, 88 N. Y., 275.)

In Bedell v. Powell (13 Barb., 183) it was held that “the order in which proof shall be received on a trial is in the discretion of the judge, and liis decision cannot be reviewed on error or appeal.”

The pendency of a former suit, brought in the name of the plaintiff in the Supreme Court, against the defendant, upon the same note prior to the commencement of the suit in the Justice’s Court, was established. The summons and complaint and answer in that action were produced; there was no proof given of any discontinuance of that action. The defense of the pendency of a former suit was sufficiently stated in defendant’s answer. It seems tlie action was commenced by C. D. Watkins, an attorney for tbe plaintiff, and the complaint was upon the same cause of action mentioned in the complaint in this case. The complaint in the Supreme Court was verified by the attorney. The plaintiff admits that he left the note with Watkins, the attorney, “for him to write to Gardner to see if he would pay it or what he would do, but not to sue it,” He testifies that he gave Watkins “ express direction not to commence the action,” and that he was not informed of the action until the trial of the case in hand.

In Hamilton v. Wright (37 N. Y., 502) it was held “ where an attorney appears for a party, the general rule is that a retainer will be presumed, and the adverse party, having no notice to the contrary, may act upon such presumption; ” and in Brown v. Nichols (42 N. Y., 26) it was held that where an attorney appears without authority that the judgment obtained “ cannot be attacked for want of jurisdiction in any collateral proceeding, and is binding upon such defendant.” And in the celebrated case of Denton v. Noyes (6 Johns., 297) it was held that where an attorney “without authority from the defendant confessed a judgment which was entered up,” the judgment was regular.

In Vilas v. P. & M. R. R. Co. (123 N. Y., 440) the doctrine of Denton v. Noyes was approved.

In the case in hand it appears that no judgment had been entéred in the action in the Supreme Court; however, applying the principle derived from the cases to which reference has been made, it would seem that the act of the attorney in commencing an action, he having received the note for collection from the plaintiff, and the plaintiff being presumed to have authorized the action, should bind the plaintiff until the former action was discontinued. If the former action, had been determined adversely to the plaintiff, although he had not given authority to bring the action, though he had no notice of the action, he would have been liable for the costs of the action. (Hamilton v. Wright, 37 N. Y., 502.) Under such circumstances, We think the former -action- should be held a bar to the present action, as there had been an appearance in the former action, it could be discontinued only by. an order entered with the clerk and the payment or tender of costs of the action. (Averill v. Patterson, 10 N. Y., 500.) At the close of the evidence in the case it appears the defendant “ moved for a nonsuit on the ground that there is another action pending and undetermined in the Supreme Court, laid or located in Tioga county, N. Y., and said action was commenced and piending and undetermined before the said action was, and is now pending and undetermined.” This motion for a nonsuit was denied, and the defendant duly excepted. The denial of that motion was erroneous. (Blake v. Barnes, 26 Abb. N. C., and note, 218.) For the error thus committed by the justice, his judgment and the judgment of the County Court of Tompkins county should be reversed, with costs.

Martin, J., concurred; Merwin, J., concurred in the result,

Judgment of the County Court of Tompkins county and of the Justice’s Court reversed, with costs.


author: IIardin, P. J.:

text:
    HATTIE E. VAN ALLEN, Respondent, v. JAMES H. GLASS and Another, Appellants.

      (fats — offer of judgment — if accepted, it stays the accruing of costs after its service.

    An offer of judgment, under section 738 of the Code of Civil Procedure, made by the parties defending an action, was served by mail upon the plaintiff on November eighth. Subsequently both parties noticed the case for trial at a term beginning December eighth. Thereafter, and on November twenty-sixth, the plaintiff accepted the offer.
    Upon the taxation by the plaintiff of a bill of costs:

      Held, that the service of the offer by mail gave the plaintiff twenty days for its consideration, and he having "within that peiiod elected to accept it, "was not entitled to tax in liis bill of costs an item for costs “ after notice of trial,” the same having accrued subsequent to the offer.
    Appeal by the defendants, James II. Glass and Charles B. Tafit, from an order, entered in the clerk’s office of Schuyler county on the 7th day of April, 1891, denying their motion to correct a taxation of costs had in this action.

      The action was commenced in May, 1890, by the personal service of the summons upon both defendants in Oneida county. The defendants answered separately, and the date of the issue is July 30, 1890; the venue of the action was laid in Schuyler county. The action was upon an undertaking executed by the defendants in November, 1883. On the 8th day of' November, 1890, the defendants’ attorneys, pursuant to section 738 of the Code of Civil Procedure, served by mail an offer of judgment. On the 22d day of November, 1890 (which fell on Saturday), ■the defendants’ attorneys .served on plaintiff’s attorneys a notice of trial for the Schuyler Circuit, commencing on the 8th day of December, 1890, by mail, at the city of Utica, which was received by the plaintiff’s attorney on the morning of November twenty-fourth. On November twenty-sixth defendants’ attorneys filed with the clerk of Schuyler county a note of issue for the then approaching circuit. The plaintiff’s attorney served a notice of trial for the same term by mail on the twenty-second of November, by depositing the same in the post-office at Watkins on the evening of the twenty-second, which notice, by usual course of mail, would reach the defendants’ attorneys probably the twenty-fourth or twenty-fifth of November. On the twenty-sixth of November the plaintiff’s attorney and his client had an interview and she determined to accept the offer made by the defendants, and thereupon the plaintiff’s attorney gave notice of his acceptance, by mail, on the twenty-sixth day of November. The notice was served within the time fixed by statute, the offer having been served by mail giving the plaintiff twenty days, which did not expire until November twenty-eighth ; on the eleventh of December judgment was entered by the clerk, and plaintiff’s bill of costs was taxed at thirty-seven dollars and twenty-eight cents, and included among the items, viz.:
    “ Costs, by statute, before notice.................... $15 00
    “ Costs, by statute, one additional defendant........... 2 00
    Costs, by statute, after notice and before trial........ 15 00”
    A notice for retaxation for the twenty-second of December was served by the plaintiff’s attorney, on which day the attorneys for the respective parties appeared before the clerk, and the costs were readjusted at the same amount, to wit, thirty-seven dollars and twenty-eight cents. The counsel for the defendants asked to have the taxation held open until he could communicate with the defendants’ attorney. On the twenty-second of December counsel for defendants appeared before the clerk and objected separately to each item of the plaintiff’s bill of costs, and the objections were overruled and the costs were retaxed at the sum of thirty-seven dollars and twenty-eight cents. Counsel for the defendants claimed “ that the plaintiff’s acceptance of the offer related back to the time-the offer was served,” and also claimed that the clerk “ should tax costs accruing after the service of their offer in their favor, and they claimed to be allowed the $15.00 after notice and before trial, besides subsequent disbursements.” Defendants’ attorneys noticed a motion for a retaxation for the Broome Sp>eeial Term, which was denied, the court holding that the plaintiff was entitled to the item of fifteen dollars after notice and before trial.

      Dunmore dé Sholes, for the appellants.

      John J. Van Allen, for the respondent.
   IIardin, P. J.:

Section 738 of the Code of Civil Procedure provides that an offer may be made “to allow judgment to be taken * * 'x~ for a sum * * * therein specified, with costs; ” it also provides, viz.: “If the plaintiff within ten days thereafter serves upon the defendants’ attorney a written notice that he accepts the offer, he may file pie summons, compilaint and offer, with piroof of acceptance, and thereupon the clerk must enter judgment accordingly.” As the offer of judgment was served by mail the plaintiff had twenty days from the time of service in which to determine upon the acceptance or non-acceptance, and to serve upon defendants’ attorney “ written notice that he accepts the offer.” (Pomeroy v. Hulin & Beebe, 7 How., 161.) He was-then authorized to file the summons, complaint and offer with proof of acceptance; and it is further provided in that section that “ thereupon the clerk must enter judgment accordingly.”

In Walker v. Johnson (8 How., 241), it was said, viz.: “ This-right of the plaintiff is inconsistent with a co-existing right in the defendant, to take any steps in the action adverse to the plaintiff, «contrary to the offer. The offer amounts to a written stipulation on the part of the defendant, waiving all light to proceed in the .action for the term of ten days, or until plaintiff makes his election to reject the offer.” In that case it was said, “the defendant’s order to dismiss the plaintiff’s complaint, obtained by him within ten days after his offer, was, therefore, irregular and must be set aside.” The case of Hawley v. Davis (5 Hun, 642), does not reach the question made here. In that case the defendant served upon the plaintiff’s attorney an offer of judgment on the ninth of June, •and on the fifteenth of June plaintiff took an inquest and entered judgment for the amount claimed, with costs, and it was held in that ease “ that as the ten days within which the Code required the plaintiff to accept or reject the offer had not elapsed when the action was tried, the plaintiff was entitled to the fee allowed for the trial of an issue of fact.” In that case the offer never became efficient by an acceptance nor by the expiration of the time within which it might have been accepted.

In Herman v. Lyons (10 Hun, 111), an offer of judgment was ■served on the seventh of February, and, on the ninth of February, the cause was regularly called in its order on the calendar and an inquest taken therein, and the costs accruing subsequent to the ■offer taxed in plaintiff’s favor, and it was held “ that, as ten days had not elapsed from the service of the offer of judgment to the time ■of trial, the plaintiff was entitled to disregard the offer and to tax the costs thereafter accruing.” In the course of the opinion it was said : “ The plaintiff could treat the offer as a nullity, which he did do, and proceed with his action.” In the case in hand the plaintiff did not treat the offer as a nullity, and, during the time allowed by statute for the acceptance of the offer, made her election to accept, ■and did accept, and with the offer, with the acceptance and proof thereof and other proper papers, applied to the clerk, who entered judgment in accordance with the offer.

The question here presented was considered in Douglass v Macdurmid (2 How. [N. S.], 289), and it was there held that where “ the defendant serves an offer of judgment for a specific sum, with interest and costs, and after the offer is made both parties serve notice of trial, after which time the plaintiff accepts the offer, he is ■only entitled to costs before notice of trial — fifteen dollars.” In the course of the opinion in that case it was said “ the notice of trial served by the defendant does not aid the plaintiff, because the offer-prevented the defendant from moving the case for ten days after it was served (Walker v. Johnson, 8 How. Pr., 240), and the notice served by the defendant became nugatory on the acceptance of the offer.” The rule stated in that case is satisfactory.

The order of the Special Term must be reversed, with ten dollars, costs and disbursements, and the motion granted, so far as it asks to strike out the item of fifteen dollars after notice, and in other respects denied, without costs to either party.

MaetiN and Meewin, JJ., concurred.

Order of the Special Term reversed, with ten dollars costs and disbursements, and the motion granted, so far as it asks to strike out the item of fifteen dollars after notice, and in other respects denied,, without costs to either party.


author: HaediN, P. J.: MaetiN, J.

text:
    MILES PARKER, Respondent, v. ORVILLE M. KNOX, Appellant.

      Vromdulent representations as to agency — measure of damages on sales for future delivery — proof that the alleged, principal was solvent — election of remedies.

    An action was brought to recover tlie damages alleged to have resulted to the plaintiff from the defendant’s fraudulent act, in falsely representing himself to< the plaintiff tobe the agent of a third person, and in having thus bought from the plaintiff for future delivery hops which he subsequently refused to take, by reason of which a loss resulted to the plaintiff through their fall in price:

      Held, that the measure of damages was the difference between the contract-price and what the hops were worth at the time when they should, by the terms of the contract, have been delivered.
    That, in connection with the subject of damages, it was not requisite for the plaintiff to show affirmatively that the third party represented by the defendant to be his principal was “solvent and responsible.”
    The defendant’s counsel asked the court “to charge directly that a verdict or judgment for the defendant in this case would not be a bar to an action by the. plaintiff against Knox for a breach of contract to buy the hops upon his own account.”
    To this request the court replied: “I decline to charge that," and then added, "I think the rule is, having selected this remedy and the method of enforcing-
      it, that it is a selection which he must stand by, and I decline to charge the proposition.”
    that had the court simply refused the request the appellate court held that the request was not upon a material issue, but that the words added were erroneous, as the doctrine of election did not apply.
    That the plaintiff, had he failed to prove fraud in this action, might still have held the defendant liable, in another action, as the purchaser of the hops, because of his having assumed to have an authority which he did not, in fact, have.
    That because of such statement to the jury a new trial should be granted. (Martin, J., dissenting upon this last point.)
    Appeal by tlie defendant Orville M. Knox from a judgment, entered in the office of the clerk of Madison county on the 30th day of April, 1890, in favor of the plaintiff, after a trial at the Madison Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $1,700.74, with notice of an intention to bring up for review upon said appeal an order, entered in said clerk’s office on the 12th day of December, 1890, denying the defendant’s motion for a new trial.
    Plaintiff in his complaint alleged that on the 26th day of June, 1889, he was the owner of a quantity of hops and that the defendant, “ for the purpose of obtaining control of the same for speculative purposes, falsely and fraudulently represented and stated to the plaintiff that he, the defendant, was duly authorized by one George W. Elkins, who was well known to the plaintiff to be a reputable and solvent hop dealer, to buy the plaintiff’s hops, and offered the plaintiff for said hops, as the alleged agent of said Elkins, the sum of twenty-two cents per pound. * * * That the plaintiff, relying on the said representations of the defendant, that he was the agent of said Elkins and had the right to buy said hops for him, and believing that the sale was made to said Elkins, as the principal of said defendant, sold his ninety-seven bales of hops, weighing 18,456 net, to the defendant as per his offer of twenty-two cents per pound. That the defendant paid the plaintiff on account of said sale twenty dollars, and agreed to weigh, inspect and pay for said hops at the plaintiff’s hop-kiln, in the town of Madison, county of Madison, where said hops then were, on the following Saturday or Tuesday. That the plaintiff, on both of said days was prepared to deliver said hops, as aforesaid, but the defendant failed to put in an appearance and to take said hops.. That the defendant promised, from time to time, to take said bops alleging as an excuse that his principal, said Elkins, was away from bis place of business among tlie brewers, or bad no place for them just at the time, and would fix new dates, but always defaulted and failed to take said hops and pay for the same the purchase-price aforesaid. That thereafter, and about the month of August, 1889, plaintiff learned that the defendant bad no authority from said Elkins to buy said bops, as aforesaid, and plaintiff alleges, on information and belief, that, defendant bad no authority to buy said bops for said Elkins, and was not bis agent and bad no authority to bind him on said purchase.”
    The plaintiff also alleged that on the twenty-sixth of June the hops were worth twenty-two cents in the market; “that thereafter the market-value of hops declined so that when plaintiff learned that said defendant was not the agent for said Elkins in making said purchase, and that said sale had not, in fact, been made to said Elkins, and the defendant refused to take said hops and pay for the same, said hops were only worth in the market the sum of nine cents per pound, at which said sum the plaintiff sold said hops as soon as he reasonably could on or about September 25, 1889, and said sale, at nine cents per pound, was the full value of said hops and all that the plaintiff could obtain for the same.”
    The answer of the defendant contained a denial of the allegations of the complaint.

      Jenldns dé Demreux, for the appellant.

      Haskell dé Ooley, for the respondent.
   HaediN, P. J.:

Upon an insj)ection of the evidence it is seen that the same is sufficient to sustain the verdict. The evidence sustains the allegations of fraud; we may not, therefore, interfere with the verdict as being against the weight of evidence. Upon the facts found by the verdict, a cause of action is made out against the defendant. (Brackett v. Griswold, 112 N. Y., 454.)

In the course of the charge delivered by the learned trial judge to the jury, he said: If you say that the plaintiff is entitled to recover in this case, the rule would be the actual loss which he lias sustained by reason of this false and fraudulent representation, ,-and, gentlemen, that would be tlie difference between tbe contract-price of these bops, at which they were sold and were to have been taken, and the price which they were actually worth at the time they ought to have been delivered.” At another point in the charge the court observed: “ If the plaintiff is entitled to recover in this .action, he is entitled, within the rules of law of this State, to recover the actual damage which he has sustained, and the rule is not very much different, or very widely different in actions sounding in tort under the facts in this case, than upon a breach of contract, or if the action had been brought for a breach of contract in an action at law merely.” The defendant’s counsel took a general exception “ to that part of the charge in which the court states the rule of damages in this case,” and accompanying the exception was a request “ to .say to the jury that the plaintiff must show affirmatively that Elkins was solvent and responsible; ” in response to that request the court declined to charge the proposition. "We think there was no error in declining to yield to the request; the presumption was that Elkins was “ solvent and responsible,” and so far as the evidence bears upon that question it indicates that he was solvent and responsible.

The defendant’s counsel asked the court' “to charge directly that a verdict or judgment for the defendant in this case would not be a bar to an action by the plaintiff against Knox for a breach of contract to buy the hops upon his own account.” In response to that request the court observed “ I decline to charge that. I think the rule is, having selected this remedy and the method of enforcing it, that it is a selection which he must stand by, and I decline to charge the proposition.” If the court had simply declined to yield to the request, we might say that the request was not upon a material issue in the case, but we must consider the further language used by the court, to wit: “The rule is, having selected this remedy and the method of enforcing it, that it is a selection which he must stand by, and I decline to charge the proposition.” We think this is not a case where the doctrine of election, applies. The plaintiff charges the defendant, in his complaint and in the evidence produced, with having committed a fraud, and that he fraudulently represented that he was the agent for Elkins. It might well be that there was> no fraud, and the jury might have been properly instructed that if they found there was no fraud there could not be a recovery against the defendant in the form of action adopted here. ¥e fail to see, however, that such failure would have prevented the plaintiff: from recovering against the defendant, upon the theory that he himself had become the purchaser of the hops, and was liable as upon the contract made with the plaintiff. It is a familiar principle that when a party assumes to act as agent for another and induces a contract upon, that assumption, and it turns out that there was no authority-in fact to act for the supposed or alleged principal, the agent himself is liable upon the contract. ¥e think it does not require the same evidence to support an action for alleging the defendant, is liable upon the contract made as it does to support an action alleging that he fraudulently represented that he was authorized as, agent for a party to act. As was said in Bowen v. Mandeville (95 N. Y., 241): “ In the one case the recovery is based upon the-express liability assumed by the party in his contract, and in the other upon the liability incurred for a violation of the duty of honesty and fair dealing, which the law enjoins upon one in his dealings with another.” We think for the error pointed out that there must be a new trial.

MerwiN, J., concurred.

MaetiN, J.

(dissenting):

This action was to recover damages sustained by the plaintiff by reason of the fraud or deceit of the defendant. The defendant’s-alleged fraud consisted in falsely representing himself to be the agent of one Elkins in purchasing the plaintiff’s hops.

On the trial the defendant asked the court “ to charge directly that a verdict or judgment for the defendant in this case would not be a bar to an action by the plaintiff against Knox for the breach of contract to buy the hops upon his own account.” To which the court replied: “ I decline to charge that. I think the rule is, having selected this remedy and the method of enforcing it, that it is a selection which he must stand by, and I decline to charge the. proposition.” The appellant contends that this was error.

If the defendant fraudulently represented that he was the agent of Elkins in purchasing the hops in question, the plaintiff had two-remedies: (1) By an action for damages and, (2) By an action upon an implied warranty that he was such agent. If these remedies were inconsistent, the plaintiff, by bringing this action, with a knowledge of all the facts, must be deemed to have made his election of remedies, and he could not maintain an action upon such implied warranty. But if they were consistent and concurrent, then this action would not bar an action upon the defendant’s warranty, whether express or implied, as a party may prosecute as many remedies as he legally has, provided they are consistent and concurrent. (Bowen v. Mandeville, 95 N. Y., 240, and cases cited.)

In the case of Baltzen v. Nicolay (53 N. Y., 467, 469), it was said : “ When an agent makes a contract beyond his authority, by which the principal is not bound, by reason of the fact that it was unauthorized, the agent is liable in damages to the person dealing with him upon the faitli that he possessed the authority which he assumed. The ground and form of his liability in such a case has been the subject of discussion, and there are conflicting decisions upon the point; but the later and better considered opinion seems to be that his liability, when the contract is made in the name of his principal, rests upon an implied warranty of his authority to make it, and the remedy is by an action for its breach. Citing Collin v. Wright (S E. & B., 647); White v. Madison (26 N. Y., 117); Dung v. Parker (52 id., 494).” See also Simmons v. More (100 N. Y., 141), and cases cited in opinion.

The question presented is whether the plaintiff’s remedy by an action against the defendant for his deceit in falsely and fraudulently representing that he was the agent of Elkins, and his remedy upon the implied warranty of his authority to act as such agent, were independent and inconsistent, or whether they were consistent and concurrent remedies. In White v. Madison (26 N. Y., 124), where this question was somewhat considered by the Court of Appeals, SeldeN, J., said: “ If the act of the agent were fraudulent, an action for the deceit would lie, but it would be a concurrent remedy with an action on the warranty, and so I apprehend must be the action on the contract itself, if the cases which sustain such action are to be regarded as correctly decided.” The doctrine of this case was followed in Dung v. Parker (52 N. Y., 500), where ANDREWS, J.,, says: If the act of the agent was fraudulent, an action for the deceit is a concurrent remedy with assumpsit. (See, also, Bowen v Mandeville, 95 N. Y., 240.)

The doctrine of these cases seems to be decisive of this question, and requires us to hold that the plaintiff’s remedies for the defendant’s fraud, and on his implied warranty, were concurrent and not inconsistent. It follows, therefore, that the statement of the court, that the plaintiff having selected his remedy must stand by it and could not recover upon the contract, was not correct if held to apply to the implied warranty of authority which arose from the defendant’s unauthorized act as agent.

Assuming the incorrectness of this statement, the inquiry is presented whether the court erred in refusing to charge as requested, or in giving the reasons assigned for declining to do so. The action was a clear and well-defined action for fraud. The only questions that were material to the case were whether the defendant made the representation under such circumstances and with the intent necessary to establish a cause of action for fraud. Whether'the plaintiff might have maintained a different action, or might, if defeated in this action, still maintain a different one, were questions in no way material to any issue between the parties. Therefore, the court properly declined to charge as requested. The court was only required to charge upon the material questions in the case. Having done that, it was under no obligation to submit to the jury an abstract proposition of law for its consideration. (Moody v. Osgood, 54 N. Y., 488; Hine v. Bowe, 114 id., 351.) Nor was it error to refuse to charge upon an irrelevant point. (Kissenger v. N. Y. (Mid H. R. R. Co., 56 N. Y., 538.) A refusal to charge a proposition, which, however true, is foreign to the case, is not error. (Priebe v. Kellogg Bridge Co., 77 N. Y., 597.)

But it is said that the reason assigned by the learned trial judge for declining to charge as requested was not correct, and hence it constituted an error for which the judgment should be reversed. I do not think so. The reason given by the court was, in effect, that the plaintiff having selected his remedy by that action must stand by it. This was little more than denying the defendant’s request; and as the statement of the court related only to an immaterial question, it could notjiave injured the defendant.

It may be observed that the request was not to charge that a-judgment in' this case would not be a bar to an action against the defendant for a breach of his implied warranty of authority, but was a request to charge that a judgment in the case would not be a bar to an action by the plaintiff against the defendant for the breach of a contract to buy the hops on his own account. This request clearly related to the sale, which was the basis of this action, and was, in effect, a request to charge that if the contract was, in form and substance, a contract of sale between the plaintiff and defendant, the plaintiff could recover in an action thereon. I do not think the court would have been justified in charging as requested, or that what was said in reply to such request constituted an error for which the judgment should be reversed. If there was such a-contract between the parties, it was disaffirmed by the bringing of this action. The action was totally inconsistent' with the existence of any such contract. (Roberts v. Ely, 9 N. Y. State Rep., 796.)

■ Moreover, I do not think the exception taken by the appellant, sufficient to raise the question as to the correctness of the language employed by the court in its statement in relation to the plaintiff’s-selection of a remedy. The appellant requested the court to charge a distinct proposition. It declined, and then gave a reason for doing so. There was no specific exception to what the court said, but only a general one, which would seem to relate to the refusal of the court to charge as requested, rather than to the reasons assigned for such refusal. The exception did not in any manner refer to that portion of the charge now objected to, so that the court could have understood that the exception related to the reason assigned for its ruling. When it is intended to except to a specific proposition, or to particular remarks of a judge in his charge to the jury, the counsel making the exception should put his finger on the proposition clearly and distinctly, beyond any question, and employ language entirely plain, so that there can be no doubt as to the real character of the exception or as to what was actually intended. This is essential to enable the judge to correct, modify or change the language used, if he deems it proper, and to prevent any misconception or misapprehension as to what portion of the charge the exception was intended to apply.” (McGinley v. U. S. L. Ins. Co., 77 N. Y., 495, 497; Bosley v. N. M. Co., 123 id., 550, 558.)

If, however, the exception were to be regarded as an exception both to the refusal to charge as requested, and to what was said by the court, still, as the refusal to charge was proper, a general exception should not, I think, be sustained. The rule is well established that, if a charge on a certain subject contains two or more propositions, and as to one of them the charge is correct, a general exception to the portion of the charge relating to that subject will bring up no question for review.

If the appellant desired to raise a question as to the propriety of the language used by the court in denying his request, he should have taken a specific exception thereto. Not having done so, I do not think that the propriety of that portion of the charge can boreviewed on this appeal.

I fully concur in the opinion of my Brother Hardin in this case, except in his conclusion that the remarks of the court in declining to charge as requested constituted error for which this judgment should be reversed. I cannot concur in that conclusion.

I am of the opinion that the judgment and order should be affirmed, with costs.

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