author: Van Brunt, P. J.:

text:
    Charles Menke, Appellant, v. Ernest W. Gerbracht, Impleaded, etc., Respondent.

      Defect in an answer — when not cmailaible on appeal — general objection insufficient— retiring and continuing partners — effect of an extension of the time for the payment of a firm debt — burden of proof.

    An alleged defect in the allegations of an answer is not available on appeal where no objection was taken thereto on the trial.
    "Where a party relies upon a defect in the pleadings which renders it improper to receive evidence relating to a defense or a cause of action sought to be established, it is necessary to call the attention of the court to the defect, and a mere general objection will not raise any such question. It is only where there is no possibility of avoiding the ground.of the objection that a general objection will be allowed to prevail and will justify a reversal of a judgment.
    Where a co-partnership is dissolved, and one of the partners retires, and the other receives all the assets and assumes all the liabilities, the relation between the two partners becomes that of principal and surety, and a creditor of the firm may be compelled to consider them as such; under which circumstances an extension of time for the payment of a debt given to the continuing partner, without the consent of the retiring partner, releases the retiring partner.
    In case a surety is called upon to pay the debt of his principal, and he alleges an extension to his principal of the time to pay the debt, it is not necessary for him to prove that he did not consent to such extension; the creditor must establish that such extension was given with the consent of the surety.
    Appeal by the plaintiff, Charles Menke, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the city and county of New York on the 19th day of April, 1893, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office numopro tuno as of the 13th day of April, 1893, denying the plaintiff’s motion to set aside the verdict and for a new trial made upon the minutes.

      JS. W. S. Johnston, for the appellant.

      R. L. Maynard, for the respondent.
   Van Brunt, P. J.:

The complaint in this action alleged that the defendants were co-partners at the times thereinafter mentioned under the firm name of Gerbracht & Co., and that said firm made their promissory note, in writing, bearing date the Yth day of May, 1890, whereby they promised to pay to the order of the plaintiff, four months after date, the sum of $350; that at maturity it was duly presented for payment and payment demanded, which was refused, and judgment for the amount of the note, with interest and protest fees, was thereupon demanded.

Yarious defenses were set up by the defendant Ernest W. Gerbracht, only one of which it is necessary to consider, and that is that on or about the 5th of June, 1890, the co-partnership theretofore existing between the defendants was dissolved, and the other defendant assumed all the assets and liabilities of the co-partnership, of which plaintiff had due notice; and that thereafter, and when said alleged note became due, the plaintiff made no demand for the payment thereof from this defendant, but accepted an extension from the other defendant, and that he also, by accepting other extensions of other notes, manifested an intention to wholly look to the other defendant herein.

It is urged that there was no plea in the answer that there was a valid, extension of time given by the plaintiff to the remaining partner after notice of dissolution, and that the remaining partner had assumed the debts and liabilities of the co-partnership and thereby discharged the retiring partner, and that, therefore, it -was error upon the part of the judge to send the issue, which he did, to the jury. And, furthermore, it was urged that there was no evidence or allegation that there was any extension of time without the consent of the retiring partner. If there is any defect in the allegations contained in the answer it is not available upon this appeal because no such objection was taken upon the trial. It is true that certain evidence was objected to as immaterial and incomjaetent, but there was no suggestion that there was any deficiency in the pleadings to raise the defense sought to be established, viz., extension. And it is to be noted that when any specific ground was stated as showing that the evidence was immaterial, irrelevant or incompetent, it was that the evidence did not refer to the note in suit, not that if it did so refer it was incompetent under the pleadings. 'Where a party seeks to rely upon a defect in the pleadings which renders it improper to receive evidence relating to a defense or a cause of action sought to be established, it is necessary to call the attention of the court to the defect, and a mere general objection will not raise any such question. It is manifest that such should be the rule because errors of that kind may be cured by the allowing of amendments to the pleadings. And it is only where there is no possibility to avoid the ground of the objection that a general objection will be allowed to prevail and reverse a judgment.

It is further urged upon the part of the appellant that it was necessary for the defendant to allege and prove that the extension was withoxit the consent of the retirwig partner. It is well established that where a co-partnership is dissolved and one partner retires, and the other receives all the assets and assumes all the liabilities, the relation between the two partners becomes that of principal and surety, and the creditors of the firm may be compelled to treat them as such. Under these circumstances, any extension of time for the payment of a debt given to a continuing partner, without the consent of the retiring partner, releases the retiring-partner, upon the principle that a surety is released where an extension is given to his principal without his consent. But in case a surety is called upon to pay the debt, and he alleges an extension of time to pay the debt to his principal, it is not necessary for him to prove that he did not consent. It is necessary for the creditor to establish that such extension was by and with the consent of the surety. The extension, as already stated, discharges the surety unless he has consented. And when the surety proves the extension he is discharged unless the creditor can prove consent. The surety is not bound to prove a negative ; the creditor is bound to establish the affirmative.

Therefore, in the case at bar, if there was evidence to go to the jury upon the point that the plaintiff, knowing of the dissolution of the firm, extended the time of payment of the firm indebtedness to the continuing partner, and the ■ jury so found, an assent to such extension is not established; the retiring partner is discharged. And that was the issue which was submitted to the jury, the reál issue presented1 being the contention upon the part of the' plaintiff that in the extension which was made to the continuing partner the note in suit was not included. That seems to be the only issue which was really litigated, and the exceptions point entirely to such issue.

The court charged the jury that if they found that the note in suit was included in tbe settlement wliicli was under consideration, and the plaintiff received from the continuing partner bis notes for the balance found due, that they should find a verdict for the defendant Ernest W. Gerbracht. And this was excepted to. This exception was taken in different forms, but that was the issue which seems to have been tried, the plaintiff claiming that the note for $350 was not included in the settlement, but the defendant establishing by evidence about which there can be no contradiction that it was so included, the plaintiff being absolutely unable to account for the amount of the notes received from the continuing partner, if it had not been included.

It was claimed by the plaintiff upon the termination of the evidence that the note in suit was not in any way identified with the settlement, the note mentioned in the settlement bearing date the twelfth of May, whereas this was dated the seventh. But there was evidence to the effect that there was but-one note given in May, and the figures of the settlement demonstrate the fact that the $350 note was the one in suit, the plaintiff not even pretending that he had received a note dated the twelfth of May. And in his complaint he does not allege that he received the note on the seventh of May, although it was dated on that day.

It is now urged for the first time that there was no evidence, that, at the time of the settlement in question, the plaintiff knew of the dissolution of the firm, and that error was committed in the admission of the copy of a postal card announcing such dissolution. It is not necessary to consider the objection, because the plaintiff himself testified that he knew when Ernest Gerbracht left the firm, and that it was in June, and that he received notice of the dissolution, and had left it at home. It is difficult to see how a claim can be made under these circumstances that there was no proof as to when the plaintiff knew of this dissolution, unless the appellant’s counsel intends to challenge the evidence of his own client upon this point.

Upon the whole case we can see no ground for the position taken by the appellant. The proof was ample and convincing that the note in suit was included in the settlement, the claim made by the plaintiff, that it could not be included in the settlement and was not so included, being apparently wholly without foundation.

The judgment and order appealed from should be affirmed, with costs.

O’Brien and Parker, JJ., concurred.

Judgment and. order affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    In the Matter of the Estate of Theodore Scheideler, Deceased.

      Deoree directing the payment of a legacy with interest — when justified.

    The administrator of an estate failed to apply for an accounting until compelled to do so nearly six years after the prohate of the decedent’s will. Thereupon such administrator filed a hill in the Supreme Court for the alleged purpose of obtaining a construction of the will, the evident object of which proceeding was to secure additional delay.

      Held, that under such circumstances a surrogate was justified in directing the payment by such administrator, to a legatee of the decedent, of a bequest, with interest.
    Appeal by Charles Scheideler, as administrator, etc., of Theodore Scheideler, deceased, from a decree of the surrogate of the county of New York, entered in the office of the clerk of the New York Surrogate’s Court on the 13th day of October, 1893, directing the payment of the amount of a bequest, with interest, to a legatee of the decedent.
    The order appealed from provided as follows: “ Ordered, the said motion for reargument having been granted, and the matter' having been heard on the merits, that Charles Scheideler, administrator with the will annexed of Theodore Scheideler, deceased, pay to the St. Joseph’s Orphan Asylum in the city of New York, or to Henry Schmitt, Esq., its attorney, the sum of $500, with interest from the 23d day of November, 1887;.”

      John, Branden, for the appellant.

      Henry Schmitt, for the respondent.
   Per Curiam:

It appears that this will was admitted to probate on November 30, 1886, and that the administrator failed to account until compelled to do so by order of the surrogate dated November 11, 1892. Upon such accounting, the administrator, if he had desired a construction of the will, could have had the proper parties brought in and the will construed, and there was no necessity for the filing of a bill in the Supreme Court for that purpose; the evident object of which, in view of his delay and failure to serve the necessary parties, was to secure additional delay. Under these circumstances, we think that the surrogate was entirely, justified in directing payment of the legacy, notwithstanding the pendency of the action for the construction of the will, particularly as it appeared that the plaintiff had not taken any steps even to serve most of the defendants in the action.

The order appealed from should be affirmed, with costs and disbursements.

Present — YaN Beuht, P. J., O’Beien and PaeKeb, JJ.

Order affirmed, with costs and disbursements.


author: Per Curiam :

text:
    The People of the State of New York ex rel. The Standard Gas Light Company, Appellant, v. Michael T. Daly, as Commissioner of Public Works, Respondent.

      Section 1314 of the Code of Civil Procedure applies to an appeal by a commissioner of public works — notice of appeal — stay of execution.

    The provisions of section. 1314 of the Code of Civil Procedure relating to a stay on appeal by a municipal corporation apply to a commissioner of public works taking an appeal from a judgment or order directing him as such officer to do some act affecting the corporate interests.
    Appeal by the relator, The Standard Gas Light Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 16th day of August, 1893, denying the.relator’s motion to compel the defendant to issue certain permits as required by a peremptory writ of mandamus. '

      Almon Goodwin, for the appellant.

      Theodore Gonnoly, for the respondent.
   Per Curiam :

On the application of the relator the court at Special Term granted a peremptory writ of mandamus commanding the respondent, as commissioner of public works, to forthwith award and grant permits to the Standard Gas Light Company to open certain streets for the purpose of laying mains and making main connections. From the order granting the writ an appeal was taken to this court, pending which this motion was made, and denied, on the ground that the appeal operated to stay proceedings under the writ.

The determination thus made we approve. Section 1314 of the Code of Civil Procedure provides, among other things, that “ upon an appeal taken by a domestic municipal corporation the service of the notice of appeal perfects the appeal, and stays the execution of the judgment or order appealed from without an undertaking or other security,” and we think the appeal taken from the order granting the writ was, within the meaning of the section, an appeal by a domestic municipal corporation. The commissioner of public works is a part of the city government, and the head of the executive department by means of which the corporation acts in regard to its public streets. (Consolidation Act, § 316.) The duties of the commissioner, in respect to the care and maintenance of streets, are the duties of the corporation acting through him, and his official acts within the limits of the authority conferred, because the office constitutes a part of the corporate organization and represents it, are acts of the municipal corporation. It is, therefore, entitled to the benefit of section 1314 when its commissioner of public works takes an appeal from a judgment or order directing him as such officer to do some act affecting the corporate interests.

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

Present — Yan Brunt, P. J., Follett and Parser, JJ.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    In the Matter of the Appointment of a Committee of the Estate of Alphonse J. Stephani, a Life Convict. Carl J. Stephani, Respondent, v. Josephine Stephani, Appellant.

      Appointment of a committee for a life convict — contents of the petition — when an admission of service is insufficient — a/ppea/rmice for a non-resident — the attorney's auilurrity must be shown ■ — jurisdiction of cow't.

    A petition for tie appointment of a committee of tie estate of a life convict must siow wio are tie ieirs at law and next of kin of tie convict, and a statement that certain persons mentioned in a petition are his next of kin is insufficient in the absence of a statement of facts showing how tie alleged relationship arises. (Laws of 1889, chap. 401.)
    An unacknowledged and unproved admission of tie service of a notice of an application for tie appointment of such a committee, purporting to be signed by such convict in the presence of a third person, in tie absence of proof of tie genuineness of either signature, is not due proof of the service of such notice upon him as required by statute.
    An unacknowledged or unproved admission of service cannot be read in evidence. By the appearance of an attorney for a non-resident, a court acquires no jurisdiction of the non-resident if it appears that such appearance was unauthorized, and the statement in the verification of a petition by such attorney that he is authorized to sign the same is insufficient.
    Before a court takes possession of the property of a convict, every fact necessary to confer jurisdiction must be established by common-law proof, and the authority of an attorney to act for a non-resident client must be shown by proof which will not disappear upon the death of the attorney.
    Appeal by Josephine Stephani, the mother of a life convict, from an order of the Supreme Court, made at the New York Special Term and entered' in the office of the clerk of the city and county of New York on the 8th day of November, 1893, appointing a committee of the estate of Alphonse J. Stephani, a life convict.

      Nelson S. Spencer, for the appellant.

      Horace Barnard, for the respondent.
   Per Curiam :

On the 10th of April, 1891, Alphonse J. Stephani was convicted of the crime of murder in the second decree, and sentenced to imprisonment for life, under which judgment he is now confined. It is alleged in the petition by which these proceedings were instituted that eight persons, whose names are stated, are the next of kin of the convict, and that one of them is his mother and another is an uncle, but the relationship of the others to the convict is not stated, nor are any facts stated from which their relationship to him can be ascertained.

The statute under which this proceeding was instituted (Chap. 401, Laws of 1889) provides :

“ § 1. Whenever any person has been convicted and sentenced to imprisonment in this State for life, the husband, wife, relatives or next of kin, or any creditor of such person, may .apply to the Supreme Court, at a Special Term thereof in the judicial district in which said person resided at the time of his conviction, for the appointment of a committee of such person’s estate, both real and personal.

“ § 2. Such application shall be made upon personal notice of not less than twenty days to such convicted person, and to the district attorney of the county where the conviction was had, and upon notice to such other persons as would be entitled to notice of application for the probate of the will of such convicted person if he were then dead, leaving a will of real and personal property, to be given in like inanxfer as notice of application for such probate. The application shall, among other things, set forth the amount of the property of such person, and the names and residence of his heirs at law and next of kin, as near as the same is known or can be ascertained by the applicant. Upon such application, and due proof of the service of the notice herein required, the court may, in its discretion, appoint a committee of the estate of such convicted person.”

The statute requires that all persons have notice of the application who would be entitled to notice of an application to probate the will, or for letters of administration on the estate of the convict in case of his death. The statement that six of the persons mentioned in the petition are the next of kin of the convict is a conclusion, there being no facts stated showing how the alleged relationship arises.

There is no allegation in the petition showing that the persons named as next of kin answer the description of the term heirs at law of the convict, and the failure to allege in the petition, or to prove on the return of the citation, who answered the description of heirs, and that all had been duly notified, was a fatal defect.

The statute requires that the application shall be made upon personal notice of not less than twenty days to the convicted person, and it also provides that a committee cannot be appointed until after the proof of the service of the notice has been made. There was no legal proof of service of the notice upon the convicted person. The only evidence of service was an admission, which purports to be signed by the convict, in the presence of Charles E. Durston. The admission is not acknowledged nor the genuineness of either signature proved in any way. This was not due proof of service of the notice required to be given by the statute.

There are also two of the alleged next of kin as to whom there is no proof of service. Their alleged admissions of service, not being proved, cannot be read in evidence.

Nor do we think that the court should act upon a petition of a non-resident signed only by his alleged attorney.

It is true that the attorney, in the verification of the petition, states that he is authorized to sign the petition, but that is only his conclusion the same as is his allegation in the petition as to next of kin. If the court was in possession of the evidence upon which the attorney concludes that lie is authorized to appear for the non-resident it might be that it would come to a different conclusion from the attorney.

It is well settled that by the appearance of an attorney for a nonresident the court acquires no jurisdiction if it should appear that such appearance was unauthorized. (Nordlinger v. De Mier, 54 Hun, 276 ; Vilas v. P. & M. R. R. Co., 123 N. Y. 440.) In the case at bar there is no competent evidence of the authority of the attorney to appear, his mere statement to that effect being no evidence of the fact, as above stated.

"We think that before the court takes possession of the property of a prisoner every fact necessary to confer jurisdiction should be established by common-law proof, and certainly the authority of an attorney to act for a non-resident client should be shown by proof which will not disappear by the death of the attorney, and the whole proceeding declared null and void upon a disavowal by the alleged client.

Tlie order appealed from should be reversed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., and O’Brien, J.; Follett, J., not sitting.

Order reversed, with ten dollars costs and disbursements.


text:
    Eliza M. Harrison and Another, as Executors, etc., Appellants, v. William H. Harrison and Others, Respondents.

      Injunction — costs of the, action, how fcur included in the damages caused, thereby-— effect of the improper admission of evidence.

    The fact that an injunction was granted, pending an action which was decided in favor of the defendants therein, does not entitle the defendants to recover as damages all the costs and expenses incurred in the defense of the action; they are only entitled to recover the damages, sustained hy reason of the granting of the injunction.
    Where no objection was taken to the admission of evidence offered, a reversal for the reason that such evidence was incompetent will not he granted.
    In ascertaining the damages of a defendant resulting from an injunction there should he deducted from his cost of defending the action and vacating the injunction, as found hy a referee, the amount of the costs awarded hy the j udgment to such defendant and paid hy the plaintiff to the defendant’s attorney.
    Appeal by the plaintiffs, Eliza M. Harrison and another, as executors, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 21st day of November, 1893, confirming the report of a referee.
    This proceeding was brought to ascertain by a reference the amount of the damages sustained by the defendant by reason of an injunction having been granted in the action.

      Daniel Daly, for the appellants.

      Michael A. Quimlan, for the respondents.
   Per Curiam :

This proceeding was conducted on the erroneous theory that because an injunction was granted pending the action which resulted in favor of tbe defendants, therefore, they were entitled to recover as damages all the costs and expenses incurred in defending the action; whereas they were only entitled to recover the damages sustained by reason of the granting of the injunction, which, so far as the evidence discloses, consisted of the expenses incurred in attempting to have it dissolved. But as no objection was taken to the admission of the evidence offered, a reversal for that reason will not be had.

The referee has found that the total cost to the defendants of the action and of this proceeding, including the expense of the motion to vacate the injunction, was $200 ; but it appears that the defendants were awarded by the judgment, and their attorney has received from the plaintiffs, $115, which sum the referee should have deducted from the total amount which he found had been incurred by the defendants in the action. (Howell v. Miller, 5 Month. Bull. 88.)

The order appealed from should be so modified as to direct that the plaintiffs pay to the defendants the sum of eighty-five dollars, and as so modified affirmed, without costs.

Present — VAN Brunt, P. J., O’Brien and Parker, JJ.

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


text:
    The American Horse Exchange, Limited, Respondent, v. Jacob Strauss and Max Hamburger, Appellants.
    Attachment— the facts must be set up.

    In an attachment proceeding, the facts showing the alleged fraudulent action of the defendants must be set up to enable the court to determine whether the conclusions drawn therefrom by the affiant were well founded.
    Appeal by the defendant, Max Hamburger, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 9th day of November, 1893, denying the defendant’s motion to vacate a warrant of attachment.

      S. Feuehwanger, for the appellants.

      F. B. Caudler, for the respondent.
   Per Curiam :

Tbis motion is based upon various grounds, only two of wbicb it is necessary for us to consider.

Tbe first is tliat there are two grounds of attachment stated, each of which is inconsistent with the other, and the same facts could not establish both propositions. It is impossible for us to tell which ground the judge who granted the attachment considered to be established by the affidavits.

In the next place, the allegations in the affidavit in regard to fraudulent action upon the part of the defendant are entirely conclusions of the affiant, no facts whatever being set up on which such conclusions rest,

These facts must be set up in order to enable the court to determine whether the conclusions derived by the affiant are well founded.

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

Present — YaN BRUNT, P. J., O’BrieN and Parker, JJ.

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


text:
    Edward S. Stokes, Respondent, v. William E. D. Stores, Appellant.

      Pa/rtial failure of the consideration of a contract.

    A contract, a portion of the consideration of which was that one of the parties thereto should purchase from a third person certain shares of stock, construed and enforced, notwithstanding the failure of such party to purchase such, stock hy reason of the refusal of the holder thereof to sell him the same.
    Appeal by the defendant, William E. D. Stokes, from portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 5th day of September, 1893, rendered upon the decision of tbe court, after a trial at tbe New York Special Term, dismissing tbe plaintiff’s complaint.

      Artemus H. Hobnes, for tbe appellant.

      Esek Oowen, for tbe respondent.
   Per Curiam :

On tbe 18th of August, 1891, tbe litigants entered into tbe following contract:

“ This Agreement, made tbe 18th day of August, 1891, between Edward S. Stokes and W. E. D. Stokes, witnessetb:
Whereas, tbe said W. E. D. Stokes, bas heretofore, with tbe consent of said Edward S. Stokes, purchased from Cassius H. Bead, 1,250 shares of his preferred stock and 500 shares of bis common stock of tbe Hoffman House, a corporation, and with tbe knowledge and consent of said Edward S. Stokes is about to purchase from said Bead tbe remainder of bis stock, to wit, 1,963 shares of common stock, or a portion thereof, with the intent that they may together be tbe owners of tbe whole of tbe stock of said corporation.
Whereas, tbe whole of tbe issue of five hundred thousand, of bonds of said ‘Hoffman House,’ secured by a mortgage to tbe Farmers’ Loan and Trust Company — except twenty-five thousand dollars given up and canceled — are now held and owned by said Edward S. Stokes, except a portion held and controlled by him as a pledge from said Bead for money due by him to said Edward S. Stokes.
Whereas, tbe said Edward S. Stokes hereby declares that tbe indebtedness of the old firm of C. H. Bead & Co. bas been paid and extinguished, except tbe contested claim now in suit against them by John W. Mackay, except tbe claim against them by Edward S. Stokes, and except about fifteen thousand dollars for taxes which said C. H. Bead & Co. are bound to pay, and further declares that there is no indebtedness of tbe ‘ Hoffman House,’ except as shown in their balance sheet of 31st of July, 1891, for $66,353.49 for current expenses.
“Now, therefore, in consideration of the premises, and .of the covenants herein by eaSh made to the other, and for a good and valuable consideration by each paid to the other, the said parties hereby covenant and agree as follows:
First. Neither of said parties will sell any of bis stock of the Hoffman House without first consulting with and offering to sell the same to the other, and if a sale is made by one, the other party shall have the option to make it a sale for joint account.
Secondly. Said Edward S. Stokes shall have for his services as an officer of said corporation a salary not to exceed four hundred dollars a month. No new enterprise or business shall be undertaken, or any' liability incurred by said corporation outside the regular busi-néss of managing the present hotel, restaurant and cafés, except with the express consent in writing of said W. E. D. Stokes.
“ Thirdly. The said ~W. E. D. Stokes shall have two of the directorships of said corporation for himself or his nominees.
“Foiorthly. Eor the consideration aforesaid the said Edward S. Stokes guarantees the said ~W. E. D. Stokes that there are no other claims and debts against the Hoffman House,’ except those shown on said balance sheet of 31st of July, 1891, and the current expenses, and guarantees and indemnifies him against all claims against the Hoffman House’ by said O. H. Read & Co., or John W. IVIackay, or said Edward S. Stokes, or any other persons as the creditors of said C. H. Read & Co.
“ Fifthly. The said Edward S. Stokes further covenants and agrees not to sell or dispose of any of the bonds of £ the Hoffman House,’ owned or held by him as aforesaid, without the express consent of said "Wi E. D. Stokes, and also that the $25,000 of the $50,000 of bonds received from said Read, not yet canceled, shall be canceled pursuant to the terms of the mortgage on 1st of July, 1892, and meantime held solely for that purpose, and no interest shall be paid thereon.
“ Sixthly. And as security for these guarantees for a loan of about $32,000 and for any obligation of said Edward S. Stokes to W. E. D. Stokes, connected with said Read, and against any foreclosure of the said mortgage, said Edward S. Stokes has deposited with said W. E. D. Stokes bonds of said ‘ Hoffman House ’ to the par value of $150,000.
“ Seventhly. The said W. E. D. Stokes agrees to sell and transfer to said Edward S. Stokes one-half of the whole, or of such portions of said 1,963 shares of common stock as he may purchase from said Read, at the price he pays for said shares, with interest at six per cent on bis note at twelve months, with one renewal, if he desires,, for twelve months longer, with the stock so held as collateral. TJpon payment of said price, at the time above specified, the shares sold be delivered to said Edward S. Stokes, and he shall in the meantime receive the dividends thereon.
“Eighthly. For any violation of this agreement, each party shall have a claim and charge against the other on the books and accounts of the ‘ Hoffman House.’
“ In witness whereof, we have hereto set our hands and seals on the day above written.
“E. S. STOKES.
“ W. E. D. STOKES.”

It was conceded by the pleadings and on the trial that only $125,000 of the bonds mentioned in the sixth paragraph of the contract had been delivered to the defendant, and the only issue litigated was whether’ the defendant was entitled to a judgment directing the plaintiff to deliver to the defendant the remainder of the bonds. Among other findings, the court found:

“IX. The only consideration for the guarantees made by the plaintiff in the contract, and for the additional security from him therein provided for, that was proved upon the trial was the statement on the face of said contract that the defendant was about to-purchase from said Cassius H. Head 1,963 shares of the Hoffman House common stock, or a portion thereof, with the intent that the' plaintiff and defendant might together be the owners -of the whole of the stock of the said corporation, and the further agreement that the plaintiff should have the privilege of buying from the defendant one-half of the stock that the defendant should purchase from said Head at the price paid for the same.”

Hjoon this finding, the court based the following conclusions:

“ I. The true construction of the contract of August 18, 1891, is-that the understanding of the parties was that the defendant should purchase of Head the whole of his 1,963 shares of stock, or such portion thereof as should be sufficient to make the parties to said contract the sole owners of the whole of the stock of the Hoffman House. In other wrords, the defendant was to buy the whole of said stock, or such portion thereof as the plaintiff should not buy.

“ II. The defendant not having purchased the said stock of Read within a reasonable time from such contract, and the proof being that he has been unable to purchase, by reason of the refusal of 'Read to sell, the contract cannot be enforced against the plaintiff.”

The court found that the contract had not been abrogated nor modified by the parties, but that it remained in full force; and that there being nothing in the evidence which aids in its construction, the intent of the parties must be derived from the terms of the written agreement.

"We are unable to agree with the learned trial court that the only consideration for the guarantees made by the plaintiff and for the security provided for in the contract, was the statement that defendant was about to purchase 1,963 shares of the Hoffman House stock, together with the privilege of the plaintiff’s taking one-half of the shares so purchased at their cost.

It is expressly provided in the sixth clause that one of the considerations for the pledge of $150,000 in bonds was the loan of about $32,000 from the defendant to the plaintiff, which was outstanding at the time of the trial. The defendant nowhere binds himself to purchase any number of shares from Read, but it was evidently believed by both parties when the contract was made that he would have no difficulty in making purchases at satisfactory rates to the parties to the contract. There is no provision in the contract dependent on the purchase of these shares except the seventh clause, which provides that one-lialf of all purchases shall be sold by defendant to the plaintiff at their cost. These litigants knew when the contract was entered into that Read could not be compelled to sell his shares, and so they wisely forebore from inserting in the contract a provision that a certain number of shares should be purchased which both parties knew might be impossible of performance.

It seems to us that the provisions contained in the contract in respect to the purchase of shares from Read and their sale to the plaintiff, are independent ones, and that the obligation of the plaintiff to provide the securities mentioned in the sixth clause is not affected by the failure of the defendant to do that which was impossible.

. There is no evidence in tbe case wbicli tends to show that the defendant did not in good faith attempt to purchase the shares of Read. Indeed, the court finds that the defendant has repeatedly attempted to purchase Read’s shares, but has been unsuccessful. There is no evidence that defendant has failed to perform any of his stipulations, and, under such a state of the evidence, we are of the opinion that the defendant made a case which entitled him to a judgment directing the plaintiff to deposit with the defendant, as collateral security for the plaintiff’s obligations mentioned in the contract, the $25,000 in Hoffman House stock (which it is conceded has not been deposited), as required by the terms of the contract.

That part of the judgment appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event.

Present — YaN BbüNt, P. J., Follett and Paekeb, JJ.

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


author: Dwight, P. J.:

text:
    Rebecca B. Evans, Respondent, v. Jennie A. Howell, Appellant, Impleaded with Another.

      Windings of fact — designated as “conclusions of law” — review of, at General Term— case not containing all the evidence.

    The General Term is not permitted to review findings of fact when the appeal hook does not purport to contain all the evidence.
    When, on appeal from a judgment in favor of the plaintiff entered on the report of a referee, the appeal hoolc does not purport to contain all the evidence, and there was no request hy the defendant to find any fact in support of the defense interposed, the General Term is confined to the inquiry whether the findings of fact actually made support the conclusions of law reported hy the referee, and these, in turn, the judgment directed hy him.
    Findings of fact, in a referee’s report, will he given effect as such on appeal, although they may stand in the report under the designation of conclusions of law.
    Appeal by the defendant, Jennie A. Howell, from a judgment of the Supreme Court in favor of the plaintiff, rendered at Special Term and entered in the office of the clerk of Livingston county on the 13th day of June, 1892, upon the report of a referee.

      O. W. Daggett, for the appellant.

      T. J. Gamble, for the respondent.
   Dwight, P. J.:

The action was to foreclose a contract of purchase and sale of real estate. The defense was usury. The issue was, therefore, necessarily one of fact, with the burden of proof on the defendants. But we are not permitted to review the findings of fact for the reason that the appeal book does not purport to contain all the evidence given on the trial (Aldridge v. Aldridge, 120 N. Y. 614); nor was there a request by the defendants to find any fact in support of the defense.

We are, therefore, shut up to the inquiry whether the findings of fact actually made support the conclusions of law reported by the referee, and these, in turn, the judgment directed by him. And here it is to be observed that there is in the findings of fact- — -so denominated — -no finding upon the question of the corrupt and usurious agreement between the parties, which is averred in the answer of the defendants, but all the affirmative facts are found which would entitle the plaintiff to the relief demanded in her complaint. Probably, in the absence of any request to find on the issues raised by the answer, the findings mentioned were sufficient to support the formal conclusions of law and the direction of judgment in favor of the plaintiff. But in that part of the report which is denominated “conclusions of law” we discover findings which amply negative the averments of the answer; they are as follows:

Second. That the transaction between the jfiaintiff and the defendant Jennie A. Howell was a purchase and sale and not a loan, and the same was not usurious.

Third. That no agreement for the loan of money at a usurious rate of interest was ever made by the plaintiff with the defendants, or either of them.

Fourth. That no agreement for the loan of money was ever made by the plaintiff with the defendants, or either of them-

These are, undoubtedly, findings of fact and will be given effect as such notwithstanding the designation under which they stand in the report. (Sherman v. The Hudson R. R. R. Co., 64 N. Y. 254; Matter of Clark, 119 id. 427.)

No exception taken on the trial is presented in the argument of counsel for the appellant, and none seems to require discussion here.

The judgment appealed from should be affirmed, with costs.

Lewis, Haight and Bkadley, JJ., concurred.

Judgment appealed from affirmed, with costs.


text:
    John Wolfe and Ottilie Wolfe, Respondents, v. The Conkey Avenue Savings, Aid and Loan Association, Appellant

      Mutual loan associations — effect of a/rtieles of association — acts of directors in derogation of — precedence of withdrawals over loams.

    The articles of association of every organization for mutual benefit, organized UDder the “act for the incorporation of building, mutual loan and accumulating fund associations” (Laws of 1851, chap. 122) constitute the contract between the association and the individual members, and no provision of such contract is subject to be abrogated or its obligation impaired by any act of the board of directors which is not expressly authorized by the articles themselves.
    When the articles of association of such a mutual loan association provide that members may withdraw one or more of their shares, on giving notice, to be received in the regular order of business, and that the principal (and on final withdrawal, the dividends) on shares applied to be withdrawn shall be refunded to the withdrawing member “as soon as the necessary funds are in the treasury,” such provision controls and limits a preceding provision that “all moneys received by the association shall be loaned to the members, except as hereinafter provided,” and it is not competent for the board of directors to prefer applications for loans to applications for withdrawals, and thus deplete the treasury of funds which would otherwise be sufficient to pay withdrawals in full, in their order.
    Under such provisions in the articles of association, applications for withdrawal have, in the order of their filing, precedence over all other uses of the funds, except the actual expenses of the association.
    An unauthorized application, by the board of directors, of funds to loans in preference to withdrawals, cannot defeat the right of a withdrawing member to recover from the association the principal and dividends on his shares, when it appears that but for such application there would have been the necessary funds in the treasury, during the interval between the filing of his notice and the commencement of his action, to pay all previous applications for withdrawal as well as his.
    Appeal by tbe defendant, Tbe Oonkey Avenue Savings, Aid and Loan Association, from a judgment of tbe County Court of Monroe county in favor of tbe plaintiff, entered in the office of tbe clerk of that county on tbe 29tli day of June, 1893, upon a decision of tbe court, after a trial by the court without a jury.
    The defendant is a domestic corporation, organized under the act of the State of New York, entitled “ An act for the incorporation of building, mutual loan and accumulating fund associations ” (Laws of 1851, chap. 122), and the acts amendatory thereof.-

      J. J. Snell, for the appellant.

      H. J. Stull, for the respondents.
   Dwight, P. J.:

The action was first tried in the Municipal Court of JElochester,, and from the judgment there rendered for the plaintiffs an appeal was taken to the County Court. The action was brought to recover the amount standing to the credit of the plaintiffs on the books of the defendant association on the 18th day of March, 1891, on which, day the plaintiffs filed with the association their notice of withdrawal of all their shares, with the dividends due thereon. The notice of withdrawal was filed under a provision of the articles of association of the defendant, as follows : “ Members not having received a loan may withdraw one or more of their shares from the association at any time, by giving notice in writing to the board, and the liability to pay further dues and the right to dividends shall cease with the filing of said notice. Applications for withdrawal shall only be received in the regular order of business, and the principal theretofore paid on such share or shares shall he reftmded to such members as soon as the necessary funds are in the treasury. * * * Dividends shall not be paid to any member except upon the final withdrawal of all his shares.” (Art. XIV, § 2.)

The plaintiffs had never had a loan from the association, and having given notice of the final withdrawal of all their shares they were entitled to receive, with the principal paid on such shares, the dividends due or- declared thereon down to the filing of their notice of withdrawal. The amount then standing to the credit of the plaintiffs, including dividends, was the sum of $771.25,' for which sum, with interest, judgment was rendered in their favor. It seems apparent that the single test of the plaintiffs’ right to be paid the amount then standing to their credit and, consequently, their right to recover in this action, is the question whether, at any time after the filing of their notice of withdrawal, and before the commencement of the action, there were the necessary funds in the treasury of the association to make such'payment. Of course, applications-for withdrawal were entitled to be honored in the order of their filing, and tbe necessary expenses of conducting tbe business of tbe association must have precedence of payment over any sucb application. But the undisputed evidence in tbe case establishes tbe fact, which is found by tbe court, that over and above all sucb previous applications and tbe actual expenses of tbe association, during the interval mentioned, there was a balance of moneys received in the regular course of business more than sufficient to pay tbe amount due to tbe plaintiffs But tbe proofs also show that this balance, and much more, was exhausted by loans to members made during the same interval. And here arises tbe single question in this case, viz., whether tbe defendant bad a right, under its articles of association, to appropriate any of its funds to the making of loans while withdrawal notices were on file which had not been honored ? It seems very clear that this question must be answered in the negative The only pretext for the contrary contention seems to be found in a resolution of the board of' directors adopted some time before the filing of the plaintiffs’ notice, to the effect that only one-half of the receipts of the association should be. applied to the payment of withdrawals and the other half should be loaned to members. But the articles of association of every organization for mutual benefit, like the defendant, constitute the contract between the association and the individual member, and no provision of such contract is subject to be abrogated or its obligation impaired by any act of the board of directors which is not expressly authorized by the articles themselves.

As we have seen, the articles in this case (Art. XIV, § 2, supra) plainly give to applications of withdrawal precedence over all other appropriations of the funds except, from necessity, the actual expenses of the association. The provision is that such applications shall be paid u as soon as the necessary funds are in the treasury; ” and this provision necessarily limits and controls the previous provision for loans, which is as follows: “ Art. 10, § 1. All moneys received by the association shall be loaned to the members, except as hereinafter provided?

This, it seems to us, is all there' is of this case. Under the provisions of the articles of association it was not competent for the board of directors to prefer applications for loans to applications for withdrawals, and but for such preference, as the undisputed evidence shows, there were the necessary funds in the treasury, during the interval between the filing of the plaintiffs’ notice and the commencement of their action, to pay all previous applications of the same character as well as that of the plaintiffs.

The judgment of the County Court was, therefore, right and must be affirmed.

Lewis and Haight, JJ., concurred.

Judgment appealed from affirmed, with costs.


text:
    Jennette E. Gardner, Respondent, v. Charles B. Benedict, as Executor, etc., of Henry W. Gardner, Deceased, Appellant.

      Ante-nuptial agreement — contest as to its execution — contradiction of a witness by proof of declarations of the widow against her interest — impropriety of counsel acting as a witness.

    On the trial before a referee of an action brought by a widow against the personal representative of her deceased husband, upon an alleged ante-nuptial agreement in writing, where the execution of the instrument by the husband was in issue, the plaintiffs case was established by the testimony of her son by a former marriage, who drafted the instrument, but his testimony was sought to be discredited by evidence of the defendant and of a grandson of the deceased as to declarations of the plaintiff, made soon after her husband’s death, that she did not know of any claims against, his estate and that she had none. The referee decided in favor of the plaintiff.

      Held, that, in considering such testimony in reference to declarations, the courts are constantly mindful of the liability of the witness to be mistaken even when honest, and of the facility with which it may be fabricated if he is otherwise;
    That it was apparent that the declarations might have been made and yet not discredit the testimony of the plaintiffs witness in any degree; and that it was for the referee to say how far they did discredit it, if at all.
    It was further sought to discredit the testimony of the plaintiffs witness by the fact that the plaintiff’s counsel, who it was assumed might have corroborated such testimony, was not called to do so. The witness testified that he prepared the instrument in suit for the signature of the deceased mainly at the dictation of the counsel, and within a few minutes after its execution took it into the latter’s office and showed it to him.

      Held, that the conclusion of discredit was by no means a necessary one;
    That the testimony of the proposed witness would probably not have been admissible except as to the single fact that the contract was exhibited to him after it was executed, and hardly as to that unless he could verify the signature of the deceased;

      That as the proposed witness was acting as counsel for the plaintiff on the trial, his declining to he at the same time a witness for his client was only consistent with a rule of professional conduct which could not have been violated with propriety;
    That the inference, if any, to he drawn from the omission to call him as a witness, was a question for the referee, with whose conclusion in that respect the court would not interfere.
    Appeal by tbe defendant, diaries B. Benedict, as executor, etc., of Henry W. Gardner, deceased, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of Wyoming county on tbe 3d day of May, 1893, upon tbe report of a referee.

      Bowen dk Washburn, for tbe appellant.

      M. E. dk E. M. Ba/rtlett, for tbe respondent.
   Dwight, P. J.:

The action was on an alleged ante-nuptial agreement of tbe defendant’s testator, Henry W. Gardner, with tbe plaintiff, who is the widow of tbe deceased. Tbe parties were married in May, 1882, and lived together until the death of the husband in December, 1891. At tbe time of their marriage tbe deceased was a widower of the age of seventy-three years, and tbe plaintiff, of tbe age of sixty-two years, was the widow of one Patrick R. Gardner, to whom she was married at the age of seventeen, and who died in 1810.

The complaint alleged that Patrick R. Gardner was tbe owner at tbe time of bis death of a farm of 140 acres and “ a large amount of personal property; ” that by bis last will he gave the use of all his property, real and personal, to his widow, the plaintiff, during her life or widowhood, and provided that upon her death or remarriage the whole of the property should go to his children; that such provision was made and accepted by the widow in lieu of dower, and that at the date of tbe contract in question she was enjoying tbe possession, rents, profits and income of all the property above mentioned.

It is further alleged that when, in March, 1882, tbe defendant’s testator proposed marriage to tbe plaintiff, she informed him of the provisions of her late husband’s will and. of her acceptance of it in lieu of dower, and spoke of the consequences to her, in a pecuniary point of view, in case she remarried, and that the deceased thereupon proposed to give her the sum of $3,000 if she would marry him, and to secure that sum to her in a manner satisfactory to her, and that it was agreed between them that the matter of securing the payment of $3,000 should be arranged by the deceased with the son of the plaintiff, Charles J. Gardner, acting for her, and that on the 9th day of May, 1882, the deceased duly executed, acknowledged and delivered to the plaintiff an instrument in writing, under his hand and seal, whereby, in contemplation of marriage with the plaintiff, he promised and agreed that in the event of such marriage his personal representative should pay to her, or to her personal representatives, the sum of $3,000 ninety days after his death, which she accepted, and in consideration thereof was married to him on the next day, and continued to live with him as his wife until he died.

The only issue made by the answer of the defendant, which is discussed by counsel for the defendant on this appeal, is the simple issue of fact which is joined by the defendant’s denial, on information and belief, that the promise was ever made, or that the instrument in writing was ever executed by the deceased. A careful examination of the evidence satisfies us that the finding of the learned and experienced referee upon that issue, in favor of the plaintiff, cannot be disturbed. The case was completely established by the testimony of her son, Charles J. Gardner, if credit is to be given to him, and as the case stands on the record we should have been greatly surprised if credit had been denied him. .The witness, as he is presented by the record, is altogether worthy of credit; the testimony he gives is altogether credible in itself, and it is not contradicted in any particular. It is sought to be discredited only by evidence of declarations of the plaintiff, soon -after her husband’s death, that she did not know of any claims against his, estate' and that she had none, and by the fact that a person who, it is assumed, might have corroborated the testimony in question, was not called to do so. It is unnecessary to dwell upon the alleged declarations of the plaintiff. The testimony on that subject is given by the defendant and a grandson of his testator. The courts are constantly mindful of the liability of such testimony to be mistaken when the witness is honest, and of the facility with .which it may be fabricated if he is otherwise, and it is apparent that the declarations may even have been made and yet not discredit the testimony of Charles J. Gardner in any degree. It was for the referee to say bow far they did so, if a.t all, in tbis case.

The same may, and, indeed, must, be said in respect to the other alleged ground for discrediting the testimony of the principal witness, but so much stress is laid upon it in the argument of counsel that it is proper to give it a moment’s attention at this point. Charles J' Gardner testified that he prepared the written contract for the signature of the deceased, mainly at the dictation of Judge Byron Healey, then, as for many years, county judge and surrogate of Wyoming connty. Mr. Gardner had lately ended a second term as county clerk of the county, and at that time had an office in the court house, across the hall from Judge Healey’s. He testifies that having it in his mind to prepare such a contract, he stepped into Judge Healey’s office to ask his advice how to do it, and that the latter substantially dictated for him the contract which he wrote. He also testifies that within a few minutes after the contract was executed he took it into Judge Healey’s office and showed it to him. Judge Healey appeared as counsel for the plaintiff on the trial of this action, and himself conducted the examination of the witness Gardner, in which these facts were elicited, but he did not himself take the stand to testify in the case. It is strongly urged by counsel for the defendant that this fact should have discredited the testimony of Mr. Gardner. The conclusion is by no means a necessary one. In the first place, the testimony of the proposed witness would, probably, not have been admissible, except as to the single fact that the contract was exhibited to him after it was executed, and hardly that, unless he was prepared to verify the signature of the deceased. All that preceded the execution of the instrument was res mter alios, and the fact that Gardner wrote in Judge Healey’s office, and at his dictation, afforded no presumption that it was ever executed by the deceased, and the testimony of Gardner does not go far enough to show that Judge Healey had the opportunity to examine the signature, nor that he would have been able to verify it if he had done so. But, besides all this, Judge Healey was counsel for plaintiff on the trial, and, being such, his declining to be at the same time a witness for his client, was only consistent with a rule of professional conduct which could not have been violated with propriety, so that it was, at the outset, a question of choice with the plaintiff whether she could best disípense with his services as her counsel or refrain from calling him as' a witness, if, indeed, he could give any testimony which would be admissible in the case. But, after all, the inference, if any, to.be drawn from the omission to call Judge Healey as a witness, was a question for the referee, and the court will certainly not interfere with his conclusion in that respect.

Only one other question was presented by the argument of counsel for the defendant which seems to call for consideration here. That question arises upon rulings of the referee in striking out and after-wards reinstating (both on motion of the plaintiff) certain evidence in the case which had been introduced by her, and objected to by the defendant. The evidence related to the provisions of the will of Patrick Gardner, the former husband of the plaintiff, and to the amount and value of the property, the use and income óf which the plaintiff was to enjoy during her widowhood. We think it an answer to all the criticism of counsel, on the course of the trial in this respect, that the evidence was. entirely admissible; that it was an excess of caution on the part of the plaintiff to move to strike it out, and that there was no error in its readmission. The facts involved were, as we have seen, substantially alleged in the complaint ; they were treated as issuable facts by the defendant by admitting them in part and denying them in part by his answer they were recited in the written instrument itself, on which the action was brought as inducement and consideration therefor, and as such they are inseparable from the plaintiff’s case.

We find no exception in the record which points to error either on the trial or in the findings or refusals to find by the referee. The judgment should, therefore, be affirmed.

Lewis, Haight and Bead ley, JJ., concurred.

Judgment appealed from affirmed, with costs.


text:
    William C. Benfield, Respondent, v. The Vacuum Oil Company, Appellant.

      Master and servant — explosion of gases generated^ in heating pa/raffine — personal injury — failure to prescribe rules — duty to instruct the servant — the servant’s experience.

    The doctrine of the liability of the employer because of his failure to prescribe rules for the conduct of his servants has application only to a case where it is sought to charge the employer with responsibility to one servant for the act or neglect of a fellow-servant in the same employment; it does not apply in the-case of a servant who is injured through an.act in which he himself alone is engaged.
    The master is not required to exercise the highest possible diligence to instruct his servant in every conceivable particular of the circumstances in which he may be placed, or in every possible detail of his conduct in the performance of his duties.
    The requirement in this respect is only that the master exercise ordinary and reasonable care to see that the servant possesses a competent knowledge of the particular dangers to which he is exposed in doing his work, and of the precautions necessary to be taken to guard himself against those dangers.
    In the exercise of that care, the master has the right to assume that the servant brings to the work ordinary intelligence and powers of observation and the capacity to learn something from observation and experience.
    The duty of the master to instruct the servant against dangers incident to his work extends only to such dangers as are known to the master, himself, or which are reasonably to be apprehended from the nature of the employment.
    In an action brought by an employee against his employer to recover damages for a personal,injury resulting from an explosion of gases in a tank, in which paraffine was being heated by the application of steam, it appeared that the explosion was caused by the act of the plaintiff, while carrying a lighted lantern, in raising the lid of the tank to cool the contents before adding fresh material, and that the plaintiff had had a practical experience of a year and a half in the performance of the same duties as those in which, he was engaged at the time of the accident. Negligence was charged against the defendant in that he failed to instruct the plaintiff as to the performance of his duties, and, especially, as to the use of a lantern near the tank.

      Held, that from his experience the plaintiff must have become acquainted with the properties of the substances with which he was engaged, and with the generation of explosive gases therefrom, and with the fact that it was unsafe to bring fire into contact with those gases;
    That a verdict which charged the defendant with culpable negligence in failing * to instruct the plaintiff in this regard was contrary to the law and the facts of the case.

      The plaintiff testified that during his whole experience he had been in the habit of doing the work assigned him in the same way as at the time of the accident, and that no explosion had ever before occurred.

      Held, that if this was true the inference was unavoidable that the conditions present at the time in question were materially different from those which usually lirevailed;
    That this tended to show that the danger then encountered was one not reasonably to have been apprehended by the defendant, and demonstrated that either the negligence of a fellow-servant, the engineer whose duty it was to regulate the application of steam to the tank, and who at the time in question had devolved his duty upon the plaintiff, or of the plaintiff himself who undertook the performance of that duty, contributed to the accident;
    And that in either case there could be no recovery in the action.
    Appeal by the defendant, The Vacuum Oil Company, from an order of the Supreme Court, made at the Monroe Circuit and entered in the office of the clerk of Monroe county on the 22d day of April, 1893, denying the defendant’s motion for a new trial made upon the minutes, .after a verdict had been rendered for the plaintiff.
    The action was brought to recover the damages resulting from personal injuries received by the plaintiff while in the employ of the defendant, alleged to have been caused by the defendant’s negligence.

      William JV. Gogswell, for the appellant.

      Ghamles Yam, Voorhis, for the respondent.
   Dwight, P. J.:

The plaintiff had been in the defendant’s employ for a year and a half, engaged in the same duties and exposed to the same dangers as at the time when the accident occurred from which the injury was received of which he now complains. The accident was the explosion of gas in a tank in which paraffine was being heated, and it was caused by the act of the plaintiff himself in raising the lid of the tank with a lighted lantern in his hand or hanging on his arm. The gas escaping from the open tank communicated with the flame of the lantern, and the explosion followed in which the plaintiff was burned and otherwise injured.

The paraffine tanks or boilers were outside of the building, and were buried in the ground, except the openings through which they were filled and emptied, and to which the covers were fitted. The tanks were beated by steam, introduced by means of coils of pipe, from which it was the duty of the engineer to shut off the steam, when sufficiently heated, and,'at the proper time after that, more of the cold and solid paraffine was added and the heat renewed. The cold paraffine was brought from the presses inside of the building in a hand cart and thrown or dumped into the tank, and this was the duty, among others, of the' plaintiff. The operation involved the danger of being splashed with the already heated contents of the tank, and to obviate this the men were in the habit of lifting the cover a suitable time beforehand in order to cool down the contents before filling.

It was for this purpose only that the plaintiff went to the tank at the time of the explosion. He had no need of his lantern, except to light his way to the tank; he had no occasion to inspect the contents or condition of the tank in any respect, but only to raise the lid; and for this purpose the lantern would have served him as well set down or hung up at a safe distance, as carried to the very mouth of the tank. The failure to observe this precaution was the sole causé of the accident, and the only question for the jury was “"Whose fault was it?” or “Was it solely the fault of the defendant ? ” Eor if it was even partly the fault of the plaintiff there can be no recovery in this action.

The plaintiff seeks to charge the fault to the defendant on the ground: (1) That it failed to give the plaintiff the necessary instruction as to the explosive character of the gases evolved from petroleum in the various processes of its refinement and manufacture; (2) that it. failed to provide proper lighting for the tank ; (3) that it failed to provide proper rules for the government of its employees.

The second and third of these grounds need not occupy very much of our time. It is plain that the doctrine of the liability of the employer for failure to prescribe rules for the conduct of his servants has application only to charge the employer with responsibility to one servant for the act or neglect of a fellow-servant in the same employment. In this case there was only one fellow-servant whose act or neglect seems to have borne any possible relation to the accident in question, and the plaintiff does not seek to charge the defendant with responsibility for his act or neglect. That servant was the engineer, whose duty to turn off the steam from the tank at the proper time was well understood by him, but who on tin's particular evening intrusted that duty to the plaintiff himself; so that if the steam was not shut off in time, or the tank was opened too soon after the steam was shut off, the plaintiff has only himself to blame.

In respect to the lighting of the tanks it was in evidence that there were some electric lights in the yard — though the plaintiff testified that they were not so situated that he could see at the tank which exploded — and that a new electric light had been put up, within a few days, on the outside of the building near the tank which could have been lighted by turning on the electricity by a switch inside, but the plaintiff testified that he did not know of its presence, and that the light was not turned on that night. But we do not consider these facts of much importance, because, as already appears, up to the time of the explosion, no light was necessary except to show the way to the tank, which, after his eighteen months’ experience, must have been very familiar to the plaintiff, and plainly did not require that his lantern should be presented at the very opening of the tank.

We are of the opinion, therefore, that the question in the case is narrowed down to the first of the grounds above enumerated, upon which negligence is alleged against the defendant, viz., the failure to give the plaintiff necessary instructions as to the dangers to be guarded against in the performance of his duties, and, especially, in the use of a lantern in proximity to the paraffine tanks. And, in this respect, it seems to us that the verdict which charges the defendant with culpable negligence, as the producing cause of the accident in question, was against the law and the facts of the case as it was made on the trial under review. ■

In the first place, it is to be observed that the defendant was not required to exercise the highest possible diligence to instruct the plaintiff in every conceivable particular of the circumstances in which he might be placed, or in every possible detail of his conduct in the performance of his duties. The requirement in this respect is only that the master exercise ordinary and reasonable care to see’ that the servant possesses a competent knowledge of the peculiar dangers to which he is exposed in doing his work, and of the precautions necessary to be taken to guard himself against those dangers; and in the exercise of that care the master has the right to assume that the servant brings to the work ordinary intelligence and powers of observation, and the capacity to learn something from observation and experience. (De Forest v. Jewett, 23 Hun, 490, 493; aff'd., 88 N. Y. 264.) Moreover, the duty to instruct against dangers incident to the work extends only to such dangers as are known to the master himself, or which are reasonably to be apprehended from the nature of the employment. (Devlin v. Smith, 89 N. Y. 470, 476; Stringham v. Hilton, 111 id. 188, 195, 196.)

In this case the plaintiff had had practical experience of a year and a half in the performance of the same duties as those in which he was engaged on the night of the accident, and it is impossible to believe that he had not in that time acquired some knowledge of the nature and properties of the substances with which he was engaged; that lie had not learned that the products of petroleum, under some conditions, and especially the condition of great heat, are capable of generating explosive cases, and that it is unsafe to bring fire into contact with those gases when they are being evolved.

But the plaintiff testifies that he had been in the habit, during the whole of his experience with the paraffine tanks, of doing the work assigned to him in the same way as on the night in question, and that no explosion had ever before occurred. If this is true — if he had habitually raised the lid of the tank with his lantern in his hand, or hanging on his arm, and done so with impunity, then the inference is unavoidable that the conditions present on the night in question were materially different from those which usually prevailed, and the only reason for that difference, which is suggested by the evidence, is that the heat in the tank was greater than it ordinarily was when the lid was raised, and that this was caused by leaving the steam on longer than was proper, and that the tank was opened too soon after the steam was shut off. This conclusion, if it afforded the correct hypothesis to account for the unusual and, indeed, unjuece-dented explosion, is important in. two respects as bearing upon the question of the defendant’s liability; for,jvrst, it tends to show that the danger here encountered was one not reasonably to have been apprehended by the defendant, and, second, it demonstrates either that the negligence of the fellow-servant, the engineer, who devolved bis own duty upon, the plaintiff, or of the plaintiff himself, undertook the performance of that duty, or of both, .contributed to occasion the accident and to produce the injury complained of, and in either case there could be no recovery in this action.

We think the motion for a new trial, which presented the questions here considered, should have been granted.

The order appealed from should, therefore, be reversed.

Lewis and Haight, JJ., concurred.

Order denying defendant’s motion for new trial granted, costs to abide the event.


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    George W. Booher, Appellant, v. William N. Stewart, Respondent.

      Agreement to work a farm, on shares — the title to the crop to remain in the owner until advances are paid — mortgage of the crops by the tenant.

    Under an agreement to work a farm on shares, which provides that the owner shall make certain advances to the worker to enable him to carry on the work, and that the title to the crop shall remain in the owner of the farm until such advances are fully repaid, the worker has, before payment of the advances, no property or interest in the crop which is capable of transfer by chattel mortgage to a third party, as against the owner of the farm.
    Such an agreement is, in efflect, a contract of hiring to work the owner’s farm, compensation to be rendered in a share of the crop, and is not in the nature of a lease, or chattel mortgage, or conditional sale, or pledging of the property of a debtor for the security of the creditor, and, hence, need not be in writing, or filed as a chattel mortgage, in order to give it precedence, in favor of the owner of the farm, over a chattel mortgage on the crop executed by the worker to a third party.
    Appeal by the plaintiff, George W. Booher, from an order of the Supreme Court, made at the Livingston Circuit and entered in the office of the clerk of Livingston county on the 9th day of February, 1893, denying the plaintiff’s motion for a new trial made upon the minutes of the court after a verdict had been rendered for the defendant.

      JE. A. Nash, for the appellant.

      J. R. Strong, for the respondent.
   Dwight, P. J.:

The action was trover for an undivided one-third part of a crop of oats raised on tlie farm of the defendant, by one Macauley, who took the farm to work on shares. The plaintiff claimed under a chattel mortgage given to him by Alacanley, and the real question in the case is whether, under the agreement of the defendant with Macanley, the latter had any property or interest in the crop which he conld transfer by chattel mortgage or otherwise.

The agreement was, as we have said, to work the farm on shares, bnt with many special provisions; among others, that the defendant should make certain advances to Macanley to enable him to carry on the work, and that the title to the crops should remain in the defendant until those advances1 were fully paid. There was some conflict of evidence in respect to the last-mentioned feature of the agreement, but the jury was abundantly justified in finding, as, under the submission of the case to them, they must be presumed to have found, that such was the agreement.

Under this agreement there seems to be no room for the contention of the appellant. Here was no lease nor was the relation of landlord and tenant created between the parties. It was, in effect, a contract of hiring to ivork the defendant’s farm, compensation to be rendered in a share of the crop. (Unglish v. Marvin, 28 N. Y. St. Repr. 68; Reynolds v. Reynolds, 48 Hun, 142, and the cases cited.) The entire crop belonged to the defendant, except as otherwise provided by the agreement, and by the agreement it was provided that the entire crop should continue to belong to the defendant until he was repaid the advances made by him. This agreement was not in the nature of a chattel mortgage, nor a conditional sale, nor a pledging of the property of the debtor for the security of the creditor, because the property was the creditor’s from the beginning, and was to become the debtor’s only on payment of his debt.

The case seems to be entirely within the doctrine of Andrew v. Newcomb (32 N. Y. 417), which case it closely resembles in its facts. Such being the nature and effect of the agreement, it was not necessary that it should be in writing nor filed as a chattel mortgage in order to give it precedence over the chattel mortgage of the plaintiff. Indeed, under such agreement Macauley had no property or interest in the crop which was capable of transfer by chattel mortgage, and the plaintiff took nothing by the paper executed to him.

We find no exception in the case which points to error on the trial, and conclude that the ordér ajipealed from must be affirmed.

Lewis, Haioht and Bradley, JJ., concurred.

So ordered.


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    The Phœnix Insurance Company and John York, Jr., Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.

      Wegligence — fire caused by locomotive spwrlcs — proof of clefects confined to one locomotive— submission of the case to the jury.

    When, on the trial of an action brought to recover from a railroad company the damages to a building caused by fire, alleged to have resulted from the negligent defective construction, repair or operation of one or more of the defendant’s locomotive engines, allowing large sparks to be emitted therefrom, it is shown that several engines passed the building shortly before the fire occurred, but all the evidence upon the question of defective construction, repair or operation, and of the emission of large sparks, is confined to one designated engine, so that if all the evidence relating to that engine wore eliminated no case against the defendant would remain, it is an error, fatal to a verdict for the plaintiff, for the court to instruct the jury to the effect that there was evidence in the case upon -which the defendant might be charged with actionable negligence in connection with other engines.
    Appeal by tbe defendant, Tbe New York Central and Hudson River Railroad Company, from an order made at tbe Wayne Circuit and entered in tbe office of the clerk of Wayne county on tbe 23d day of November, 1892, denying tbe defendant’s motion for a new trial made upon tbe minutes, after a verdicthad been rendered in favor of tbe plaintiffs, with notice of an intention to bring up for review an order entered in said clerk’s office on. the 12th day of December, 1892, granting an extra allowance to tbe plaintiffs.

      E. Harris, for tbe appellant.

      Wm. JV. Oogswell, for tbe respondents.
   Dwight, P. J.:

Tbe action was to recover damages, for tbe destruction by fire, of .a malt bouse and its contents, at North Rose in Wayne county, owned by tbe plaintiff: York and insured by tbe plaintiff, tbe Phoenix Insurance Company and its assignors. It was alleged that tbe fire resulted from tbe negligent construction, repair or operation of one or more of tbe defendant’s locomotive engines, employed by it on tbe line of tbe Rome, Watertown and Ogdensburgb railroad, whose tracks ran near tbe property destroyed.

Tbe case for tbe plaintiff was made out, as is usual in such cases, by evidence to tbe effect that a locomotive engine, which passed tbe malt bouse shortly before the fire was discovered, emitted sparks or burning cinders so large that they could not have passed through the meshes of a properly constructed spark arrester in good repair. The engine, to which all tbe testimony of this character related, was the one known as No. 14, “ a diamond stack ” engine, and was drawing a freight train to tbe east. There was also some attempt.on tbe part of tbe plaintiffs to show that the diamond stack is not so effective and reliable, as a spark arrester, as the “ extension front.” Tbe latter proposition was controverted by tbe defendant, and evidence tending to show that tbe spark arrester of engine No. 14 was either of defective construction or out of repair was met by evidence to the effect that the smoke stack of engine No. 14 was inspected by several persons immediately (or soon) after the fire and was found to be of the most approved construction of its class, and in perfect repair. Here was tbe conflict of evidence — on tbe one hand tbe testimony of several witnesses that they saw burning cinders in tbe air from this engine as large — variously — as cherries, as pigeon’s eggs, as butternuts, “ as big as' your thumb; ” and on the other band, tbe testimony of as many witnesses, of equal credibility, so far as the record shows, to the effect that there was at tbe same time, in tbe smoke stack of the same engine, a screen which must have .absolutely prevented the escape of,sparks or cinders of far less size than those described, and which was fully up to the requirements of care and diligence on the part of the defendants. It seems that the evidence of the first description above given impressed the jury as being the more probable and worthy of credit, and, accordingly, the plaintiffs had a verdict.

We deem it unnecessary to review this verdict on. the evidence because of wliat we regard as a manifest error in the submission of the case to the jury.

As may appear from the statement already made, the plaintiffs’ case depended mainly, if not wholly, upon evidence of the size and quantity of the sparks or burning cinders emitted from the smoke stack of the engine by which fire was communicated to the building, and, as we have already intimated, evidence of that character was confined to the case of the diamond stack engine No. 14. The fire occurred on the evening of IVIay 14, 1891, and was first discovered on the roof of the malt house between half-past eight and nine o’clock. Three trains of the defendant passed the station at North Rose, which was near the malt house, between eight and nine o’clock that evening. The first was a freight train drawn by extension front engine No. 19 going east at five minutes past eight. The next was the train drawn by engine No. 14, which arrived from the west at eight-twenty-five and ran east, past the malt house, onto a side track, and there waited for a passenger train which went by at eight-thirty-nine, immediately after which it backed up, again past the malt house, onto the main track, and then pursued its journey to the east. There is no possibility of mistake in identifying engine No. 14 with the engine which is described as emitting sparks of extraordinary size and quantity. All the evidence on that subject concurs in doing so. There is no mention of any sj>arks or fire •from engine No. 19, and of the passenger engine it is only said, by one witness, that he noticed “ a little bit of fire from her,” which, in the1 absence of-further description, may be presumed to have been the minute incandescent particles which may commonly be seen in the smoke of a locomotive engine at night. It was the engine of the freight train which ran onto the siding and waited for the passenger train, which followed the passenger train to the east, which was the last engine to pass before the fire was discovered, which passed fifteen or twenty minutes before the alarm was given, this was the engine, and the only one, concerning which any evidence was given which tends, in any degree, to charge the defendant with negligence in respect to its construction or repair or management; and this 'was, beyond dispute, engine No. 14. This-was the engine which was described as laboring ” with its burden as it pushed and drew it back and forth on the siding and the main track, and as emitting large sparks in doing so, and it was the engine which returned from Wolcott on the telegraphic summons of the agent at North Rose and brought the fire company from the former place, some of whom testified to sparks emitted by it on the return. Moreover, if anything was to be claimed for the plaintiffs’ case, on the ground of the inferiority of the diamond stack to the extension front, No. 14 was the only engine against which that claim could be made. Indeed, so manifest was it that the plaintiffs’ case related solely to engine,No. 14, that the defendant, very properly, gave no evidence at all in respect to the actual condition or management of either of the other engines mentioned.

Such being the state of the case, the counsel for the defendant requested the court to charge the jury “ that if they find that this malt house was destroyed by fire from a locomotive, but they are not able to decide that the fire was caused by engine No. 14, then and in that case the. plaintiffs cannot recover.” This the court declined to do, but on the contrary instructed the jury as follows “ If you find that this malt house was burned by reason of sparks escaping from the defendant’s engines, or any one of them, providing, as I said before, it was doné negligently, then the plaintiffs are entitled to recover.” And the court was further requested to charge that there is no evidence imputing negligence to any particular engine except No. 14.” This request was also refused, and the defendant duly excepted to the several rulings.

These exceptions, we think, were well taken and were ground upon which the motion for a new trial should have been granted. The several refusals to charge and the instruction actually given, whether taken together or separately, plainly imply, and, in effect, instruct the jury, that there was evidence in the case upon which the defendant might be charged with actionable negligence in connection with either or both of the engines above mentioned, other than engine No. 14. A fair test of the correctness of such an instruction may be applied by supposing that engine No. 14 and all the evidence relating exclusively to it were eliminated from the case; it will not be contended that any case against the defendant would remain.

The instruction may well have been to the prejudice of the defendant. It opened tbe door for conjecture on tbe part of tbe jury, and enabled any juror wlio was not satisfied to discredit tbe direct evidence, given by tbe defendant’s witnesses, as to tbe .actual condition of engine No. 14, to argue “ but no sucli evidence is given in regard to either of tbe other two engines, and if tbe fire was not communicated by No. 14, it must have been by one of%hem, .and tbe defendant is still responsible.” Tbe fault of such reasoning is that if tbe fire was communicated by either of tbe other engines, it bajipened — so far as tbe evidence shows — without negligence of tbe defendant; and tlie fault of tbe instruction complained of was that it assumed, contrary to tbe fact, that there was evidence of negligence in connection with tbe engines other than No. 14.

For tbe error thus pointed out we are of tbe opinion that tbe order denying tbe defendant’s motion for a new trial should be reversed.

Lewis, Haight and Beadley, JJ., concurred.

• Order denying motion for new trial reversed and new trial granted, costs to abide tbe event.


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    Willis C. Hubbard, Respondent, v. William C. Rodger and Eugene C. Johnson, Appellants, Impleaded with John J. McLane and Joseph Rockwell.

      •Canal contractor’s bond for laborers’ wages — shoi’t Statute of Limitations — right of an assignee to enforce it.

    In tlie short Statute of Limitations in favor of sureties upon a canal contractor’s b’ond for tlie payment of laborers’ wages, created by tbe provision of section 3 of chapter 378 of the Laws of 1850, that “no recourse shall be had to the sureties upon such bond, unless proceedings shall be commenced within thirty days after the completion of the labor, the payment of which is secured by such bond,.” the words “completion of the labor” do not refer to the completion of the contract, but the meaning is that a laborer must institute his action against
    . the sureties on the bond within thirty days from the completion of his individual labor for which he seeks compensation.

      •Qurnre, whether said chapter 378 of the Laws of 1850 creates any liability on the part of the sureties upon a canal contractor’s bond executed in compliance therewith, in favor of an assignee of laborers’ claims for wages.

      Appeal by tbe defendants, William 0. Rodger and Eugene C. Johnson, from a judgment by tbe Supreme Court in favor of tbe plaintiff, entered in the office of tbe clerk of Erie county on tbe 8th day of July, 1892, upon tbe report of a referee.
    The action was brought by tbe plaintiff as tbe assignee of tbe claims of a number of laborers, employed by tbe defendants McLean and Rockwell in tbe work of lengthening a lock on tbe Erie canal under a contract with the State, to recover the amount alleged to be owing such laborers by tbe contractors, upon a bond executed by tbe contractors as principals and by tbe defendants appellants as sureties.

      Zouis Marshall, for tbe appellants.

      G. F. Whitcher, for tbe respondent.
   Dwight, P. J.:

The appellants are tbe sureties in a bond given by tbe contractors for certain work on tbe Erie canal, pursuant to tbe requirements of chapter 218 of tbe Laws of 1850 (Birdseye, p. 390, § 18). The plaintiff is tbe assignee of tbe claims of a number of laborers employed by the contractors on the work. All tbe labor performed by tbe several assignors, and for which tbe contractors were indebted to them, was completed more than three months before tbe commencement of this action, while, as tbe referee finds, tbe entire work under tbe contract was not completed until less than thirty days before that date.

This statement of facts presents two questions of law which are considered by tbe referee in bis opinion and upon both of which bis conclusions are in accordance with the plaintiff’s contention.. The questions are: First. Whether section 1 of the statute above cited, which prescribes the conditions of the bond, creates any liability, on the part of the sureties-in such bond, in favor of an assignee of the claim of laborers; and, second, whether this action, as against the sureties, was barred by the limitation of time prescribed by section 3 of the same statute.

The full text of the statute is as follows:

“ § 1. It shall be the duty of any canal commissioner or other officer having charge of the letting of any contract for work on any of the canals or other public works of this State, to require and take, in addition to the bond now required by law for the security of the State, a bond with good and sufficient sureties, not less than two, conditioned that such contractor shall well and truly pay in full, at least once in each month, all laborers employed by him on the work specified in such contract, which bond shall be duly acknowledged before an officer authorized to take acknowledgments of deeds, and filed by the officer taking the same in the office of the clerk of the county wherein such contract or work is to be performed. And when such work shall be partly in two or more counties, there shall be such a bond filed in the clerk’s office of each county.

“ § 2. Suits may be commenced on said bond before a justice of the peace, when the amount claimed shall not exceed the jurisdiction of a justice of the peace, and a transcript of such bond, duly authenticated by the county clerk, may be used in evidence in such suit.

“ § 3. The bringing of a suit by one or more laborers upon such bond shall not operate as a bar to the bringing of other suits thereon by any of the parties for whose benefit such bond was taken and to whom such contractor shall be indebted for labor. But no recourse can be had to the sureties upon such bond, unless proceedings shall be commenced within thirty days after the completion of the labor, the payment of which is secured by such bond. But nothing in this act contained shall prevent or bar a suit against such contractor within the time limited by law.”

. Upon the plain reading of this statute we think the conclusion of the referee on the second of the questions above stated was erroneous. In order to avoid the application to this case of the short Statute of Limitations, in favor of sureties, contained in the 3d section, he construes the words thirty days after the completion of the labor, the payment of which is secured by such bond,” to intend thirty days after the completion of the entire labor expended upon the work under the contract — in other words, the labor of all the laborers employed on the work. It is true that the payment of all this labor is intended to be secured by the bond, but it is equally true that the bond is, by its express terms, as well as its general tenor, intended as security to each man individually, and that as to each man who may have occasion to resort to it, “ the labor, the pay-meut of which is secured by such bond,” is his own labor, and that alone. The single and commendable purpose of the statute is to secure to every laborer on the public works prompt and regular payment of his wages, “ at least once in each month.” This purpose would be entirely defeated if each man’s remedy against the sureties in the bond were postponed until every man’s labor on the entire work was completed, which might not be in many months, or even years. The whole tenor of the, statute is opposed to such a construction'. It is careful to afford every facility for the prompt and easy enforcement of the remedy provided. It provides for proof at hand in every case, and a ready and inexpensive tribunal, and that each man shall have his action, unaffected by whatever action has been taken by others. All its provisions indicate the purpose to give an individual security and an individual remedy. It requires security for the payment of every man’s wages at least once in each month. How is this security afforded by a bond which can be enforced only after the completion of the entire work, be the time longer or shorter ?

Nor do we find anything in the particular terms employed in the statute which necessitates a construction opposed to the general tenor .of its provisions. The criticism which is made upon the use of the word completion,” instead of “ performance ” of the labor, etc., seems to us more nice than forcible. Indeed, there is one view in which the use of the word completion is necessary to the construction which we adopt. Each man’s labor is performed ” daily, and payment for each day’s labor is secured by the bond; but it was evidently not intended that the bond should be enforcible. for each day’s wages. Whereas each man’s labor, for the payment of which security is given, is completed ” either at the expiration of each month, or sooner, when his connection with the work ceases.

And so, we suppose, it to be the purpose and effect of this statute, and of the bond given in compliance therewith, that if a man’s wages are not paid at the end of every month during which he labors, or at the expiration of Iris whole time, he has, then, his remedy -against the sureties by his action on the bond ; otherwise, the bond does not afford security for the payment of his wages at least once in each month,”, as by its terms it purports to do.

If such is the true construction of the statute, and of the bond given in conformity therewith, then the thirty days’ limitation of time within which proceedings were required to he commenced for the enforcement of this bond, as against the sureties therein, had fully run against each of the plaintiffs assignors before the commencement of this action, and the action was barred thereby.

This conclusion, which seems to us unavoidable upon the conceded facts of the case, so completely defeats the plaintiff’s action that we deem it unnecessary - to consider the other question proposed, the answer to which is, perhaps, not so clear.

The judgment appealed from should be reversed and the complaint dismissed.

Lewis, Haight and Beadlev, JJ., concurred.

Judgment appealed from reversed and the complaint dismissed.