text:
    JOHN HILLS and WILLIAM HILLS, Plaintiffs, v. FRANK L. SOMMER and Others, Defendants.

      Accord and satisfaction — established by receiving a less amount than that claimed.

    In an action brought to recover for a balance due on a shipment of certain lemons, sold at an agreed price, and delivered by the plaintiffs, wholesale fruit dealers in the city of New York, to the defendants, fruit dealers in St. Joseph, Mo., it appeared that on the arrival of the goods at St. Joseph the defendants notified the plaintiffs that a part of the lemons were defective in quality and condition and that they would not receive the goods unless a rebate in price was made as to such part.
    The plaintiffs refused to allowed such rebate and thereafter drew their draft on the defendants for the full invoice price, which was returned unpaid, with an indorsement: “ Amount incorrect, will remit.” Afterwards the plaintiffs wrote to the defendants stating the fact of the return of the draft with the indorsement and asking the defendants to advise them what they intended to do about the matter or to send the money. The defendants answered:
    “We inclose herewith New York draft, No. 26539, on the American Exchange Nat’l Bank, New York, for $1,639.25 in payment of invoice as above. July twenty-eighth, interest on amount past due, $3,25.”
    The plaintiffs received and collected the draft, which represented the agreed price less the rebate claimed by the defendant, and brought this action to recover the balance of the agreed purchase-price.

      Reid, that a verdict, was properly directed for the defendants.
    That the plaintiffs, by their failure to reject the draft, acceded to the defendants’ terms.
    Motion for a new trial after a verdict in favor of tbe defendants, directed at tbe New York Circuit on January 14, 1889, upon exceptions ordered to be beard in tbe first instance at tbe General Term.
    Tbe judgment on tbe said verdict to be in tbe meantime suspended.

      Lewis Cass Ledyard, for tbe plaintiffs.

      Palmer & Boothby, for tbe defendants.
   Cullen, J.:

Tbis action is brought for a balance due on goods sold and delivered. Tbe defendants, fruit dealers in St. Joseph, Mo., ordered of tbe plaintiffs, wholesale dealers in New York city, shipment of certain boxes of lemons, at an agreed price. On tbe arrival of tbe goods in St. Joseph tbe defendant notified tbe plaintiffs that a part of the lemons were defective in quality and condition, and that they would not receive the goods unless a rebate in price was made as to such part. This rebate the plaintiffs refused to allow. Subsequently the plaintiffs drew their draft upon the defendants for the full invoice price. This draft was returned unpaid, with the indorsement “ Amount, incorrect. Will remit.” Afterwards the plaintiffs wrote to the defendants stating the fact of the return of the draft with the indorsement, and asking the defendants to advise them what they intended to do about the matter or to send the money, To this the defendants answered:

“We enclose herewith New York draft, No. 26539, on American Exchange Nat’l Bank, New York, for $1,639.25, in payment of invoice as below.
“ duly 28. Interest on amount past due, $3.25.”

The draft enclosed was for the amount at which the defendants had expressed their willingness to receive the goods. The plaintiffs received and collected the draft, and then brought this action to recover the balance. Upon the trial a verdict was directed for the defendants, and the exception to such direction was directed to be heard at the General Term.

Upon the facts stated we think the verdict was properly directed. It is unnecessary to determine whether the defendants could accept part of the shipment and reject the remainder, or whether there was a warranty that would survive such acceptance. Whether right or wrong in their view of the law, the defendants disputed their liability for the amount claimed. There was no request to submit to the jury the question of the bonafides of this dispute. That fact was assumed, and a claim may be honestly disputed upon a matter of law as well as a matter of fact. (Woodruff v. Woodruff, 52 N. Y., 53.) Therefore, payment of a less amount than that claimed would constitute a valid accord and satisfaction. Upon the correspondence between the parties we think it is unquestionable that the defendants sent a draft to the plaintiffs in compromise and satisfaction of the claim. The plaintiffs had been notified of the defendants’ complaint as to the condition of the goods, and their refusal to receive them except at a specified reduction in price. The draft drawn by the plaintiffs had been returned by the defendants as incorrect in amount. In return to the further letter of the plaintiffs, the defendants sent the draft for the exact amount they had offered to allow; the letter enclosing the draft, stating that it was sent in payment of the invoice of July twenty-eighth. There can be no misconstruction ct this correspondence; it is susceptible of but one interpretation — that the defendants tendered the draft in settlement of the claim. The court, therefore, properly refused to submit the question to the jury. The plaintiffs were bound either to reject the draft or, by accepting it, to accede to the defendants’ terms. (Looby v. The Village of West Troy, 24 Hun, 18; Grinnan v. Platt, 31 Barb., 328.)

The exception should be overruled and judgment ordered for defendants on the verdict.

Van Brunt, P. J., concurred.

Judgment ordered for the defendants on the verdict.


source: Caselaw Access Project

author: Cullen, J.:

license: Public Domain

text:
    OLIVER T. HOPPER, Appellant, v. MARY C. HOPPER, as Executrix, etc., of the Last Will and Testament of INSLEE A. HOPPER, Deceased, Respondent.

      Ancillary letters testamenta/ry — the aneilla/ry executor is, and is liable to be sued in-the same manner as, a domestic executor although Ulereare no assets in this State.

    In an action brought by the plaintiff, a resident of the State of Georgia, upon a. claim originally existing against the defendant’s testator, who was, at the time of his death, a resident of the State of New Jersey, it appeared that the testator’s, will was proved in that State and letters testamentary thereon were issued to the defendant, and that subsequently the defendant received ancillary letters, testamentary from the surrogate of the county of New York.
    On the trial the plaintiff established his claim against the deceased, but showed no assets whatever in this State, and on these facts the court held that it had no jurisdiction to entertain the action and ordered that judgment be entered for the defendant.
    Upon an appeal from this judgment:

      Held, that it should be reversed.
    That an executor, who receives ancillary letters in this State, is a domestic executor and liable to be sued here in the same manner as other executors.

      Appeal from a judgment, rendered at a Special Term held in the county of New York, dismissing the plaintiffs complaint, which was. entered in the office of the clerk of the city and county of New York on January 10, 1889.

      Horace Secor, for the appellant.

      Robert T. B. Easton, for the respondent.
   Cullen, J.:

This action is upon a claim against the defendant’s testator. The plaintiff is a resident of the State of Georgia. The defendant’s, testator was, at the time of his decease, a resident of the State of New Jersey. His will was proved in that State, and letters testamentary thereon issued to the defendant. The defendant subsequently received ancillary letters testamentary from the surrogate of the county of New York. On the trial before the court without a jury, the plaintiff established his claim against the deceased, but. showed no assets within this State. On these facts the court held that it had no jurisdiction of the action, and ordered judgment for the defendant. From that judgment- this appeal is taken.

“We are of opinion that this disposition was erroneous. The learned judge in his opinion rests his decision on the doctrine that an action at law cannot he maintained against a foreign executor, and that an equitable action against such executor will only he as a resident creditor for an accounting as to assets collected within this State.

The general rule stated hy the learned judge, as to actions at law, is doubtless correct, though it may he that he has confined the scope of equitable relief within too narrow limits. But the question is, was the defendant, after she had taken out ancillary letters in this State, a foreign executor ? The general rule seems to he that the immunity from suit and the right to sue are co-extensive; and the reason of the rule that foreign executors can neither sue nor be sued is that the grant of letters testamentary has no force beyond the country in which the grant was made. Therefore, the grant in New Jersey created in this State no privity between the deceased and the defendant, but now that privity is established by the issue of such letters here. If there had been no .ancillary letters issued here to the defendant, hut assets had been within this State, dny one interested in the estate could have enforced an administration thereof here. Such an administration would have represented the deceased to the same extent as if the deceased had been a resident here (save as to the liability of the executor to account for foreign assets), and this action could have been maintained against the administrator. The grant of the defendant’s letters precludes the appointment of another administrator, and we cannot see why her liabilities should not be co-extensivo with Ms. Her letters are termed ancillary, but we do not understand that ancillary letters are less in their effect than other letters. Apart from the statute, all administrations of estates in different countries are independent, so far as a matter of strict right or jurisdiction; but as a matter of comity all administrations in countries other than that of the domicile are ancillary to the principal administration. (Williams on Executors, 363; Story on Conflict of Laws, §§ 513, 518.) How far that comity should respect the principal administration is a matter of judicial discretion. In most States the rule has been stated that so much of the estate as was necessary to satisfy debts to residents would be so applied, and the surplus remitted to the domicile of the deceased. But I can find no case where a non-resident sought to enforce his claims against the estate in an ancillary administration, .and was denied relief on account of his non-residence.

In Goodall v. Marshall (11 N. H., 88), exactly the contrary doctrine was held. So, also, while estates will be distributed according to the law of the domicile, it is not always the rule to remit the assets to the domicile for distribution, but the estate may be distributed where the assets actually are. In the Matter of Hughes (95 N. Y., 55), the deceased domiciled in Pennsylvania, died in that State. The assets of the estate were situate there, but were brought to this State by one of the next of kin, who here obtained letters of administration. Letters were subsequently obtained in Pennsylvania by another person. The Court of Appeals reversed an order remitting the assets to the latter State, as it appeared that there were no debts in Pennsylvania, and that the next of kin resided in this State. It was held that the distribution of the assets in the ancillary admimstration, or their remission to the principal .administration, was not a question of jurisdiction, but of judicial discretion.

If the assets were to be kept here, it is difficult to see how the foreign creditor is to be denied satisfaction in the courts of this state.. The principles thus referred to show that an ancillary administration is as efficacious as any other administration, so far as the question of legal title is concerned, the fact that the administration is ancillary only going to the discretion of the court in the disposition of the assets. "Without the provisions of the Code, which are re-enactments of previous statutes, the defendant would have been compelled to prove the will in this State to take out letters here. But these provisions of statute enable her to take out letters upon simply showing the probate of the will in the place of the domicile, provided such place is a State or territory of this country. If the deceased had died a resident of Canada or England, the defendant would have had to prove the will in this State to obtain letters. Had the will been so proved and letters then issued, the executor, as far as acts, at law are concerned, would not have differed from other executors. The only effect of the statutory provision was to relieve the defendant from the necessity of proving the will here ; but she is the same character of executor as if the will had been so proved. Her authority is not limited to assets within this State. She could maintain her action against a non-resident debtor to the estate, if she were, able to serve him with process within the State, and the cause of action was transitory. (Fox v. Carr, 16 Hun, 434.) Her liability to be sued should be as extensive.

It is not necessary to determine whether the .plaintiff, if successful in his suit, can reach assets in this State, or must go to the State of the original probate. Hnder our system a judgment against an executor practically only establishes a claim. The surrogate in this State has no power to pass on the validity of the claim, but the existence of the claim must be determined in a suit at law. It would seem clear, therefore, that, at least as to resident creditors, an ordinary action at law might be maintained against this defendant. Even as to such resident creditors it appears that they may be remitted to the place of the domicile; while, on the other hand, it appears that distribution may be decreed within this State to the legatees or next of kin. (Code, § 2701.) A judgment, however, would give the plaintiff two benefits: First. Under the authority of Mill v. Tucker ( 13 How. [U. S.], 488) the judgment would be presumptive,. if not conclusive, evidence of his claim in other jurisdictions. Second. Under the authority of the same case it would relieve him from the bar of the statute of limitations. These questions, however, will arise on the distribution of the estate. All we determine is that an executor who receives ancillary letters in this State is a domestic executor and liable to be sued here as other executors. , The judgment appealed from should be reversed and a new trial ■ordered, costs to abide the event.

Van Brunt, P. J., concurred.

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


author: Van Brunt, P. J.: MaooMbbe, J.

text:
    HENRY MASON, LOUIS Q. JONES and Others, Appellants, v. GEORGE G. WILLIAMS and JACOB K. LOCKMAN, Executors of the Last Will and Testament of LOUIS C. HAMERSLEY, Deceased, LILY W. HAMERSLEY, Individually and as Executrix, etc., and Others, Respondents.

      Probate of will — undue influence — presumption as to its intelligent execution— effect of the declm'ations of the testatoi' after the date of the will.

    Upon an appeal from a decree of the Surrogate’s Court admitting to probate the last will of Louis C. Hamersley, deeeased, it appeared that the will was dated and executed on February 10, 1883, and that the testator died on May 3, 1883, leaving a wife, Lily W. Hamersley, but no children, and no father or mother. His father died in January preceding his own death. The only next of kin of the testator on his father’s side was his uncle, John W. Hamersley. Upon his mother’s side he had a number of next of kin, brothers and sisters of his mother, and their descendants. He was married in 1879, and was before that time and afterwards a gentleman of large fortune, although the bulk of his estate at the time of his death had been derived from his father.
    By the will the testator substantially gave the whole income of his property to his wife for life, and after her death he willed all of it to his own issue, if any; in default of such issue to the male issue of his cousin J. Hooker Hamersley, and in default of such issue to such charitable societies in New York as his wife, by her will or other instrument in writing, might appoint.
    The probate of the will was contested upon the ground that it was radically different from a holographic will written by the testator six weeks earlier, but which he was prevented from executing ; that he was a man of weak mind and that the alleged will was not duly executed; that his mind did not accompany the act of execution; that he had no conscious knowledge of the alleged will, and that the will was obtained by undue influence practiced upon him by his wife and others acting in her interest.
    The court at General Term being of opinion that this claim was wholly unsupported by the evidence:

      Meld, that undue influence must be proved precisely as any other fact; that a wife or parent had a right to exert influence, had a right to advise, had a right to urge and had a right to suggest; and that unless the argument or suggestion is of so potent a character that it overcomes the will of the testator, it in no manner impaired the validity of the act of the testator, even if done in accordance with the argument or suggestion.
    That there was no presumption to be indulged in, against an intelligent execution of a will, where the testator has had ample time and opportunity to acquaint himself with the contents of the instrument executed.
    Testimony was offered by the contestants to show that the testator had made declarations after the date of the will, to the effect that his wife had made efforts to influence and obtain from him a will in her fayor. Questions were asked of a witness as to whether he had had any conversation with the testator about another will; about an effort being made to induce him to make a certain will by any person, and whether the testator ever said anything to him about efforts being made by his wife to obtain from him a will, and as to whether he said anything to him upon the subject of whether or not his wife had asked him to make a will in her favor? The surrogate sustained objections to the questions on the ground that they did not call for a declaration of testamentary purpose, and that undue influence could not he proved by the decedent himself.

      Meld, that, as there was no evidence that the declarations were made so soon after the execution of the will as to afford a reasonable inference that he was not then competent to make his will, the evidence was properly rejected. (Macomber, J., dissenting.)

      In the Matter of Clark (40 Hun, 237) distinguished.
    Appeal from a decree of the Surrogate’s Court of the county of New York admitting to probate the last will and testament of Louis C. Hamersley, deceased, which was entered in the office of the clerk of said Surrogate’s Court on the 3d day of June, 1886.
    This case was argued at the November Term, 1887; reargument ordered at the June Term, 1888, and reargued at the November Term, 1888.

      Elihu Root and Franklin Bartlett, for the appellant.

      James C. Garter and George De Witt, Jr., for the respondents.

      Robert Sewell, for the respondent, Lily W. Hamersley.
   Van Brunt, P. J.:

The will in question was dated and executed on the 10th of February, 1883; the testator died on the 3d of May, 1883, leaving a wife, Lily W. Hamersley, but no children, and no father or mother. His father died in the January preceding his own death. The only next of kin of the testator on his father’s side was his uncle, John W. Hamersley, a brother of the testator’s father. Upon his mother’s side the testator had a number of next of kin, brothers and sisters of his mother and their descendants. The testator was the only child of Andrew Gordon Hamersley. tie was married in 1819, and was before that time and afterwards a gentleman of large fortune, although the bulk of his estate, at the time of his death, had been recently derived from his father. By the will the testator substantially gave the whole income of his property to his wife for life, and after her death he willed all of it to his own issue, if any, and in default of such issue to the male issue of his cousin, J. Hooker Hamersley; and in default of such issue to such charitable societies of New York as his wife, by her will or other instrument in writing, might designate and appoint.

The probate of this will was contested upon the grounds that it was radically different from a holographic will written by the testator six weeks earlier, but which he was prevented from executing; that Louis O. Hamersley was a man of weak mind, and that the alleged will was not duly executed; that the mind of Louis O. Hammersley did not accompany the act of execution, and that he had no conscious knowledge of the alleged will; and that the will was obtained by undue influence practiced upon him by his wife and others acting in her interest.

An examination of the record shows that the most material part of the testimony ujjou which the ease of the contestants depends was taken in absolute defiance of the prohibition of sections 834 and 835 of the Code. Lawyers and physicians of the testator were examined and testified from knowledge procured at professional visits made by them upon the testator and by the testator to them. This evidence seems to have been admitted upon the theory that the prohibition of sections 834 and 835 did not apply to the testamentary cases. It is difficult to see, upon a reading of the sections in question, how any such idea came to be entertained, because its language is positive and unequivocal, and makes no exceptions as to the class of cases to which they shall apply; and they must necessarily apply to testamentary cases as well as to any others, unless the plain provisions of the sections are to be repealed by judicial legislation. They require no construction, but are plain and explicit, and they condemn the admission of this testimony, and such evidence cannot be considered by this court in the determination of this appeal. The evidence shows, by a preponderance of testimony, that the testator was not of that weak mind which is claimed by the contestants. It would appear from such evidence that he was a man of certainly ordinary capacity and a rather stubborn will. Neither is the claim that the alleged will was not duly executed and that the mind of the testator did not accompany the act of execution, and that he had no conscious knowledge of the will, sustained by evidence. The due execution of the will was proved, if we leave out of the case the testimony of Lockman as to what transpired between the testator and himself. We have, then, the case of a testator having in his possession a will drawn by his solicitor, signed by him in the presence of the witnesses ,and stating that it was satisfactory to him as his will, and acknowledging and declaring the instrument, in response to a question put to him, to be his last will and testament, and requesting the witnesses to sign it. This evidence shows a perfect execution of the will, and there is no presumption whatever to be drawn from the circumstances, that the testator was unacquainted with the contents of the instrument which he signed after having declared himself satisfied with it. If we take into consideration the testimony of Lockman, which probably we have no right to do, then it is clear that the testator gave the instructions to draw the will in the manner in which it was drawn, and there is every reason to believe that before execution he read it, and acquainted himself with its contents. There is no presumption to be indulged in against an intelligent execution where the testator has ample time and ample opportunity to acquaint himself with the contents of the instrument executed.

The objection that the will is radically different from the holographic will written by the testator six weeks earlier, which he was prevented from executing, and that, therefore, the alleged will was obtained by undue influence practised upon tbe testator by his wife, is wholly unsupported by the evidence. The position of the contestants seems to be that because the wife had an opportunity to exert undue influence and had a motive to exercise such influence, and because provision is made for her beyond what the law provides for her, she has exercised such undue influence. It seems to us that no such presumption can arise, and that undue influence must be proved precisely as any other fact, and cannot be presumed. Upon the contrary, where there are two inferences which may equally well be drawn from the testimony upon the question of undue influence, we are bound to accept that which is consistent with honesty and fair dealing and reject that which estabhshes a fraud. A wife or a parent has a right to exert influence, has a right to advise, has a right to urge and has a right to suggest, and unless the argument or suggestion is of so potent a character that it overcomes the will of the testator, it in no manner impairs the validity of the act, even if done in accordance with the advice or suggestion. Influence is not necessarily undue, and it must be undue influence which is established by the evidence before a will can be impeached upon that ground.

Where is the evidence 'of the exercise of any influence whatever upon the wife of the testator in respect to the execution of this will ? It is alleged that the evidence of this influence is to be found in the fact that the will as executed is radically different from the holographic will written by the testator six weeks earlier. But let us consider a moment the circumstances under which that will was prepared. This testator’s father was then alive. It is apparent that in the preparation of that will the father exerted a strong influence upon the son, because we find a draft for the son prepared in the father’s handwriting. Is it not rather to be presumed that this unexecuted holographic will was prepared because of the undue influence of the father upon the son, which influence, however, the son so far resisted that he did not execute the will, than to be presumed that the execution of the will in question was due to the undue influence of his wife \ In view of the relations existing between the father and the son, and in view of these documents having been prepared by the father in the first instance, there is just as much evidence, and probably more, tending to establish the inference that undue influence was exercised by the father to induce the son to make the will about which he was negotiating with Mr. Strong rather than that the wife was guilty of undue influence in causing the will actually executed to be prepared. We can find no presumption in favor of undue influence to bring about the execution of the will which cannot be applied with tenfold force to the preparation of the proposed unexecuted will. It is not the province of the court to set aside wills merely because they fancy there may have been some undue influence exercised. In order that the decree of the surrogate may be overthrown in a case of this description there must be grave doubts as to whether the will, in question was the will of the testator, not that there may be some doubt upon the question; and those doubts cannot rest upon fancy, but must be based upon fact. We think, therefore, that there is nothing upon which the claim but that this will was the will of the testator, duly executed without duress or restraint, can rest.

Some exceptions have been taken to the admission of evidence, and to one of these only it is necessary to call attention, as Mr. Justice Macomber seems to think that error was thereby committed. He says: “ Testimony was sought to be given by the appellants that the testator had made declarations after the date of the will to the effect that his wife had made efforts to influence and obtain from him a will in her fayor. This effort appears in different parts of the case, but more conspicuously when the witness Cortlandt De Peyster Field was on the stand.

The following questions were asked of this witness:

“ Did you ever have any conversation with Louis Hamers.ey about another will, about an effort being made to induce him to make a certain will by any person?” (Objected to. Objection sustained.)
“ Did Louis Hamersley ever say anything to you about efforts being made by his wife to obtain from him a will? ” (Objected to as hearsay.)
The Surrogate — It is not a declaration of testamentary purpose, and I do not think you can prove undue influence by the decedent himself.
“Did he say anything to you upon the subject of whether or not his -wife had asked him to make a will in her favor ? ” (Objected to. Objection sustained. Exception.)

This ruling, the learned judge states, does not seem to be in accord with the decisions of this court. In the Matter of Clark (40 Hun, 237) the court say: The proponents also took exception to the admissions of declarations made by the the testator in the November following the time of the making of the will. Those declarations had relation to the terms of the will he had made and the one he first undertook to make, and in respect to this added his wife objected to it and he had to make another. The evidence was clearly incompetent to prove the contents of the will in question, or those of that he had first purposed to make, or to show that the one made was caused or produced by duress. The validity of the will cannot be affected or impeached by his declarations. They were no part of the res gestae and, therefore, were not any or competent evidence of the facts stated by them. But the question on the trial was whether the will was the result of undue influence which involved the consideration of the mental condition of the testator at the time he made it. Although he was then of sound disposing mind and memory, his susceptibility to the influence and control of others depended somewhat upon theMgor and character of his mind and will power. He was in feeble health at and from the time the will was made until his death; notwithstanding he improved in that respect and was out some in the meantime, his declarations were only competent as bearing upon the state and condition at the time of the testamentary act. The 'declarations were made about two months afterwards, and were not separated from the act by such length of time nor were there such intermediate changes of condition as to enable the court to hold, as matter of law, that it was not competent to prove them with a view to an inquiry as to his mental vigor and condition at the time the will was executed, as bearing upon the question of undue influence. And we are also referred to a decision in 99 Massachusetts (Shailer v. Bumstead, p. 112) to the same effect.

But applying this rule to the questions asked, it appears that they by no means complied with the requirements therein contained, because there is no time fixed as to when these declarations were made. There is no evidence that they were made so soon after the execution of the will as to afford a reasonable inference that such was then the condition of his mind. But it rather appears that they were made before tbe execution of bis will (whether during the lifetime of his father we know not), and, therefore, it does not appear that there were not such intermediate changes of condition after the death of his father as would naturally destroy them as an argument for the purpose of upsetting the testamentary disposition of his property made subsequent to that event. But, upon a further examination of the case, it appears that, as far as these questions were relevant, the witness wás not in possession of facts which tended in any way to show that any undue influence had been exercised by his wife, or any improper solicitations had been made upon her part in relation to the making of the will. The witness was asked immediately after the last ruling, Have you told us all you know about the testamentary declarations ? ” and he answered, I think I have told all I remember at the moment.” “Q. Did he ever make any declaration to you as to his intention with reference to his wife ? A. I dare say he has, but I don’t remember anything specifically. Q..You cannot state anything definite at the moment? A. I don’t remember anything specific. Q. Can you state the substance of anything ? A. I don’t think I can. Q. Do you mean to say you don’t remember ? A. I don’t remember; I have an indistinct recollection of a great many things which I cannot put into a sufficient form to answer the question.” Here it appears that the witness had told all that he knew in regard to the testamentary declarations of the testator. And the mere fact that the witness was willing to swear to the circumstance that Louis C. Hamersley had told him that his wife had asked him to make a will in her favor cannot in any way impair the validity of the act which had been done and by which his wife might be said to profit.

Hnder the language of section 2545 of the Code of Civil Procedure, the General Term should not order a new trial unless it appears that the exceptant was necessarily prejudiced by an erroneous ruling. There is no evidence of any prejudice. Upon the contrary, the weight of the evidence is that the testimony, even if admitted, would have been of no particular consequence upon this issue of undue influence. But it is urged by the learned justice that because of the testimony of Strong, showing the earlier testamentary disposition in the negotiations or interviews with him in regard to the unexecuted will, this evidence becomes important. As already stated, tbe court bad no right to consider the evidence of Strong. It was given in violation of the rules of section 835 of the Code. For this reason, therefore, it affords no support whatever to the claim that the evidence of Cortlandt De Peyster Field may have been important. But conceding that Strong’s evidence is to be considered, how does that evidence establish anything else than that the father was endeavoring to get the son to make a will ? Or even if that be not so, then the change in the testator’s condition, by reason of the death of the father, was a sufficient reason for the change of testamentary intention.

Without proceeding further in the discussion of the evidence in this case, which is too voluminous to be gone into at length, it is sufficient, to sum up the whole matter, to say that there is no evidence whatever of undue influence exercised upon the part of Mrs. Hamersley to obtain the making of the will in question by the testator; and the necessary conclusion is that the will was duly executed, the testator having full knowledge of its contents, he having had ample opportunity to acquaint himself therewith, and apparently having done so.

The decree of the surrogate should be affirmed with costs.

Beady, J., concurred.

MaooMbbe, J.

(dissenting):

The will was dated and executed on the 10th day of February, 1883. The testator died on the third day of May of that year, aged forty-three years, leaving a wife, Lily W. Hamersley, now the Duchess of Marlborough, but no children or other descendants, and no father or mother. His father died but a few weeks before his own death. The only next of kin of the testator on his father’s side was his uncle, John W. Hamersley, a brother of the testator’s father. Hpon his mother’s side the testator had a number of next of kin, brothers and sisters of his mother or their descendants; some, but not all, of these contest the probate of the will. The testator was the only child of Andrew Gordon Hamersley. He was married in November, 18J9, and was, before that time and after-wards, a gentleman of leisure and of large fortune, though the bulk of his estate at the time of his death had been but recently derived from his father. By the will the testator substantially gave the whole income of his property to his wife for life. After her death he willed all of it to his own issue, if any, and in default of such issue, to the male issue of his cousin, J. Hooker Hamersley, a bachelor, and in default of such issue, to such charitable societies of New York as his wife, by her will or other instrument in writing, might designate and appoint.

Testimony was sought to be given by the appellants, that the testator had made declarations after the date of the will, to the effect that his wife had made efforts to influence and obtain from him a will in her favor. This effort appears in different parts of the case, but more conspicuously when the witness Cortlandt De Peyster Field was on the stand.

The following questions were asked of this witness: Q. Did you ever have any conversation with Louis Hamersley about another will; about an effort being made to induce him to make a certain will by any person ? (Objected to. Objection sustained.) Q. Did Louis Hamersley ever say anything to you about efforts being made by his wife to obtain from him a will ? (Objected to as hearsay.) The SURROGATE — It is not a declaration of testamentary purpose, and I do not think you can prove undue influence by the decedent himself. (Exception.) Q. Did he say anything to you upon the subject of whether or not his wife had asked him to make a will in her favor ? (Objected to. Objection sustained. Exception.)

The ruling of the surrogate does not seem to be in accord with the decisions of this court. In the Matter of Clark (40 Hun, 237), the court say: “ The proponents also took exception to the admission of declarations made by the testator in the November following the time of the making of the will. Those declarations had' relation to the terms of the will he had made and the one he first undertook to make, and in respect to this added, ‘his wife objected to this and he had to make another. This evidence was clearly incompetent to prove the contents of the will in question, or those of that he had first purposed to make, or to show that the one made was caused or produced by duress. The validity of the will cannot be affected or impeached by his declarations. They were no part of the ves gestee, and, therefore, were not any or competent evidence of the facts stated by them.. But the question on the trial was whether the will was the result of undue influence, which involved the consideration of tbe mental condition of the testator at the time he made it. Although he was then of sound disposing mind and memory, his susceptibility to the influence and control of others depended somewhat upon the vigor and character of his mind and will power. He was in feeble health at and from the time the will was made until his death, notwithstanding he improved- in that respect and was out some in the meantime; his declarations were only competent as bearing upon the state and condition of his mind at the time of the testamentary act. The declarations were made about two months afterwards, and were not separated from the act by such length of time, nor were there such intermediate changes of condition as to enable the court to hold, as matter of law, that it was not competent to prove them with a view to an inquiry as to his mental vigor and condition at the time the will was executed, as bearing upon the question of undue influence.”

So, also, in the case of Shailer v. Bumstead (99 Mass., 112), it was held that on the trial of issues, whether the- execution of the will was procured by fraud or undue influence, and whether the will was executed by the testatrix in ignorance of its contents, evidence of the subsequent acts and declarations was admissible to prove the subsequent existence of the condition of her mind, if they occurred so soon after the execution of the will as to afford a reasonable inference that such was then the condition of her mind, though such evidence was held inadmissible to prove the actual fact of fraud or of undue influence in the matter.

The exceptions to the rulings of the surrogate would, under .these authorities, lead necessarily to a new trial to be had before a jury, if, under the language of section 2545 of the Code of Civil Procedure, “ it appears to the appellate court that the exceptant was necessarily j>rejudiced thereby; ” otherwise not.

The important question, therefore, is, were the appellants prejudiced by the rulings of the surrogate which excluded evidence of the declarations of the testator relating not to the existence of the fact of undue influence or of fraud, but rather to the condition of his mind, as a necessary element in the consideration of the question, whether the acts done by the wife and her friends were calculated to operate unduly and improperly upon the will of the testator ?

The main contention by the appellants is that the alleged will was obtained by undue influence practiced upon the testator by his wife and others acting in her interest; that, though, in a technical sense, the deceased had testamentary capacity, yet he was of such a weak mind as to be easily operated upon by an influence against his own desires.

Perhaps the most important fact, and the one which pervades the whole case, is that six weeks before the making of this will the testator endeavored to make another will, and wrote out, in his own hand, a full expression of his testamentary desires, wholly inconsistent with the terms of the will in question, and instructed counsel to draft a'will in accordance therewith.

The testimony of Charles E. Strong, the attorney to whom the testator went for such purpose, is very full and instructive, and without it a clear perception of the case cannot, in my judgment, be had. Starting, therefore, at the fact that the deceased had, as is shown, an entirely different testamentary purpose in his mind as to the disposition of his property six weeks before the making of this will, it is of vital importance to inquire why there occurred a change of purpose in the making of another will which has no resemblance whatever to the one that was prepared substantially by his own hand. The will was brought to Mr. Hamersley’s house on the evening of its execution, February 10,1883, by Jacob K. Lockman, who had it already prepared for signature. The only persons present, besides the testator, were his wife, Mr. Lockman and two of Mr. Lockman’s clerks, Bishop and Silvester.

At the same time the deceased executed his promissory note in the sum of $10,500, by which he promised to pay G. G. 'Williams, president, that sum of money, and also gave to Williams and to Lockman a power of attorney. Hamersley never spoke or wrote to Lockman afterwards in regard to the will. Not only was the testator’s legal adviser ignored in this matter, but the customary family physician had been discarded. Was this sudden and almost unaccountable change of testamentary desires brought about naturally and as a voluntary act of the deceased, or was it done by the overlaying upon him of a stronger will than his own, smothering his real intentions ? Was the exercise of such illegal, influence made possible by the fact that the .testator had become seriously weakened in body by long and painful maladies which bad materially impaired the resisting power of bis will ? These are vital questions in this case, and the tribunal passing upon them should have the benefit of all the testimony which the rules of evidence afford. On the 19th day of December, 1882, the testator was attacked with acute bronchitis at Troy, which attack lasted five days. It is shown that he never fully recovered from that ailment until after he went south, in the month of February, 1883. His father died of pneumonia the 24th day of January, 1883, at the residence occupied by the son, after an illness of ten or twelve days. At that time the testator was himself ill with pleuro-pneumonia in another room in the house, and was not able to attend his father’s funeral. The death of his father had made a deep impression upon the mind of the son. They were shown to have been unusually intimate and regardful of each other. In the month of February the testator went south, accompanied by a nurse, as well as by his wife. On his return in April, he was taken ill in Washington, D. 0., and finally took to his bed April 27, 1883, from which he never arose. It appears to have been the purpose of the testator, as late as at the time of his going to the south, to give a considerable portion of his. property to charity, and to that end he had consulted his confidential physician, Dr. Gillette. Indeed, he seems to have wholly ignored the will in question, if he ever had conscious knowledge of it, because it does not appear that he ever referred to the will after it. was carried away, by the attorney. The evidence shows the will was not read over to the deceased, but that after it was prepared he took it in his hand and looked at it for three or four minutes. Whether he thereby familiarized himself with its terms so that he-clearly understood the disposition which he was making of his vast estate is a fair subject of contention.

After giving his wife the income of the whole estate during her life, he devises and bequeaths the property to the male issue of his cousin, J. Hooker Hamersley, who was then living, without issue and unmarried, but in the event that the cousin should die without male issue surviving him or surviving the testator’s wife, then he gives, devises and bequeaths “ the whole of my said estate, real and personal, to such charitable and benevolent corporations located in the State of New York, and incorporated by virtue of the laws thereof,, and in sucli shares and proportions as my dear wife shall by her last, will and testament, or instrument in writing, for that purpose made and executed and acknowledged by her, direct, designate and appoint for that purpose; and I hereby fully authorize and empower my dear wife to make such last will and testament or instrument in writing, and the direction, designation and appointment as aforesaid.”' Unless the testator had been advised that by such provision of his-will, in the event of the failure of male issue of J. Hooker Hamersley,. his wife took absolutely all the property, with the right to dispose of it as she saw fit, of which there seems to be no proof whatever, then the counsel for the appellants may be excused for characterizing the will as containing “ juggling provisions ’’which were not clearly apprehended by the testator. A significant fact is shown, that the testator requested Mr. Strong, when he should have prepared his will, in the month of December, 1882, under the testator’s holographic instructions, to apprise him by letter, not that such will was ready for execution, but that he, the lawyer, desired to see him,, the testator, upon some real estate matters.

Such are some of the salient facts in the case, which made it of' vital importance, upon the trial, to ascertain, as far as human testimony and observation could do so, not only the testamentary intentions of the deceased, but also the condition of his mind, so that it. could be satisfactorily determined whether the violent change in his testamentary purposes was due to his own voluntary act, or whether it was the result of undue influence or advantage, which the persons-who immediately surrounded him availed themselves of. If this be correct, then it was not only technical error to exclude the testimony already adverted to, but the appellants were necessarily prejudiced thereby. But it is claimed by the learned counsel for. the respondents, that though such evidence is competent to show the state of mind of the testator, yet it is inadmissible until the fact of the exercise of undue influence or fraud has been established by other evidence. I do not understand such to be the rule. If fraud and undue influence may be shown by circumstances, as has been attempted to be done in this case, and such circumstances do not appear to be frivolous upon the subject of the exercise of undue influence, then the declarations of the testator, designed only to show the condition or state of his mind, may be admissible. But the attending facts, some of which are adverted to above, are not frivolous. On the contrary, while, as it is usual in such cases, they do not point conclusively to the exercise of undue influence or the perpetration of fraud upon the testator, a deduction of undue influence may or may not be made from them according to the weight and importance which may be given them.

It is further argued by the same counsel that there appears to have been no motive on the part of the wife to have this will executed, as she would probably get more property in case of the intestacy of her husband than she is likely to receive under the provisions of this will. What was pressing upon the parties at that time was not the question of a will or no will, but rather should it be this particular will instead of the testator’s holographic instructions to his counsel. It may be needful again to recur to the terms of this probated paper. By it the wife has a life enjoyment of the whole of the income of the estate in any event. Then, after her death, there is a bequest of the remainder over to the children of the testator if there should be any. Yet, as was clearly enough known at that time, the birth of a child to them was regarded as a physical impossibility by every person, except, possibly, the enfeebled testator. It being a common and natural provision in most cases, it was, in this particular instance, well calculated to disarm a mind .already weakened by acute physical disease. The proponent’s witnesses say that the sick man took the paper and looked at it for three or four minutes. No one knows whether he read it or not. It certainly was not read to him. Bid he try to grasp the hope that was held out to him, springing from a natural desire for lineal survivorship ? But every one, except himself, knew the suggestion to be illusory. As if, however, the parties distrusted the potency of this suggestion, still plying him with the purpose to keep the estate in the family, the will declares that, in the absence of lineal descendants of the testator, the remainder of the estate, after the life of the wife, should go to the male issue of J. Hooker Hamersley, a cousin ■and a bachelor, who at that time had no prospects of marriage. As in the provisions for the testator’s descendants there was an ■apparent physical impossibility of realization, so in the bequest of the remainder to the male children of J. Hooker Hamersley there was a moral improbability of fulfillment, yet it was doubtless sufficient to awaken in the testator the hope of keeping the property in the Hamersley family name, however delusive such hopes seemed to all others.

The final disposition of the testator’s property, however (direct and indirect family inheritance failing), was still more extraordinary and illusory. With no children of his own or male issue of his bachelor cousin succeeding, the estate was given to such charities existing in the State of New York, under corporate organization, as his wife should select. Was the perpetration of this provision of the will upon an enfeebled man, on the face of it, an imposition and a fraud ? The testator doubtless thought, if he thought at all, that this clause secured his estate to charity in the event of failure of issue of himself and of male issue of his cousin. The thought was delusive, and this ultimate bequest was evidently thrust upon him in view of the. established fact that his deliberate purpose had been,[and was, to devote, his property mainly to charitable and benevolent purposes. There is no provision requiring his wife to designate the charities. She took the wdiole of the estate, and whether any charity should be benefited-thereafter was a matter resting entirely with herself. In plain view, therefore, of this deceptive clause of the will, the contention that the wife had no motive in procuring its provisions seems untenable. With the impossibility of direct issue, with the improbability of male issue of the bachelor cousin, with the legal certainty that no charity could claim the estate, the wife by this will held all of the possessions of her husband in her hand. Whether or not this scheme was one which was thrust upon the testator without conscious appreciation by him of its effect, or was intentionally and knowingly adopted by him in place of his prior established intentions manifested by consistent acts, is a question which, under all the circumstances, ought to be settled by the verdict of a jury.

The decree of the surrogate should be reversed, with costs to the appellants to abide the event, and a trial of the case had in a court with a jury, as the statute provides.

Decree of surrogate affirmed, with costs.


author: Tan Brunt, P. J.: Daniels, J.:

text:
    ALBERT SCOTT, Respondent, v. THE CENTRAL PARK, NORTH AND EAST RIVER RAILROAD COMPANY, Appellant.

      When a common ca/rrier is not liable for an assault upon a passenger, brought about • by the insulting language of the latter.

    Jn an action brought to recover damages for an assault committed upon the plaintiff by the driver of one of the cars of the defendant, a common carrier, while the plaintiff was a passenger thereon, it appeared that the plaintiff got upon the front platform of one of the defendant’s cars, and that, upon boarding the car, he commenced an altercation with the driver, using language which was very abusive and insulting and calculated to bring about a personal encounter, which result followed to the injury of the plaintiff.
    Upon the trial the judge was asked to charge the jury, among other things, that if they believed that the plaintiff commenced the altercation, and in the course of it addressed indecent and insulting language to the driver, and language such as was calculated or likely to produce the assault, that the verdict must be for the defendant, which the court refused to charge and the defendant excepted.

      Held, that this was error.
    That while it might be true that the use of the abusive language to the driver did not justify the assault, so far as the driver was concerned, in the eyes of the criminal law, there was no reason for holding that where a passenger, by his own improper and insulting behavior, while a passenger on the road of the railway company, brought upon himself an assault, that the carrier should be held responsible.
    That it was clear that the act of the driver was not in the course of his employment, and that defendant could only be held under the rule that, as the passenger must submit himself to' the custody of the. employees of the carrier, the carrier must be responsible even for the willful acts of the employees which result in a trespass against the passenger; but that such rule could have no application to a case where the trespass was brought about by the improper behavior of the passenger which caused the assault of which he complained. (Daniels, J., concurring upon the ground that the recovery should not have exceeded a nominal sum.)
    Appeal from a judgment in favor of the plaintiff for $879.55, damages and costs, recovered upon a trial at tlie New York Circuit, wbicb was entered in tlie office of tbe clerk of the county of New York on December 8, 1888; and also from an order denying a motion made upon the minutes of the justice presiding on the trial for a new trial, which was entered in said clerk’s office on the 29th day of December, 1888.

      C. H.V. Yates, for the appellant.

      Hyland & Zabriskie, for the respondent.
   Tan Brunt, P. J.:

This action was brought to recover damages from the defendant for an assault committed upon the plaintiff by the driver of one of the cars of the defendant while he was a passenger thereon.

The evidence upon the part of the defendant in this action showed that the plaintiff got upon the front platform of one of the cars of the defendant. Upon boarding the car he commenced an altercation with the drivei’, using language which was very abusive, insulting and calculated to bring about a personal encounter, which result followed to the detriment of the plaintiff. The plaintiff, upon his part, denied this evidence, but it seems to have been substantiated by an intelligent and credible witness.

Upon the conclusion of the trial the learned court was asked to charge the jury, among other things, that if they believed that the plaintiff commenced the altercation, and, in the course of it, addressed indecent and insulting language to the driver, and language such as was calculated or likely to produce the assault, that the verdict must be for the defendant, which the court refused to charge, and the defendant excepted. This, we think, was error. It is undoubtedly true that a common carrier of passengers undertakes to protect passengers from the negligence or willful misconduct of its servants while engaged in performing a duty which the carrier owed to the passengers. But it has not as yet been held that, where a passenger by his own misbehavior, while being transported, has provoked a personal encounter between himself and one of the employees of the carrier, that the carrier is liable for the results. It may be true that the use of the abusive language to the driver did not justify the assault, as far as the driver is concerned, in the eyes of the criminal law; but there is no reason for holding that where a passenger, by his own improper and insulting behavior, while a passenger upon the road of the railway company, brings upon himself an assault, the carrier should be responsible. Carriers are to be held to the strictest responsibility. They must treat their passengers respectfully and protect them so far as they reasonably can from injury or insult on the part of their employees. But there is also a responsibility on the part of the passenger. He is bound to conduct himself in an orderly and decent rnannei’, and if he forgets his obligations, and, by his indecent behavior and by the use of language which is morally certain to end in a personal encounter*, he succeeds in his efforts to bring about such a result, certainly the carrier cannot be bound to protect the passenger under such circumstances from the natural and probable results of his own act.

It is clear that the act of the driver was not in the course of his employment, and the defendant can only be held under the rule that as the passenger must submit himself to the custody of the employees of the carrier, the carrier must be responsible even for the willful acts of the employees which result in a trespass against the passenger. But the reason of such a rule can have no application to a case where the trespass is brought about by the improper behavior of the passenger which caused the assault of which he complains. The duties of the carrier and the passenger are reciprocal. The carrier is bound to protect the passenger and the passenger, in order to entitle himself to such protection, is bound to behave himself in a decent and orderly manner.

Of course, this question must be considered in reference to this exception. If the evidence on the part of the defendant was true in regard to the manner in which this assault was provoked, it was . a question for the jury; and if the jury found upon the evidence in this case in favor of the plaintiff, the request in question having been charged, there would have been no reason for disturbing the verdict. But it seems to us that the defendant had a right to have this question submitted to the jury with proper instructions, and if they found that the assault had been provoked by unseemly behavior on the part of the plaintiff, no recovery could be had.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide event.

Brady, J\, concurred.

Daniels, J.:

The court did charge the jury that the plaintiff was not entitled to recover if he provoked the assault by his acts or threats of personal violence. This was required by the case for the reason that the driver testified that he was first personally assaulted by the plaintiff. The requests refused by the court were made upon the theory that the coarse, insulting and provoking words of the plaintiff would, of themselves, justify or excuse the assault of the driver. But the law is settled, that words alone will not excuse a resort to personal violence. For that reason these requests could not be charged. But the fact that the plaintiff brought on the altercation, and made use of language naturally calculated to provoke the driver, went very decidedly in mitigation of the damages. His conduct was entirely unbecoming a passenger on the car. It was proved by a disinterested witness, as well as by the driver, and in part was admitted by the plaintiff. And even if the jury considered him entitled to recover, the verdict should not have been for so large a sum as $500. It would be much more consistent with the justice of the case that his recovery should not exceed a nominal sum. On this ground, the motion for a new trial should have been allowed to prevail.

I agree, therefore, to a reversal and a new trial, with costs of the appeal to the defendant to abide the event.

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


author: Yan Brunt, P. J.:

text:
    ANNIE HAZZARD, as Executrix of the Last Will and Testament of EDWARD J. HAZZARD, Deceased, Respondent, v. ANNA P. HOXSIE, Appellant.

      Contract for publication on three theatre programs — terminates on the closing of one of the theatres.

    This action was brought upon a contract by which the defendant agreed to pay to the plaintiff’s testator the sum of “ $8.50 per week for publishing my (thedefendant’s) advertisement in the Fifth Avenue, Union Square and Lyceum Theatre programs, to occupy one inch on program page for the theatre season.” The season of the Fifth Avenue Theatre closed on the 28th day of May, the season of the Union Square Theatre on the 9th day of July, and the season of the Lyceum Theatre on the 16th day of July, 1887.

      Held, that the contract was an entire contract, and not susceptible of apportionment, and terminated on the 28th day of May, 1887, when the Fifth Avenue Theatre closed.

      That when it became impossible for the plaintiff to comply with the provisions of the contract, by publishing the advertisement on the programs of all the three theatres, the contract terminated.
    Appeal from a judgment directed by tbe court in favor of the plaintiff upon a trial at the New York Circuit, which was entered in the office of the clerk of the county of New York on the 22d day of January, 1889.

      James Flynn, for the appellant.

      F. Solinger, for the respondent.
   Yan Brunt, P. J.:

This action is brought upon a contract of which the following is a copy:

“ $8.50 per week. New York, September 23, 1886.
“ I hereby agree to pay Edward J. Hazzard the sum of $8.50 per week for publishing my advertisement in the Fifth Avenue, Union Square and Lyceum Theatre, to occupy one inch on program page for the theatre season. Season 1886, 1887.
“ANNA P. HOXSIE.”

The cause of action alleged was for the publication of the advertisement for the period commencing May 1, 1887, until the end of the theatrical season of the theatres, respectively. The season of the Fifth Avenue Theatre closed on the 28th of May, 1887, and the plaintiff in the complaint made an allowance of two dollars and fifty cents per week therefor, and the season of the Union Square Theatre having ended on the ninth of July, another allowance of two dollars and fifty cents was made, and the season of the Lyceum Theatre ending on the sixteenth of July, only three dollars was charged and claimed for the last week. In her answer the defendant denied each and every allegation in the complaint, and alleged that the theatrical season ended on the 1st of May, 1887, in support of which allegation no proof was offered. It is clear that the contract in question was an entire contract, and there is no authority for an apportionment. Either it ended with the closing of the Fifth Avenue Theatre or it continued in its entirety until the closing of the Lyceum Theatre. The contract was performed until the closing of the Fifth Avenue Theatre on the 28th of May, 1887, and payment was made thereon up to the 1st of May, 1887. And the question arises as to whether any recovery can be had upon this contract subsequent to the twenty-eighth of May, the time of the closing -of the Fifth Avenue Theatre. It is clear from a reading of this contract that it was the intention of the parties that the defendant was to pay eight dollars and fifty cents for the publication of her advertisement in the programs of the three theatres; and when it became impossible for the plaintiff to comply with the provisions of the contract by publishing in the three programs, it seems to be equally clear that the contract terminated, as it evidently was not the intention of the parties that the defendant was to pay eight dollars and fifty cents a week for the publication in either one or two of these programs. The contract being an entirety, therefore, terminated upon the closing of the theatrical season of the Fifth Avenue Theatre, because subsequent to that time, as already stated, the plaintiff could not comply with the contract to publish in the three programs. There is no ground upon which there could be any apportionment, because we do not know which was considered the most valuable by the advertiser, nor whether she would have desired to have continued the advertisement in two of the three publications. It seems, therefore, that the most favorable construction for the plaintiff which can be placed upon this contract is, that it terminated on the 28th of May, 1887, when the Fifth Avenue Theatre closed, and it became impossible longer' to continue the performance of the contract by publication in the programs issued by the three theatres mentioned in the contract. It appears, therefore, that the learned court below took an erroneous view of the contract, and instead of directing a verdict for the amount which lie did, should only have directed a verdict for thirty-seven dollars and twenty-five cents, the amount due on the contract on the 28th of May, 1887.

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

Brady and Daniels, JJ., concurred.

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


author: Van Brunt, P. J.:

text:
    ROSE N. HANRAHAN, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Passenger falling between the ca/rs and a station platform on an elemated railroad— duty of the passenger to use reasonable ca/re. '

    In an action, brought to recover damages for injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant, an elevated railroad company, it appeared that the plaintiff attempted to board one of the trains of the defendant which was moving down towards its station, at the intersection of Fifty-third street and Eighth avenue, in New York city. According to the plaintiff’s evidence there were a few passengers in front of her, the nearest being a woman who was about a foot ahead, going towards the same car platform. When the plaintiff reached the edge of the platform the woman’s dress covered the open space which necessarily existed between the car platform and the station platform. The plaintiff, as she was about stepping on the car platform, stubbed her toe against the side of the car platform, which was some inches higher than the station platform, and her leg fell in the space between the car platform and the station platform and she was severely injured.
    The proof showed that there must be some space between the cars and the platform, and that, because of difference of load, and stiffness and newness of springs; some cars will be higher than others over the level of the platform.
    Evidence was offered to show that accidents had happened at other stations from persons slipping in between the cars and the platform, and it was claimed, as a consequence thereof, that the construction of the platform or the operation of the road was thereby shown to be negligent.

      Held, that this evidence was clearly admissible, and that the fact that such accidents did happen was sufficient to call the attention of the defendant to the fact that there was danger in the maintenance of such appliances.
    That if, however, notwithstanding the fact of this notice by the happening of accidents, the structure was of such a character that defendant’s passengers would be uninjured if they used reasonable care in boarding the cars of the defendant, then the mere happening of these accidents was not proof of negligence. .
    That the passenger was just as much bound to use reasonable care in boarding the car as the defendant was bound to use reasonable care in the construction and maintenance of the platforms of the cars and of the station.
    That as the plaintiff had been going up and down the defendant’s road for years, and must have known that an open space existed, and knew that she would have to cross that space, and stepped forward to put her foot on the platform of the car while the whole 'space was, as she testified, covered by a passenger’s dress, so that she could not see whether she was putting her foot upon the platform or in the open space, she was guilty of contributory negligence.

      Motion for a new trial, in an action tried at the New York Circuit on December 6, 1888, in which a verdict was rendered for the plaintiff, and the exceptions of the defendant were directed to be heard in the first instance at the General Term, and the judgment to be in the meantime suspended.

      E. S. Sapallo, for the appellant.

      Charles Strauss, for the respondent.
   Van Brunt, P. J.:

The defendant is a corporation duly organized under the laws of the state of New York, and is engaged in the carriage of passengers upon its elevated railways in the city of New York. On the 25th day of August, 1886, the plaintiff, having duly paid her fare as a passenger, attempted to board one of the trains of the defendant going down towards its station at the intersection of Fifty-third street and Eighth avenue. According to the plaintiff’s evidence there were a few passengers in front of her, the nearest being a woman who was about a foot ahead, going toward the same car platform. As they reached the edge of the platform the woman’s dress covered the open space which necessarily exists between the car platform and the station platform. The plaintiff as she was about stepping on to the car platform stubbed her toe against the side of the car platform, which was some inches higher than the station platform, and her leg fell into the space between the car platform and the station platform and was severely injured. The plaintiff had been a frequent passenger upon the defendant’s cars and had always used this station. The conductor of the train and the gateman of the station are both positive that the plaintiff was the only passenger who attempted to board the train at this point, thus contradicting the plaintiff’s statement that the space between the car and platform was covered by a preceding woman’s dress. Upon the trial the contention upon the part of the defendant was that there was no evidence that it had not exercised ordinary care in the construction of its cars and station platform, and that there was proof that the plaintiff had not used reasonable care in boarding the ears, as she knew that there was a space between the car and platform, and she knew that the car platform was higher than the station platform and did not look where she was stepping, but looked straight ahead while she was boarding the car.

The proof shows, without dispute, that there must be some space between the cars and the platform, and that, because of difference of load and stiffness and newness of springs, some cars Vill be higher than others over the level of the platform.

It is conceded by the respondent that the defendant was not bound to use the highest diligence in this respect, but that it was only bound to use ordinary care. This is the rule laid down in the case of Lafflin v. Buffalo and Southwestern Railroad Company (106 N. Y., 136). The court say: “It (the defendant) was not bound so to construct this platform as to make accidents to passengers using the same impossible, or to use the highest degree of diligence to make it safe, convenient and useful; it was bound simply to exercise ordinary care in view of the dangers attending its use, to make it reasonably adequate for the purpose to which it was devoted.”

The evidence in this case shows that there must be some space between the platform and the cars; that the road cannot be operated without it, and that a space of three and one-half to four inches would not be unreasonable, which in practice would vary from, two and one-half to six inches or more. To meet this evidence there was proof offered to show that accidents had happened at other stations from persons slipping in between the cars and the platform, and it was argued that, therefore, the construction of the platform or the operation of the road was shown to be negligent, and, also, that at the South Ferry station a movable platform was used which shoved out when the train was at rest. Upon the part of the defendant it was shown that there was only one station at which such an appliance was used, and that it was there used because the cars stood upon a curve and were thrown from the platform, and that this station being a terminal one, the cars could be stopped at one spot, which could not be done at every station without great loss of time.

The evidence as to the happening of similar accidents was cleaiuy admissible, and it was not necessary to show all the particulars attending the happening of the accidents. The fact that such accidents did happen was sufficient to call the attention of the defendant to tbe fact that there was danger in the maintenance of such appliances ; that their passenger’s were in danger during their use, and, consequently, the defendant could not claim exemption, because there had been nothing to call its attention to the dangers which its passengers ran.

If, however, notwithstanding the fact of this notice by the happening of accidents, the structure was of such a character that its passengers were safe if they used reasonable care in boarding the cars of the defendant, then the mere happening of these accidents was no proof of negligence. The passenger is just as much bound to use reasonable care in boarding a car as the defendant is bound to use reasonable care in the construction and maintenance of the platforms of the cars and stations; and if the passenger does not use such reasonable care in boarding a car, clearly no recovery can be had. It is clear that the plaintiff had no reason to expect to find a solid space between the car and the station. She had been going up and down that road for years and must have known that an open space existed, and she knew that she would have to cross that space, and yet she stepped forward to put her foot upon the platform of the car while the whole space was, as she says, covered by a previous passenger’s dress, and she, therefore, could not see whether she was .putting her foot upon the platform or in the open space between, and, in fact, this circumstance is offered as an excuse for the plaintiff not seeing, although there is no evidence that she looked where she should put her foot, in consequence of which she stumbled.

The proximate cause of the accident would thus seem to be the long dress of the passenger which covered the space alleged to be dangerous, which the plaintiff knew to be there, and which she knew she must step over to board the train in safety, and which she did not do because it was covered by the long dress of the preceding passenger. If a person walking along a sidewalk which he ordinarily has the right to assume is fit for traveling, but in which, in this instance, he knows that there is a hole into which if he falls he will break his leg, and he walks right on and attempts to step over it, without looking whether he is putting his foot over the hole or into it, and he puts his foot into it, he cannot be said to use ordinary care, or any care at all. This seems to have been the degree of care used by the plaintiff ; she knew this space existed between the ear and the platform of the station; she also knew that she must step over this space and upon the car platform, and yet it does not appear that she looked when she was stepping or took any pre'cautions whatever to avoid the evident results of stepping between the car and the station.

In the case of Palmer v. Pennsylvania Company (111 N. Y. 488), the plaintiff had been injured by slipping upon the ice upon the platform of the car. The court held that he was guilty of contributory negligence, because knowing that the platform was slippery the plaintiff walked fearlessly over it without availing himself of hand-rails within his reach on both sides of the platform; and the court laid down the rule that the same duty which rested upon the defendant in that case to see and remove this obstruction rested upon the plaintiff with still greater force to guard himself from injury while passing over it. Applying this rule to the case at bar, the imperative duty seems to have been cast upon the plaintiff to look where she was stepping, as she knew that there was a space to be cleared, and if she failed to do so that she ran the risk of injury. But she went straight ahead without looking, or if she did look, could not see because a preceding passenger had a long dress.

The case of Dubois v. Ciyy of Kingston (102 N. Y, 219), illustrates this principle where the plaintiff was held to be guilty of negligence in stumbling upon a stepping stone upon the sidewalk, because, being well acquainted with the locality, had he been careful in exercising his faculties he could have avoided the accident. We cannot see how, upon this state of the facts, the plaintiff can be said to have shown that she used ordinary care in boarding the car, as it distinctly, appears that in so doing she used, if we may use the expression, ordinary negligence.

The exceptions should be sustained, and the verdict set aside and a new trial ordered, with costs to defendant to abide the final event.

Daniels and Barrett, JJ., concurred.

Exceptions sustained, new trial ordered, costs to appellant to abide event.


text:
    CAROLINE D. CRANK, Respondent, v. THE FORTYSECOND STREET, MANHATTANVILLE AND SAINT NICHOLAS AVENUE RAILWAY COMPANY, Appellant.

      Evidence to show that a permanent injury makes the person injwred liable to staffer more from other ailments.

    In an action brought to recover damages claimed to have been sustained by reason of the conductor of the defendant’s car being thrown against the plaintiff while the car was passing a curve, it was conceded that a sufficient cause of action was made out to justify the submission of the case to the jury, but it was claimed that the judge erred in charging the jury that they might take into consideration, upon the subject of the permanency of the injury, the plaintiff’s liability to suffer more from other ailments than she would have suffered had it not been for the injury.
    It appeared that the plaintiff required medical attendance for a considerable length of time, and, 'also, that the injury she received was permanent, and would affect her during her future life, the physician testifying that if she was sick, from other causes, the result of this injury would always complicate them.

      Held, that as the evidence was sufficient to entitle the jury to come to the conclusion that theie was a reasonable certainty that the results of the accident would be permanent, that, therefore, the submission to the jury of the question of the plaintiff’s liability to suffer more from other illnesses than she would have otherwise done, came within the rules laid down in reference to the effect of injuries where there is a reasonable certainty that they will be permanent.
    Appeal by the defendant from a judgment recovered at the New York Circuit, entered upon the verdict of a jury for the sum of $2,500, in favor of the plaintiff, in the office of the clerk of the county of New York on November 19, 1888, and from an order made on November 19, 1888, and entered in the office of the said clerk on the same day, denying the defendant’s motion, upon the minutes of the justice presiding at the trial, for a new trial.

      W. C. TruII, for the appellant.

      J. D. Townsend, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages claimed to have been sustained by the plaintiff by reason of the conductor of the defendant’s car being thrown against the plaintiff while the-car was passing a curve. The ground upon which the defendant was held liable was that the driver of the car was driving at a rate of speed such as would occasion a jolt and thereby throw the conductor against the person of the plaintiff.

It is conceded that a cause of action was made out such as entitled the case to be submitted to the jury. But it is claimed that the damages were excessive and that the learned judge made an error-in charging the jury that they might take into consideration, upon the subject of the permanency of the injury, the jDlaintiff’s liability to suffer more from other ailments than she would have suffered had it not been for the injury. Although the verdict seems large, in view of the injuries which the plaintiff was shown to have suffered as the result of the accident, yet it is not so excessive as to justify this court in interfering with it. It appeared that the plaintiff' required medical attendance for a considerable length of time, and also that the injury she received was permanent and would affect, her during her future life. Neither does the exception to the chai'ge afford any reason for a reversal. The evidence was sufficient, to entitle the jury to come to the conclusion that there was a reasonable certainty that the results of the accident would be permanent;, the physician testifying that it would last her as long as she lived, and that if she was sick from other causes the result of this injury would always complicate them. This furnished a ground for the consideration by the jury of the results of the injury. It was permanent and it would complicate any affection she might suffer from arising from other causes; and, therefore, the submission to the jury of the question of the plaintiff’s liability to suffer more from other illnesses than she would have done, seems to come within the rules laid down in reference to the effect of injuries where there is a reasonable certainty that they will be permanent. It is true it may be that the plaintiff will never suffer from any other illness, but whei-e the injury is of such a character as render her less able to contend against the ordinary ills which flesh is heir to, it does not seein to be at all speculative to allow the jury to take such a state of affairs into consideration in making compensation to the plaintiff' for the injuries suffered.

The judgment should be affirmed, with costs.

Brady and Danels, JJ., concurred.

Judgment affirmed, with costs.


text:
    WILLIAM KRAMER, Appellant, v. GUSTAV AMBERG and HENRY R. JACOBS, Respondents.

      Breach of conditions against subletting — remedies and rights of the lessor.

    In an action brought to have the lease of a building erected in the city of New York, known as the Thalia Theatre, declared and adjudged to have ceased and come to an end on account of the act of the lessee Amberg in subletting the said premises to the defendant Jacobs in violation of the terms of the lease, the complaint alleged that the plaintiff, the lessor, had in no way acquiesced in or approved of the said sub-lease, or the occupation of the theatre by said defendant Jacobs for any purpose whatever, and that the plaintiff, in accordance with the provisions of said agreement, and because of the violation of the conditions and provisions thereof by the defendant Amberg, elected to have the said written lease cease, determine and come to an end immediately.
    Upon an appeal by the plaintiff from an order denying a motion for an injunction pendente lite, forbidding the defendants to use the theatre, held, that for the breach of the condition of the lease to Amberg not to assign or sublet, the plaintiff had two remedies, either an action upon the covenants in the lease to enjoin Amberg from subletting or assigning, or to re-enter because of the breach of the covenant.
    That if the plaintiff had not elected that the lease should determine and come to an end, because of the breach of these covenants, he would have had a right by injunction in a proper suit in equity to enforce the covenants in the lease, suing upon the lease, but that having elected that the lease should terminate, his right to bring a suit to enforce the covenants in that lease terminated.
    That the plaintiff having elected that the lease should end, because of the breach of these covenants, the lease was thereby terminated, and the only remedy which he had was a right of re-entry, which was to be enforced by the ordinary proceedings for the recovery of the possession of real property unjustly withheld from its true owner, namely, by an action in ejectment.
    Appeal from an order made at a Special Term, held in the county of New York, which was entered in the office of the clerk of the county of New York on October 17, 1888, denying the plaintiffs motion for an injunction herein.

      David Gerber, for the appellant.

      B. Steinert, for the respondents.
   Van Brunt, P. J.:

The complaint in this action alleged that the plaintiff was owner of land and a building erected thereon, situate in the city of New York, known as the Thalia Theatre, and that in the month of June, 1886, he entered into an agreement in writing with the defendant Amberg, whereby the plaintiff let to the defendant the said premises for a term commencing on the 1st of June, 1886, and ending on the 31st of May, 1891; and that it was, among other things, provided in said agreement that the defendant should not and would not assign his interest in said lease or written agreement, or underlet or sublet the whole or part of said premises without the written consent of the plaintiff. The complaint further alleges that in the latter part of May, 1888, the defendant Amberg sublet the said premises to the defendant Jacobs; and that the plaintiff has not consented to said sub-lease either in writing or otherwise, and that he has in no way acquiesced in or approved of said sub-lease, or the occupation of said theatre by said defendant Jacobs for any purpose whatever; .and that the plaintiff, in accordance with the provisions of said written agreement, and because of the violation of the conditions and provisions thereof by said defendant Amberg, elects to have the .said written lease or agreement cease, determine and come to an end immediately. The complaint then demands judgment that the written agreement or lease be declared and adjudged to have ceased and come to an end, and that the defendant Amberg be enjoined and restrained from permitting the said Jacobs to occupy the said theatre .and the scenery therein. The complaint also demands other relief.

Upon this complaint a motion was made for an injunction restraining the defendants and each of them from continuing to use or •occuj>y, or in anyway interfere with the premises known as the Thalia Theatre and the scenery therein contained; and also enjoining the defendant Amberg from making any lease, sub-lease or •assignment of his lease of said premises to the defendant Jacobs or any other person. This motion having been denied, from the order thereupon entered this appeal is taken.

For the breach of the condition of the lease to Amberg not to .assign or sublet, the plaintiff had two remedies, either, in an action upon the covenants in the lease to enjoin Amberg from subletting or assigning, or to re-enter because of the breach in the covenant. In his complaint the plaintiff alleges that he has elected, because of the violation of the covenants in the lease, to have the same cease, •determine and come to an end immediately. He had a right to make this election, and if the covenants in the lease were violated, the lease, by reason of such election, terminated, and the plaintiff had no right of action thereon because it had ceased to exist. After having elected that the lease should cease, he now seeks, by this action, to enforce covenants contained in an instrument which has ended. If the plaintiff had not elected that the lease should determine and come to an end by reason of the breach of these covenants,, he would have had the right, by injunction in a proper suit in equity, to enforce the covenants in the lease, suing upon the lease, but having elected that the lease should terminate, then his right to bring suit to enforce covenants in that lease also terminated, because upon an instrument which has ended no right of action can be based.

As already stated, the plaintiff had the right to elect that the-lease should end because of the breach of these covenants; and having so elected, the lease terminated, and the only remedy which he had was a right of re-entry, which was to be enforced by the ordinary proceedings for the recovery of the possession of real property unjustly withheld from its true owner, viz., by an action in ejectment.

We think, therefore, that the learned judge below was correct in denying the motion for an injunction because there was nothing-upon which an injunction could be founded, the lease having been terminated by the election of the lessor.

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

Daniels and Barrett, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Van Brunt, P. J. :

text:
    THERESA LYNCH, Appellant, v. THE FIRST NATIONAL BANK OF NEW JERSEY, Respondent.

      Check, drawn to the order of the maker and delivered hy him unindorsed — what acts shoto an assignment of apart of the deposit of the maker.

    In an action brought by the holder of a certified check drawn by F. F. Wilder to liis own order, bearing date the 1st day of June, 1888, upon the defendant for the sum of $500, which was delivered to the plaintiff by the drawer, but not indorsed, it appeared that the drawer of the check desired to purchase certain merchandise of the plaintiff, which the plaintiff agreed fo sell him for $500, and brought out a check drawn on a bank in Jersey city. The plaintiff stating that she did not know whether to take it or not the drawer said: “ It is all right, you can send your son to Jersey City now and get the money; ” and the son saying that he could not go the drawer said: “ Well, it is just as good as money; the check is certified; it is as good as money; all that you have to do is to take the check and go and get the money.”

      Held, that as the intention of a party was to be arrived at from his acts, and the expressions accompanying the acts, it might be fairly deduced from the fact of Wilder giving this certified check, and making the statements that he did, that it was his intention to confer upon the plaintiff the title to $500 of the money which lie had on deposit, and that that question should have been decided by the court or jury.
    Appeal from a judgment in favor of the defendant, tried at the New York Circuit without a jury, which was entered in the office of the clerk of the city and county of New York on November 9,1888.

      A. Kling, for the appellant.

      Hamilton Wallis, for the respondent.
   Van Brunt, P. J. :

The plaintiff; in this action is the holder of a certified check drawn by one E. F. Wilder, bearing date 1st of June, 1883, upon the defendant for the sum of $500 to his own order, which was delivered to the plaintiff; by the drawer, but not indorsed. An action having been brought by the plaintiff upon the check against the bank, it was held that a recovery could not be had although an action might be maintained against the defendant if the plaintiff could, show an assignment of a part of the deposit belonging to the drawer of the check. The complaint was amended so as to bring in this additional proof, and the evidence in the case showed the circumstances under which the check was given. It appears that the drawer of the check desired to purchase certain merchandise of the plaintiff which she agreed to sell him for $500. The drawer of the check then brought out a check on the bank in Jersey City, and the plaintiff stating that she did not know whether to take it or not, for although she had seen him several times she did not know him very well, he said “It is all right; you can send your son to Jersey City now and get the money.” The son said he could not go then; the drawer said “ Well, it is just as good as money. The check is certified; it is as good as money. All that you have to do is to take the check and go and get the money.”

It must be conceded that if the learned court below had found upon this evidence that the drawer of the check had never assigned or transferred any part of the balance due to him from the defendant to the plaintiff, that this would have been an end of the action. But there is no such finding, the finding being that said Wilder, the drawer of the check, never otherwise assigned or transferred the balance owing to him from said bank or any part thereof to the plaintiff. This brings up the question whether an inference that there was intended to be an assignment may be drawn from the evidence in question. If such inference can be drawn, then the learned court was bound to find either that there had or had not been an assignment, or if the ease was tried by a jury, it must be submitted to the jury and their verdict taken upon the point.

It is urged, upon the part of the respondent, that no such inference can be drawn from the evidence, and that the language used does not fairly import any intention to assign any portion of the fund in bank, but that it related rather to the validity of the check, and the ease with which the plaintiff could procure payment thereof.

The question as to whether there was a setting apart and a transfer of the title to a portion of the deposit of Wilder, the drawer of the check, with the defendant, depends upon his intention at the time of the giving of this check. An assignment need not be in express words. It may be by parol, and it requires no writing. Therefore, if it can be deduced from the evidence in this case that there was an intention to transfer and assign over to the plaintiff the $500 in the bank represented by this check, then an assignment was made ont and a right of action accrued to the plaintiff. In the case of Risley v. The Phenix Bank (83 N. Y., 318), where an assignment by parol was sought to be upheld, it is true that the plaintiff swore to the oral assignment, but the decision did not depend upon that evidence entirely. In fact, the principles laid down in that case show that where' there is an intention to assign a thing in action, which might be deduced from the transaction itself, that, the title thereto is transferred to the assignee. The court held that an assignment of an account might be made without writing or delivery of any written statement of the claim assigned so as to vest in the assignee a right to proceed in his own name for the recovery of the debt, provided only that the assignment is founded upon a valid consideration between the parties. And various other cases are cited showing under what circumstances assignments may be established, and by what evidence they may be maintained; and in one case delivery of an execution was held to be a good equitable assignment of a judgment.

Therefore, when, under the circumstances appearing in this case, the certified check in question was given, if it was the intention of Wilder to transfer the title of so much of that deposit as was represented by that certified check, a good assignment is established through which this action may be maintained. Now, as the intention of the party is to be arrived at from his acts and expressions accompanying the acts, why may it not be fairly deduced from the fact of Wilder giving this certified check and making the statements which he did, that it was his intention to confer upon the plaintiff the title to $500 of the money which he had on deposit.

It seems to me that such an inference may be drawn, and although the contrary inference might obtain, yet still, until it is found by the trial court or by a jury that there was no assignment, there is no such finding upon this evidence as to preclude the plaintiff from claiming that the contrary inference may be drawn. The finding, as already stated, that Wilder did not otherwise assign, is not a finding upon the facts, that he did not intend to assign, and if he had the intention to assign, then by the acts which he did, he did assign.

I think, therefore, that there is no sufficient finding to justify the conclusion at which the learned court below arrived, and that the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Brady and Bartlett, JJ., concurred.

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