author: Bradley. J.:

text:
    Joseph W. Hopper, Appellant, v. Emma B. Hopper, Respondent.

      Matrimonial action to annul a marriage whore a former husband of the defendant is living — counsel fees cannot be allowed — Gode of Gin. Proc. § 1743.
    Upon an application for counsel fees, made in an action brought to annul a marriage upon the ground that, at the time-it took place, the former husband of the defendant was living, it appeared that the parties resided and were married in the State of Hew York; that the defendant had never been divorced from her former husband, and that both parties knew that the former husband was living. The plaintiff alleged good faith upon his part; the defendant denied that allegation and, upon her part, alleged that she believed that she had a right to marry again.

      Held, that the parties were not husband and wife;
    That counsel fees advanced during the pendency of matrimonial actions were predicated upon the marriage relation, and that, where no such relation existed, there was no ground for the making of any allowance.
    Appeal by the plaintiff, Joseph W. Hopper, from an order of the Supreme Court, made at the Monroe Special Term, bearing date the 26th day of August, 1895, and entered in the office of the clerk of the county of Steuben, directing him to pay to the attorneys for the defendant the sum of seventy-five dollars within twenty days from the service of the order, as counsel fee and for her expenses in conducting the defense of the action, and staying all proceedings on the part of the plaintiff until the payment of such sum.

      Pe Mermlle Page, for the appellant.

      Poison & Poison, for the respondent.
   Bradley. J.:

The action was brought to procure a judgment declaring void the marriage contract of the parties for the alleged reason that the former husband of the defendant then was, and is living, and that the marriage with such former husband was then and is in force. (Code Civ. Proc. § 1743.)

Those facts are alleged and are admitted by the parties in their pleadings. And the only issues presented by the complaint and answer raise the question of the good faith of the parties respectively in contracting the marriage. The plaintiff alleges good faith on his part. This is denied by the answer of the defendant, who alleges that she acted in good faith and in the belief that she had the right to enter into the marriage contract with the plaintiff. This assertion of good faith was not founded upon the belief that her former husband was dead. Both the plaintiff and the defendant at the time of their marriage knew that he was still living. The case, therefore, does not come within the provisions of section 1745 of the Code of Civil Procedure. The parties are not husband and wife, and no judicial declaration is necessary to render the marriage ineffectual and invalid.

The answer alleges no defense in support of that relation of the plaintiff and the defendant, nor any facts which, if established, will deny to the eourt the power to direct the judgment sought by the plaintiff. The most that can be urged for them is that the good faith of the defendant and the want of it on the part of .the plaintiff may furnish a reason to enable and induce the court in the exercise of its discretion to deny any relief to the plaintiff.

In support of that view is cited Kerrison v. Kerrison (8 Abb. N. C. 444). The defendant in that case had been divorced in. an action by his former wife on the charge of adultery, and thus-by the judgment and the statute was denied the right to marry during her life. He, nevertheless, went with the plaintiff into the State of New Jersey, and there being married, they returned to this State. The view of the court was that the marriage having taken place outside of this State was valid here, notwithstanding the statute prohibiting the marriage within the time there mentioned of a person divorced for adultery and declaring a marriage in violation of its provisions woid. (2 R. S. 139, § 5, Laws of 1819, chap. 321, Code Civ. Proc. § 1761.)

The same doctrine was applied in Van Voorhis v. Brintnall (86 N. Y. 18), where it was held that the inhibition by the statute of remarriage in such a case was in the nature of a penalty, and that as the marriage there in question was valid in the State where it was contracted it was not void within this State on the return of the contracting parties to it; and in that respect Marshall v. Marshall (2 Hun, 238) was overruled.

The doctrine of those cases is not applicable to the present one. The parties resided and were married in this State. No judgment of dissolution of the marriage contract between the defendant and her former husband had been obtained by ¿ither of them. The marriage of the parties to this action was absolutely void, and the fact so appears by the pleadings.

Our attention is called to no case where the facts indisputably so appeared, in which an allowance of either alimony or counsel fee has been allowed jpendente lite.

In O'Dea v. O'Dea (31 Hun, 441) the defendant in his answer alleged matters of defense and there were material issues to be tried. This more fully appears in the import of the case on review. (101 N. Y. 23.)

In Anonymous (15 Abb. Pr. [N. S.] 311) material matter of defense was alleged, and in that connection the denial of certain allegations of the complaint, not essential to the action, was deemed to have been properly alleged in the answer as bearing upon the question of costs, etc.

The theory upon which advances are directed to be made during the pendency of an action for divorce, or for the anullment of a marriage contract as well as for alimony, is that the person seeking them stands in the relation of a wife, and to enable her to obtain such relief or to defend in that relation. (Collins v. Collins, 71 N. Y. 269.) That is not the situation of the defendant. She confessedly is not the wife of the plaintiff; nor does she defend as such. Her status in that respect will not be affected by the result ■of the action whatever it may be. The defendant has no opportunity upon the facts admitted and alleged by her answer to claim that she is the wife of the plaintiff, and, therefore, in the legal sense, her relation to the action for the purposes now under consideration cannot be treated as that of the wife of the plaintiff. If, however, for any cause the court may in its discretion deny judgment to the plaintiff it is unnecessary now to consider the consequences as to ■costs in favor of the defendant which may follow.

In Marshall v. Marshall, upon the conclusion reached that the marriage there in question was absolutely void, the court treating the plaintiff as guilty of contempt in contracting it, denied the relief sought by him. And in the Kero-ison case the view of the court was that if the marriage there in question was void the plaintiff was not entitled to relief. That question, in its application to the present or any case where the marriage sought to be annulled is void, does not necessarily arise here, and is not considered on this review.

In Appleton v. Warner (51 Barb. 270), where the relief sought wasia decree declaring the marriage void, the court held that as it 80 appeared, the defendant could not be treated as the wife of the plaintiff, and that he was under no obligation to pay her counsel, and reversed the order granting the'defendant alimony and a sum as counsel fee.

In view of the undisputed- facts in the present case there seems to be no reasonable support for the allowance.

The order appealed from should be reversed.

Lewis, 'Ward and Adams, JJ., concurred.

Order reversed.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    George Lallman and Others, Respondents, v. Theron Hovey and Belle Hovey, Appellants.

      Fraudulent conveyances —when other creditors may come in as parties ¡plaintiff to an action to set them aside — evidence of a justice’s judgment and of a Supreme OouH judgment — waiver of a defect in it — proof of .a lost instrument by an interested party.

    In a creditor’s suit to set aside a transfer of property made by the judgment debtor, a certified transcript of the entry in the docket book of the judgment of the Supreme Court in his favor is not competent proof that he is a judgment creditor, but where no objection upon this ground is taken by motion or otherwise on the trial, the defect of proof is not available on appeal.

      Semble, that where in such an action the only evidence offered of a judgment alleged to have been recovered in a Justice’s Court is the docket in the county clerk’s office, and no objection is taken to the omission to put in evidence the transcript of the judgment from which the docket was made, the question as to whether such, transcript was essential to the proof of the judgment is not presented on an appeal from the judgment in- the creditor’s suit.
    Although it does not appear by the summons and complaint in a creditor’s action that the action was brought by the plaintiffs in their own behalf and on behalf of all other judgment creditors similarly situated, the court may make an order permitting other judgment creditors to come in and share in the expenses and the results, provided the plaintiffs consent to its so doing.
    Where a paper which is material to the defense has been once identified and introduced in evidence, and has been lost pending a long adjournment, and proof is made of a thorough search for it, secondary evidence of its contents i$ admissible.

      Semble, that a greater discretion exists in the trial court as to the effect to be given to the testimony of a party interested in the event of the action when he testifies in regard to the existence or execution of a lost paper than in regard to its loss.
    Appeal by tbe defendants, Theron Iiovey and another, from & judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 21st day of ' March, 1895, upon the report of a referee.

      Edward T. Ewrand, for the appellants.

      E. 0. Fa/rra/r, for the respondents.
   Bradley, J.:

The defendants are husband and wife. The plaintiffs, as judgment creditors of the husband, seek to set aside as fraudulent as against his creditors conveyances of real property and a bill of sale of personal property made by him to the other defendant. The action was’ originally brought by the plaintiffs Lallman and Palmer. -After the commencement of the action an order of the court was made to allow 'William P. Sherman, another judgment creditor of the defendant Theron Hovey to come in as a party plaintiff. The action was founded upon an alleged judgment recovered in a Justice’s Court by the original plaintiffs, and docketed -in the county clerk’s office. Sherman’s judgment was recovered in the Supreme Court. Executions upon the judgments had been returned unsatisfied. The only evidence as against the defendant Belle Hovey of the recovery of the judgment in the Justice’s Court was the docket of it in the county clerk’s office. And as no objection was taken to the omission to put in evidence the transcript of the justice’s judgment filed, and upon which the docket entry was made, the question whether that otherwise would have been essential is not here for consideration. (Jackson ex dem. Witherell v. Jones, 9 Cow. 182.)

The only documentary evidence introduced to prove the recovery of a judgment by Sherman was a certified transcript of the entry in the docket book, kept for such purpose in the clerk’s office. This was insufficient to prove that he was a judgment creditor of Theron Hovey. But as that objection was not distinctly taken by motion or otherwise at the trial, the question is not available to the defendants on this review. If it had been raised during the trial it is quite likely that the requisite evidence would have been supplied.

Although it does not appear by the summons and complaint, or either, that the action was brought by the plaintiffs in behalf, not only of themselves, but of all other judgment creditors similarly situated, who should chose to come in and share in the expenses and results, it was legitimate for the court to make an order permitting them to do so, on obtaining the consent of the plaintiffs. (Edmeston v. Lyde, 1 Paige, 637; Parmelee v. Egan, 7 id. 610; Claflin v. Gordon, 39 Hun, 54.)

The point now made, that no issue was tendered by Sherman by any pleading on his part, requires no consideration, because the question was not raised at the trial.-

The defendants alleged that the • conveyance and bill of sale in question were made and taken in good faith, and had a valuable and adequate consideration for their support. And on the trial they, by their own testimony, gave evidence to the effect that one Mrs. Godsave held a mortgage made by one Alexander Cully on certain real property, amounting to about $4,000 ; that she assigned the mortgage to the defendant Theron Hovey, her son, for the benefit of his wife and with the direction that' he collect the mortgage for, and pay the proceeds to her; that with the proceeds of that mortgage she paid for the conveyances and bill of sale in question, and that the husband at the time of the assignment of such mortgage executed an instrument in writing drawn at the dictation of Mrs. Godsave. This instrument early in .the trial, and before the plaintiffs rested, was produced and identified by the defendant Belle Hovey on her cross-examination by the' defendants’ counsel. After this, and before the plaintiffs had put in all their evidence in chief, the further hearing was adjourned for about two months, when the trial was resumed. And after the defendants entered upon their defense, the defendant Theron Hovey testified that, at the time the instrument referred to was so identified, it was taken and retained by the defendants’ attorney, and that he and the defendants’ attorney had searched for it amongst the papers of the latter in the case and that they had been unable to find the instrument; and both of the defendants testified that they had not seen it since it was handed to and taken by their attorney immediately following its identification as before mentioned.

It was admitted by the plaintiffs’ counsel that the defendants’ attorney was unable to find the paper. Thereupon the defendants offered to prove the contents of that instrument, and that they were to the effect that Theron Hovey acknowledged that the Cully mortgage had been assigned to him by Mrs. Godsave for his wife, and that he had agreed to collect it, and pay the proceeds to his wife. The plaintiffs’ objection to the introduction of the evidence thus offered, upon the ground that the paper was the best evidence, was sustained, aud the defendants excepted. Although at common law the evidence of a party was not admissible for other purposes, it was competent to prove by him the loss of a paper the contents of which were sought to be proved by secondary evidence, and the evidence of a party when it embraced all the facts essential to the jaurpose was deemed sufficient to prove the loss. And while the question of the sufficiency of the proof of the loss is for the court to determine, the discretion is not so broad as to fairly permit the disregard of the evidence of a party on that subject, merely because he is such. (Jackson ex dem. Livingston v. Frier, 16 Johns. 193; Adams v. Leland, 7 Pick. 62; Woodworth v. Barker, 1 Hill, 172; Partridge v. Badger, 25 Barb. 146, 173; Supervisors v. White, 30 id. 72; Moore v. Livingston, 14 How. Pr. 14.)

The evidence of the loss of the paper was sufficient to warrant the proof of its contents provided the fact of the existence of it was sufficiently shown. The execution of it by Theron Hovey was a fact as to which at common law a person interested in the event of the action would not have been permitted to testify, and although such a person may now do so, a less qualified discretion may be applicable to the determination by the court of the question of the existence or execution of a lost paper than can be reasonably exercised on the subject of the loss, when in terms the evidence includes all the facts essential to prove the loss. The evidence of the defendants tended to prove the existence of the paper. And the objection to the reception of the evidence offered to prove its contents on the ground simply that the instrument itself was the best evidence, would seem to import that, assuming its existence, the loss of it was not sufficiently proven to render the evidence of its contents admissible.

On the subject of the loss of the paper and the inability of the defendants to produce it, no suspicious circumstances seem to appear in the evidence. And whatever there may have been of suspicion arising from the evidence and the circumstances appearing on the trial as to the instrument, had relation to its purpose and the effect for which it was intended, and as to whether it in fact represented a bona fide transaction.

Those were questions to be disposed of by the referee in the consideration of the case upon the merits. Then the credibility of the evidence of the defendants, in view of their interest in the 7 . * event, would properly be a matter for his determination.

It may be that the result would have been the same if the evidence of the contents of the paper had been' received. But as that cannot necessarily be assumed on this review, the error in excluding tlje evidence upon the objection taken cannot be disregarded.

The judgment should, therefore, be reversed and a new trial granted, costs of this appeal to abide the final award of costs.

Lewis, Ward and Adams, JJ., concurred.

Judgment reversed and new trial granted before another referee, costs to abide the final award of costs.


text:
    Harmon H. Howell, Appellant, v. The Grand Trunk Railway Company of Canada, Respondent. John Sutterby, Appellant, v. Same, Respondent.

      Negligence — loss of baggage by fire while in possession of customs officers — stopover privilege does not include baggage — reasonable rule as to carriage of baggage.

      A. rule of a railroad corporation, ■which, provides that baggage can only be checked to the place for which the passenger holds a ticket, is a reasonable one.
    The court may, on appeal, in support of a judgment treat pleadings as amended so as to conform to the facts found when this can be done without overruling a valid exception based upo.n a variance between the pleadings and proof, but this rule does not apply with the same force to create error and to reverse the judgment.
    In an action brought to recover damages resulting from the destruction of baggage by fire, it appeared that the plaintiff purchased a ticket from Blythe, Canada, to Suspension Bridge, N. Y., and that the baggage was transported to the latter place; that upon its arrival it-was taken possession of by the custom officers of the United States; that it was put by them in the custom room situated in a building belonging to the New' York Central and Hudson Biver Railroad Company, with which the defendant had a trackage agreement; that without fault of the defendant the baggage was burned up upon the night of its arrival at Suspension Bridge; that the ticket permitted the plaintiff to stop over at an intermediate point known as London; that a rule of the company required that baggage should be checked through to the point of destination, and that when the train arrived at London the baggageman upon the train refused to put the baggage off at that station.

      Held, that the rule was a reasonable one, and that the plaintiff could not recover;
    That the stop-over privilege upon the through ticket did not require the company to unload and reload the baggage at the intermediate station.
    Appeal by tbe plaintiffs in each of tbe above-entitled actions from judgments of the Supreme Court in favor of tbe defendant, entered in tbe office of tbe clerk of tbe county of Erie on tbe 23d day of November, 1894, upon the report of a referee.

      Dilworth M. Silver, for the appellants.

      George F. Browned, for the respondent.
   Bradley, J.:

On January 2, 1883, tbe plaintiff in each of tbe above-entitled actions purchased at Blythe, Canada, a ticket for passage over the defendant’s railroad from that place to Suspension Bridge, N. Y., and delivered to the defendant bis baggage, to be carried to the same destination. Tbe baggage was transported to the latter place, and on tbe night of that day was destroyed by fire.

Prior to the fire, and on its arrival at Suspension Bridge, tbe baggage was taken into the possession of the-eustoms officers of the United States, pursuant to the statute and regulations of that government relating to customs, and remained in tbe possession and custody of those officers in the room appropriated to such purpose at the time of tbe loss by fire, which destroyed the building in which the baggage then was. The property was not in the possession or under tbe control of the defendant at the time of the loss, nor was it in any sense the fault of the defendant that it was not so. On the arrival from Canada into the State of New York it was tafeen into tbe possession of such customs officers, as was usual, and required by the Customs and Navigation Laws of the United States and the regulations 'adopted by the Secretary of tbe Treasury pursuant to such laws. Tbe defendant, therefore, is not liable as a common carrier for tbe loss, unless it may, for some cause, be attributable to its negligence. It is not claimed that the fire was chargeable to any fault on its part. Tbe depot building to which the baggage was transferred, and in which was the customs room, was the property of tbe New York Central and Hudson River Railroad Company, upon whose railroad the defendant had the right of trackage.

It is, however, urged by the plaintiffs’'counsel that the defendant became liable by reason of its failure to observe the directions of the plaintiffs to take the baggage from the train at the intermediate station known as London,, where they stopped off over night. When they purchased their tickets at Blytlie, the plaintiffs intended to stop over night at London and go forward the next day to Suspension Bridge, which they were permitted to do. They testified, and the referee, on the reqnests made on their behalf respectively, found that they told the defendant’s agent at Blythe to check the baggage to London, which he failed to do, but checked it through to Suspension Bridge, and that on their arrival at London they requested the defendant’s agents and employees to take their baggage from the train, which was refused. The agent at Blythe did not promise or consent to check the baggage to London, but checked it to the place of destination of the plaintiffs, as represented by their passage tickets. This was in accordance with the rule of the defendant, which provided that “ baggagemen must see passengers’ tickets before checking baggage, and baggage must only be checked to the place for which a passenger holds a ticket.” As checks on baggage indicate its destination on a train, such baggage cannot, as a matter of practice, with propriety or prudence, be taken off by the employees of the railroad company and left at an intermediate station without special directions from such railroad company to that effect. When baggage has reached its place of destination, as indicated by the checks upon it, the company is at liberty to assume that the person presenting the duplicates of the checks upon such baggage is the owner of the property, and the delivery to him is justified; but a different question might arise if a person, having clandestinely obtained possession of the checks from the owner, should be permitted to take the baggage at an intermediate place or station; the rule before mentioned was a reasonable one. While the plaintiffs may not have known of its existence, they understood that the agent at Blythe did not consent to check their baggage to. any place other than Suspension Bridge, and the fact that it was checked to. that place furnished some reason for them to apprehend that they would be unable to have it taken off the train at London. The contract was to carry the plaintiffs and transport their baggage to Suspension Bridge. They had permission to stop over night at London and resume their passage the next day. This interruption permitted, in their passage upon the tickets did not necessarily include the baggage.

It is true that a person seeking carriage for his property has the right to prescribe the route and the manner of its transportation when more than one route and different means are open to the common carrier, and that for the consequences resulting from a failure to observe such direction the carrier is responsible. (Goodrich v. Thompson, 44 N. Y. 324; Isaacson v. N. Y. C. & H. R. R. R. Co., 94 id. 278.) But that' proposition has no essential application to the situation in the present case. The plaintiffs desired to have the baggage taken by the route on which it was transported, and the right to have it so done was derived from the contracts as represented by their tickets for a continuous passage to the place of destination. It is not seen that the mere privilege extrinsic the contracts which permitted the passengers to stop off over night at an intermediate-station, and resume .their passage the next day, afforded to them the right to -require the company to-unload and reload their baggage at such station. Our attention is called to Pittsburgh, C. & St. L. Ry. Co. v. Lyon (123 Penn. St. 140). There the company refused to sell to the defendant in error a passage ticket to Birmingham station, in the city of Pittsburgh, where the train uniformly stojDped for passengers to alight, and he was required to take a ticket for the station further on, which was known as the Union depot within the city. The company’s agent also declined to check his baggage to Birmingham station, and checked it to the destination mentioned in the passage ticket. ■ The court very properly held that the rule of the company, requiring its agents to refuse to sell tickets and check baggage to the intermediate station, was unreasonable, The doctrine of that case would have been applicable-to the present one, if the defendant had declined to sell to the plaintiffs passage tickets to London. This the defendant was neither requested, nor refused, to do. That case, therefore, does not seem to have any necessary application to the one at bar.

The action, however, is not founded upon any alleged default in not yielding to the request of the plaintiffs to permit their baggage to lay over at London until the following day. They by their complaints allege that the defendant received the baggage at Blythe, Canada, to be carried from there to Suspension Bridge, in the State of New York, and that by the negligence and improper conduct of the defendant the baggage was lost.' The question that the plaintiffs must rely upon the causes of action as alleged was raised at the trial by the defendant’s counsel. No motions were made for leave to-amend the complaints. It is now urged that the complaints may on this review be amended so as to conform the pleadings to the proofs. This might be done if it appeared that the parties had consented tO' try and have the actions determined upon an issue not within that alleged in the pleadings. But that, as has been observed, is not the-situation. In support of a judgment the court may on review treat pleadings as though they had been amended so as to conform to the facts found, when it can be done without overruling an exception well taken upon the question of variance between the pleadings and proofs. (Pratt v. H. R. R. R. Co., 21 N. Y. 305.) But that rule does not apply with the same force to create error and for the purpose of reversal of a judgment. The cited case of Hudson v. Swan (7 Abb. N. C. 324) was reversed. (83 N. Y. 552.)

The referee in his determination of the cases treated the actions a» founded upon the causes of action alleged in the complaints. And there was no error in his conclusion that they were not sustained b~ the evidence.

The judgments should be affirmed.

Lewis, "Ward and Adams, JJ., concurred.

J udgments affirmed.


author: Bradley, J.: Lewis, J.

text:
    Isaac E. Dean, as President of the Ontario Improvement and Gas Company (Limited), Appellant, v. William H. Gilbert and Other, Respondents.

      Corporation — suing in the name of its president — amendment striking out of the title the-name of the president and tearing that of the corporation— Code of Civil Procedure, §§ 723, 1919.
    Where a-cause of action existing in favor of a corporation is sued upon in the name of its president, the court has power to amend the summons and complaint by striking from the title of the action the name of the president, leaving the name of the corporation to stand as that of the plaintiff in the action,
    Lewis," J., dissenting.

      Appeal by the plaintiff, Isaac E. Dean, as President of the Ontario Improvement and Gas Company (Limited), from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Chautauqua on the 6th day of May, 1895, denying the plaintiff’s motion to amend the complaint by striking, from the title the words “ Isaac E. Dean, as President of,” so that the name of the plaintiff would appear as “the Ontario Improvement and Gas Company (Limited).”

      Walter L. Sessions, for the appellant.

      Bootey, Fowler <& Weeks, for the respondents.
   Bradley, J.:

By the complaint it is alleged that the plaintiff is an association, organized under the laws of the State of New York, doing business, etc. The Ontario Improvement and Gas Company, Limited, is a ■corporation, and as such it is the party in favor of which the alleged right of action exists. The motion to amend the complaint was denied, upon the ground of want of power to grant it. And in support of the order are cited Davis v. The Mayor, etc. (14 N. Y. 506); Bassett v. Fish (75 id. 303); The N. Y. S. M. P. Assn. v. Remington Agricultural Works (89 id. 22).

The view here taken is that the rule applied in those cases does not necessarily require the disposition made of the motion in the present case. In the Paris case the party plaintiff, introduced by the amendment, was entirely distinct from, and had no apparent relation to, the original plaintiffs. And that case was determined by the court upon another ground, which was that the resolution or ordinance of the common council of the city, upon which the alleged ■cause of action was founded, was void.

In the Bassett case the amendment to the complaint, which was improperly allowed, substituted the name of a corporation for the names of individuals who were originally the parties defendant, and the reason there given for the conclusion that the amendment could not be sustained, was that the court had no “ jurisdiction of the person of the corporation. It has not been brought into court.” And the same may be said of the N. Y. S. Milk P. Assn. case. There the purpose of the amendment sought and denied was to strike out the name of the defendant, a corporation, and insert the names of individuals as defendants.

In the present case the action is apparently brought for the benefit of the Ontario Improvement and Gas Company, Limited, which is described as an association organized pursuant to the statute. It seems to have been erroneously described in the complaint as an association, as it is a corporation. The allowance of the amendment sought could be treated as a correction of the name of the plaintiff, rather than the substitution of an entirely distinct and different party from that named and referred to in the allegations of the complaint. Besides the purpose of the amendment is not to make any change in the defendants. It is simply to continue the action against them in the name of the plaintiff corporation as a party beneficially interested, and in the complaint described as an association. There seems to be no apparent reason why it is not in the power of the court to permit such an amendment. (Code Civ. Proc. §. 723; Risley v. Wightman, 13 Hun, 163; Tighe v. Pope, 16 id. 180: Matter of Soule, 46 id. 661; Heckemann v. Young, 18 Abb. N. C. 196.)

In Evoy v. The Expressmen's Aid Society (51 N. Y. St. Repr. 38; 21 N. Y. Supp. 641) the court in this judicial department held that an amendment to the summons and complaint was properly allowed which permitted the names of the persons constituting a voluntary association to be substituted for the original defendant, a supposed corporation. The court there remarked that the action appeared to have been brought against the right body of persons, but under the wrong name. It is true that the order in that case directed service'upon the persons substituted as defendants by the amendment. But this did not qualify the rule of amendability applied by the court in that case.

In the one at bar the amendment sought relates to the plaintiff. The defendants remain the same. It is not seen that they could be surprised to their prejudice by the allowance of an amendment which treats the party apparently beneficially interested as jfiaintiff in the action as a corporation rather than as an association organized pursuant to the statute. And, therefore, it was within the power of the court to grant the amendment. The order appealed from should be reversed and plaintiff’s motion granted on payment to the defendants of ten dollars costs, and without costs of this appeal to either party.

Ward and. Adams, JJ\, concurred.

Lewis, J.

(dissenting):

This action was brought by Isaac E. Dean as president of the Ontario Improvement and Gas Company, Limited.

It is alleged in the complaint that the plaintiff is an association organized under the laws of the State of New York, and that Isaac E. Dean is its president, and brings this action as such, for the benefit of said plaintiff association.

The action was upon an account for goods sold to the defendants, as co-partners. The defendants, by their answer, denied the sale .and delivery of the goods to them by the plaintiff, and further denied that the plaintiff was an association organized under the laws of the State of New York; and alleged that the plaintiff had not legal capacity to sue or maintain an action as president of the Ontario Improvement and Gas'Oompany, Limited, for the benefit of said company, for the reason that said company was not an unincorporated association consisting of seven or more persons. It appearing upon the trial of the action that the Ontario Improvement and Gas Company, Limited, was not an unincorporated association, but that it was a corporation incorporated under the laws of the State of New York, the trial court held that the plaintiff could not maintain the action. By permission of the court, the plaintiff withdrew a juror, and thereupon applied to the Special Term for an order substituting in the place and stead of the plaintiff a corporation by the name of “ the Ontario Improvement and Gas Company, Limited.” The motion was denied, and the plaintiff appealed.

While a joint stock company or association and a corporation may have some attributes alike, there is an inherent difference between them. The' former is an association of individuals who have united their interests in a joint business. Usually, as a matter of convenience, a name is chosen under wliich to carry on the business. Such associations, in their main features, are simply partnerships. The individual rights and liabilities of the members or associates are néither lost nor merged in the associations. Certain rights and privileges have been conferred upon such associations by statute, and obligations have been in like manner imposed upon them. "When composed of seven or more persons, actions in their behalf may be maintained in the name of the president or treasurer. (Code Civ. Proc. § 1919.)

Actions by corporations are maintained in their corporate names, and not in the names of their presidents or treasurers. The identity of the stockholders is merged in the corporation.

There does not seem to be any more propriety in substituting a corporation in the place of the plaintiff than there would be in substituting one corporation for another.

Had this been a case of misnomer of the plaintiff simply, there would have been no difficulty in the way of the court granting the plaintiff’s application. That is what was held in the case of Bank of Havana v. Magee (20 N. Y. 355). There the cause of action belonged to Charles Cook, a private banker; the action was commenced in the name of the Bank of Havana; that was the name Mr. Cook had assumed under which to carry on his banking business. It was held that an order permitting the substitution of Mr. Cook’s real name in place of the assumed business name was properly allowed. Had it appeared that the Bank of Havana ” was a corporation and owned the claim, and the action had been brought in the name of Charles Cook, a different question would have been presented. It has been frequently held that the addition of the word executor ” or te administrator ” to the name of the plaintiff was immaterial, the addition being merely a description of the person. The question of the right of the plaintiff to maintain the action was properly raised by the defendants’ answer. The cases of Davis v. The Mayor, etc. (14 N. Y. 506-526), and Bassett v. Fish et al. (75 id. 303), are authorities sustaining the Special Term order.

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

Order reversed and motion granted on payment to the defendants of ten dollars costs, and without costs of this appeal to either party.


text:
    Jacob Snyder and Others, Respondents, v. Carmi V. Lindsey, Appellant, Impleaded with Others.

      Joint stock association— a member may sue for the dissolution thereof — he may show that money paid for the stock was a loan to the association — general objection to evidence competent as to one of several defendants— Oode of Civil Procedure, % 1786.
    One or more members of a joint stock association may institute an action for its dissolution whenever a suitable occasion arises rendering it legitimately desirable to wind up its affairs, and the right to bring such an action is not confined to the Attorney-General as is the case where it is sought to dissolve a corporation.
    Where an action is brought against two defendants and evidence is offered which is competent against one of them, a general objection to its competency, taken on behalf of both defendants, does not raise the question that the evidence was incompetent as against one of them.
    Where a person becomes a member of a j oint stock association and receives shares of stock therein, amounting in par value to the amount of money invested by him, he may, on the trial of an action brought to impeach the validity of a chattel mortgage executed to him by the president of such association, as security for such money, show the terms upon which such money was invested; that he occupied a different relation toward the association from that occupied by the other members thereof; that he was, in fact, a creditor of such association, and that the mortgage sought to be impeached was executed in pursuance of the agreement under which he advanced the money and became a member.
    Appeal by the defendant, Carmi V. Lindsey, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of "Wyoming on the 16th day of January, 1895, upon the report of a referee.
    The plaintiffs and the defendants, other than the defendant Evans, being about eighty, more or less, in number, were what was called a joint stock association, doing business under the name of the Farmers’ Exchange, Limited, at Attica, in the county of "Wyoming, N. Y.
    The association w'as organized in 1891 for the purpose of carrying on a general mercantile business, adopted a constitution and„by-laws, elected a president, vice-president, secretary and a manager and treasurer; also directors and an executive committee, and issued stock certificates at ten dollars per share. The business of the company was carried on until November 11, 1893, when the president, Carmi Y. Lindsey, made, in the name of the company, a chattel mortgage on the goods of the association to Grant Lindsey, who delivered to the defendant Evans a bill.of sale of them. The latter afterwards sold the goods to the appellant.
    This action was brought for the dissolution of the company, etc. referee determined that such mortgage and bill of sale were fraudulent and void, and directed judgment dissolving the association and for the appointment of a receiver, etc.

      O. II Hop>7cins, for the appellant.

      O. P. StooJcwell, for the respondents.
   Bradley, J.:

It is urged on the part of the appellant that the joint stock association created by the parties plaintiff and defendant has the nature of a corporation, and is a corporation in such sense that the remedy available to members of a partnership to bring suit for its dissolution has no application to it, and, therefore, that an action for the dissolution of the association can be maintained only by the Attorney-General in the name of the People, as provided by the statute relating to corporations. (Code Civ. Proc. § 1786.) The question was raised at the trial, and, as we think, was properly overruled. It is true that- in this State a joint stock association has certain attributes of a corporation for the purposes of the conduct' of its business, and of suing and being sued. (Laws of 1819, chap. 258; Laws of 1853, chap. 153; Laws of-1854:, chap. 245; Laws of 1867, chap. 289.) But, unlike a corporation, the common-law liability of its. members upon the obligations legitimately created or assumed through the acts of the officers or agents of the association remains. (People ex rel. Winchester v. Coleman, 133 N. Y. 279.)

The nature of a joint stock association was the subject of some consideration in People ex rel. Platt v. Wemple (117 N. Y. 136) Avhere it was held that the United States Express Company, a joint stock company, was subject to taxation as such upon its business, pursuant to the Laws of 1880 (Chap. 542), as amended by the La>vs of 1881 (Chap. 361, § 3), which last cited section provides that every corporation, joint stock company or association, incorporated or organized under any law of this State or any other State or country, and doing business in this State, with certain exceptions, should be subject to and'pay a tax upon its corporate franchise or business into the treasury of the State annually.

The character of the association formed by the parties to this rests on the contract into which they entered and which they adopted for its creation, and their individuality in point of personal liability to creditors remains as effectually as if they had created a partnership. No substantial reason, therefore, exists in the nature of the associatioif for the denial of the right to one or more of its members to institute an action for its dissolution whenever a suitable occasion arises rendering it legitimately desirable to wind-up its affairs.

In November, 1893, the appellant, as president of the association,made to Grant Lindsey a chattel mortgage upon all of the goods of the association, for the purpose, as expressed in it, of securing to him the payment, on January 14,1894, of $1,500, being the amount alleged to have been loaned by him to the association, and giving to the mortgagee power, if he deemed himself unsafe, to take, before that time, the possession of and sell the property. Afterwards, on the same day, the mortgagee took possession of the property, and, by a bill of sale, sold it to the defendant James D. Evans. This bill of sale was made without consideration other than the undertaking of Evans to proceed to sell the goods and account to his vendor for the proceeds, and such was its purpose.

Subsequently, and on or about the sixteenth day of November, an attachment in behalf of a creditor of the association was levied on the goods, and thereupon an arrangement was made by Evans with the appellant, in pursuance of which the appellant was to pay the debt due to the attaching creditor, which, with the costs and expenses, amounted to $669, and take title to the property. Evans sold the goods to him. He paid that debt and also paid some other debts which the association owed, which payments were to be applied upon the purchase price of the property.

The leading question on the trial was whether or not the chattel mortgage and those sales were effectual to transfer the title to the goods. The determination of the referee that they were not, was founded upon the fact, as found by him, that the mortgage to Grant Lindsey and the bill of sale by him to Evans were made without consideration and with the unlawful intent to enable Grant and Carmi Y. Lindsey to reimburse themselves for moneys theretofore invested by them in the business, and that such transfers were made without authority.

It may be that the authority relied upon in executing the mortgage was in the proceedings of the board of directors of January 28, 1893, and a power of attorney made in October following.

As evidenced by the record of the proceedings of that meeting of the board of directors, Grant Lindsey and W. A. Cowden were each to invest $1,000, take 100 shares of the stock of the association, and at the end of the year to have the privilege of withdrawing the amount of money so invested by selling goods from the stock in the store at the regular rates. Afterwards Grant Lindsey put in $1,000 and Cowden $500. The latter assigned his stock and claim to Grant Lindsey. The power of attorney above referred to was subscribed by upwards of fifty members of the association, and, among other things, recited and provided that Grant Lindsey had put $1,500' in the business of the company, and that the president was empowered, whenever Grant Lindsey might wish to resign his position as manager, to give him a bill of sale of the goods in the association’s store or to secure him. for such $1,500. This money evidently was furnished to assist the association in the business, and the taking of the stock did not necessarily conclude Lindsey and Cowden from treating the money advanced, as a loan to it, as distinguished from the shares which were represented by certificates to members, if it was put in pursuant to any arrangement duly made to so distinguish the relation arising out of such advance.

It was, therefore, competent for the defendants to prove under what arrangement the money was advanced by Lindsey and Cowden.

A witness, who was one of the directors and who was present at the meeting of the board before mentioned, was asked “ What was done at that time ? * * * What was said at that meeting in regard to what should be done with the money by the company ? ” The plaintiffs’ objections to the evidence called for by those questions were sustained and exceptions taken.

The defendants’ counsel then offered to prove “ that this money was put in by Lindsey and Cowden upon different terms than which the other members put money into the association, and that they were to have the privilege of selling the goods and drawing their money out in that way.” This was also excluded upon the plaintiffs’ objection, and an exception was taken by the defendants. There is no apparent reason for the exclusion of the evidence unless it was on the assumption that the facts embraced within the questions and offer were covered by the record of the proceedings, before referred to, of the board. It may be that in such record the terms under which the money in question was advanced by Lindsey and Cowden are amply expressed. But it does not necessarily so appear by the offer as made of proof, which was to show in some legitimate manner that the money advanced by them was put into the concern upon terms differing from those upon which the other members liad put in money and taken certificates of stock.

If the relation of Lindsey and Cowden to the association in respect to the $1,500 was distinguished from that of the'other members who were stockholders, in that the former loaned money to and were creditors of the association, although stock was issued to them, that might have been treated as an important fact by the referee, and he might not have found, as he did, that the mortgage was in fact executed and delivered without consideration, and.there existed no indebtedness whatever to said Grant Lindsey for money loaned or otherwise.” This finding may have been founded on his view, as expressed in the opinion of the referee, that there was “ no pretense furnished by the evidence in the case that as to these moneys they occupied any other or different relation to the association than their associates. In other words, the moneys invested by them were put in as capital stock and not otherwise.” It is, however, suggested that if there was any error in the exclusion of the evidence so offered it was cured by that given later in the trial by the appellant, that this agreement that I executed to him (Grant Lindsey) was given to him to secure the money he paid under this resolution.” In this, statement the witness evidently had reference to the record of the proceedings before mentioned of the board of directors, and, coming from the appellant, that statement has such force against him as to make it -appear quite clearly that the evidence offered and excluded could have added nothing advantageous to the defense not embraced in such record of proceedings. For that reason the exclusion of the evidence was harmless to him.

Upon the question of the value of the goods there was a conflict in the evidence. They were by schedule inventoried at $1,528.88. The referee found that such was their value. The defendants gave •evidence tending to prove that they were of much less value. A witness called by the plaintiffs’ counsel was asked “ What did Evans say to you in regard to the inventory ? ” The defendants’ objection to the competency of the evidence was overruled and an exception taken. It may be assumed that it was inadmissible as against the appellant. But, as Evans was a party defendant appearing and defending, his declarations were admissible as against himself, and, therefore, tlm general objection of the defendants did not render the exception as taken available to the appellant. The same may be said of another exception taken in like manner to the reception •of the similar evidence of another witness.

The most of the goods had been sold by the appellant when this action was commenced, and the evidence tends to prove that the proceeds of his sales, including the value of the goods unsold, amounted to very much less than the sum at which they were inventoried. The evidence apparently presents a question of very much doubt whether the property was of the value so represented by the inventory, but in view of the conflict in the evidence on the subject it cannot on this review reasonably be held that the value was less than that adopted by the referee upon the facts as found by him and which had the support of evidence.

No further question requires consideration. The judgment should "be affirmed.

Lewis, Ward and Adams, JJ., concurred.

Judgment affirmed, with costs.


text:
    Margaret Walsh, Appellant, v. The City of Buffalo, Respondent.

      Municipal corporation — negligence of — notice to, of intention to sue and of particulars of the claim — construction of the charter of Buffalo — Laws 1886, chap. 572, not repealed by implication by Laws of 1891, chap. 105, §§ 15, 16.
    In determining whether the Legislature intended to supersede or repeal by implication certain provisions' of a statute by a later one, the object to be attained by the statute is to be considered in order to ascertain whether the purpose of the earlier statute is comprehended in the provisions of .the later one upon the same subject.
    The provisions of the general act relating to the bringing of certain actions against municipal corporations, known as chapter 572 of the Laws of 1886, providing for the service upon the law officer of the city of a notice, within six months after the cause of action accrued, of an intention to commence an action for personal injuries alleged to have been sustained by reason of the-negligence of tbe city or of its officers, were not repealed by implication by the provisions in that regard contained in the revised charter of the city of Buffalo passed in 1891 (Chap. 105, §§ 15, 16).
    The two statutes are in prn'i materia, and but one notice of intention to sue is necessary, but this should contain a statement of the time and place at which the injuries were sustained.
    Where it appeared that a person had served upon the corporation counsel a notice of an intention to commence such an action, and the notice referred to a statement of her claim alleged to have been previously filed with the city clerk, a. copy of which it appeared was served upon the corporation counsel upon the same day when the claim was filed with the city clerk, the court considered that the city had received proper notice of the particulars of the claim, and of' the intention to sue upon it, and that there had been a substantial compliance with the requirement of chapter 573 of the Laws of 1886.
    Appeal by the plaintiff, Margaret Walsh, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 20th day of April, 1895, upon the dismissal of the complaint directed by the court after atrial at the Erie Circuit before the court and a jury.

      Perkins dé Welch, for the appellant.

      Frank 0. LaughUn, for the respondent.
   Bradley, J.:

The purpose of this action was to recover damages for personal injury to the plaintiff, alleged to have been occasioned by the negligence of the defendant. Her injury was caused by a fall while walking on a sidewalk of a street in the city of Buffalo on or about February 4, 1894. The facts that the injury sustained by her was attributable to the negligence of the defendant and that she was free from contributory negligence were conceded at the trial. The only question presented there was whether the' plaintiff had filed with the corporation counsel the requisite preliminary notice of intention to commence the action. The city charter provides that “ The Common Council shall audit all claims against the city. -Unliquidated claims shall be filed with the city clerk * * * and if for damages for wrong or injury, when, where and how occasioned, and shall be accompanied by an affidavit that the claim and the items and specifications thereof are in all respects just and correct, and that no payments have been made, and that no set-off exists, except those stated.” (Laws 1891, chap. 105, § 15.)

The plaintiff’s claim upon which this action is founded, made in the form required by the statute and duly verified by her affidavit, was served upon the city clerk of the defendant on April 21, 1894.

The city charter also provides that “ No action or proceeding to recover or enforce any claim against the city shall be brought until the expiration of forty days after the claim shall have been filed with the city clerk for presentation to the common council for audit in the manner and form aforesaid, and no action shall be maintained against the city for personal injury unless notice of intention to commence such action shall have been filed with the corporation counsel within six months after such cause of action shall have accrued. * * * All actions brought against the city to recover damages for personal injuries caused by negligence must be commenced within one year from the time of receiving the injuries.” (Id. § 16.) This chapter 105 of the Laws of 1891 is entitled “ An act to revise the charter of the city of Buffalo.” It contains a provision that “All acts and parts of acts inconsistent with this act are hereby repealed.” (Id. § 501.)

Prior to this act, and in 1886, a general act was passed, entitled “ An act in relation to certain actions against municipal corporations.” It provided that “No action against the mayor, aldermen and commonalty of any city in this state having fifty thousand inhabitants or over for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, or of any department, board, officer, agent or employee of said coiqioration, shall be maintained unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action, and of the time and jfiace at which the injuries were received, shall have been filed with the counsel to the corporation, or other proper law officer thereof, within six months after such cause of action shall have accrued.” (Laws of 1886, chap. 572.) This act was applicable to the city of Buffal (Curry v. City of Buffalo, 135 N. Y. 366.)

At the time of its passage there was no existing statute requiring the service of a preliminary notice of intention to sue the city of Buffalo, but there were provisions substantially the same in other respects as those of sections 15 and 16 of chapter 105 of the Laws of 1891, in the charter as amended by the Laws of 1886 (Chap. 479, § 8), which, with the provisions of the general act before mentioned, constituted the requirement to furnish a statement of claim to the common council and notice of intent to sue to the corporation counsel. Those were the only provisions on the subject, until the passage of the revised charter of 1891, which provided for the filing of both the statement of claim and notice of intention to sue as conditions precedent to the right to maintain an action for damages arising from alleged negligence of the city. The provision there for notice of intention to commence an action does not direct that the notice shall contain a reference to the time and place at which the injuries were received, as does the provision of the general act of 1886. The plaintiff in filing the statement with the city clerk, and the notice of intention with the corporation counsel, evidently proceded upon the direction in the revised charter. The notice was as follows:

“ To the Corporation Counsel, Buffalo, If. TT.:

“Sir — You will please take notice that the undersigned, Margaret Walsh, intends to commence an action against the City of Buffalo to recover damages for personal injuries sustained by her by reason of the facts set forth in a statement of claim filed by the said Margaret Walsh with the city clerk of the City of Buffalo on the 21st day of April, 1894.

“ Dated Buffalo, N. Y„, May 14, 1894.

“Yours, &c.

“MARGARET WALSH,

“ by Perkins and Welch, Tier attorneys!'’

Admission by the corporation counsel of service on May 14,1894, was indorsed on the notice.

In determining whether the legislative intent is to supersede or repeal by implication certain provisions of a statute by a later one, the object to be attained by a statute is to be taken into consideration to ascertain -whether the purpose of the earlier is comprehended within the provisions of the later statute on the same subject.

The design of the statute referred to was to give information to the city of the nature and cause of the injury, and the time and place when and where and how it was occasioned, as well as notice of intention to sue. And one of the purposes of the act of 1886 evidently was to give the information within six months to enable the city authorities at a time as early as that to proceed to investigate the matter of the claim. The requisite preliminary statement, which a claimant is required by the revised charter to file with the city clerk, must set forth all the facts in respect to an injury required to appear in the notice of intention prescribed by the act of 1886. If the revised city charter had required the claimant to file the statement with the city clerk, within six months after the alleged injury, I should have been inclined to the view that it was intended to prescribe the only rule on the subject in that city, and, therefore, that by the provisions of the revised charter, those of chapter 572 of the Laws of 1886 were by implication repealed, so far as applicable to the city of Buffalo. But the difficulty is that the limitation of time within which information is to be given may be important to the city, and the claimant is not required to file the preliminary statement with the city clerk until more than ten months.after the occurrence of the injury complained of. While the provision of the city charter is to the effect merely that a notice of intention to commence the action shall be filed with the corporaiton counsel within six months, that of the act of 1886 also requires that the notice give the further information before mentioned. The two statutes, therefore, seem to be imgari materia, and must be taken together in their application to that city. The notice called for by the act of 1886 embraces all that is requisite to comply with the provision of the later one on the subject, so that only one notice to the corporation counsel is necessary.

It, however, is urged on the part of the plaintiff that she did comply with the statute on the subject of notice by serving on the corporation counsel, not only the notice before mentioned, but also a copy of the statement of claim filed with the city clerk. This, as has been observed, contained a statement of all the facts essential to the notice of intention provided for by chapter 572 of the Laws of 1886. The plaintiff’s counsel offered to prove that on the 21st day of April, 1894, he served upon the corporation counsel a copy of the claim filed with the city clerk, and exception was taken to the exclusion of the evidence. This with the notice served in May following, if they sufficiently advised the corporation counsel of their relation to each other, would furnish a notice to him of all the facts essential to a notice of intention to sue and together would seem to have been sufficient. The substance, and not the form merely, should control the effect. There would be less doubt about it if the notice served had expressly referred to the statement of claim which had been served upon him. But in its terms reference was made to that filed with the city clerk on April 21, 1894. This, it would seem by relation, called the attention of the corporation counsel to the statement of claim which was served on him that day, if it was a.copy of that then filed.

The purpose of the statute on the subject of notice, etc., was not intended to deny remedy to persons, or to embarrass them in seeking it, for injuries suffered by the negligence of municipal corporations, but to guard the latter so far as practicable against imposition by making early preliminary notice and information essential, thus enabling the city authorities then, with more facility than at a later day, to inquire into the merits of asserted claims.

Although the question may not be entirely free from doubt, I am inclined to think that the exclusion of the evidence so offered was error and for that reason the judgment should be reversed and a new trial granted, costs to abide the event.

Lewis, Ward and Adams, JJ., concurred.

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


author: Bradley, J. :

text:
    Charles S. Whitcomb, Respondent, v. Flynn Whitcomb, as Executor, etc., of Samuel Whitcomb, Deceased, Appellant. Ida S. Whitcomb, Respondent, v. Same, Appellant.

      Contracts — promise by a grandfather to provide by will for his grandchild — primty between the mother (the promisee) and the child — effect of the recovery of a judgment for alimony after a promise to malee no further demands upon a husband— costs on a reference of a disputed claim.

    Upon the trial of a reference of a disputed claim against the estate of one Samuel Whitcomb, it appeared that the plaintiff was a child of Truman H. Whitcomb and Eleanor J. Whitcomb, and that Samuel Whitcomb was his grandfather; that an agreement was entered into between these three persons by which Samuel Whitcomb agreed to pay to the grandchild a certain sum of money by a provision in his will, and Eleanor J. Whitcomb, who at this time had begun an action for a divorce, agreed on her part to prosecute such action, and also that if the stipulations of the contract were faithfully carried out she would make no further demands upon her husband. The agreement also provided that she should have the custody of the children of the marriage, and that certain provisions should be made by her husband for her and her children.
    It appeared that she subsequently obtained a divorce and was allowed alimony; that she had not- enforced the judgment for alimony, but she accepted the notes of her husband after the judgment was recovered as payment upon the agreement to make provision for her, and promised that if the notes were paid she would not enforce the judgment for alimony. Samuel Whitcomb made no provision for the plaintiff by his will.

      Meld, that the plaintiff was entitled to enforce against his grandfather’s estate the promise made to his mother, who in receiving the agreement from Whitcomb might be deemed to have acted in behalf of the plaintiff;
    That there was a sufficient privity between the promisee and the plaintiff, the third person, as the promise was made with a view to aid the mother in the support and maintenance of the child;
    That the mother had not by the recovery of the judgment for alimony violated the provision of the agreement, that, if. the agreement was performed, she would make no further demands upon her husband, as it did not follow that because she had recovered such a judgment she must, therefore, enforce it, nor did it appear that she had enforced it;
    That costs against an executor upon the reference of a disputed claim were to be given, under section 3718 of the Code of Civil Procedure, and were wholly dependent upon a certificate of the referee that the payment'of the claim'had been unreasonably resisted or neglected, and that where no such certificate was given no costs could be recovered.
    Appeal by the defendant in each of the above-entitled actions from judgments of the Supreme Court in favor of the respective plaintiffs, entered in the office of the cleric of the county of Monroe on the 24th day of April, 1895, upon the report of a referee.

      George A. Benton, for the appellant.

      W. II. Whiting,• for the respondents.
   Bradley, J. :

The plaintiffs in the two actions were the children of Truman H. Whitcomb and Eleanor J. Whitcomb, his wife, and the defendant’s testator, Samuel Whitcomb, was the grandfather of the plaintiffs. This action was brought upon an agreement in writing entered into in 1879 between Truman IT. Whitcomb of the first part, Eleanor J. Whitcomb of the second part and the defendant’s testator of the third part, whereby the latter agreed at his death to pay or cause to be paid to each of those grandchildren the sum of $1,000, and to provide by his last will and testament for the payment thereof, but in case $2,000 should exceed one-lialf of his estate at the time of his death, one-half only of the amount of his estate should be paid to them. By the agreement it was also provided that Eleanor, the ■wife, should have the custody of the two children, who were minors, and that certain provisions should be made by Truman H. Whit-comb for her and for the children.

The defendant’s testator, by his will, gave nothing to those grandchildren.

It is urged on the part of the defendant that the testator, by his agreement to do so, assumed no legal obligation to make in his will any provision for them because there was no personal liability of the mother to them. She, by the agreement, having the custody of the plaintiffs, then infants, assumed to take care of them, and such agreement of the testator may be deemed to have been one of the considerations for her undertaking. In view of the relation of Mrs. Whitcomb to the children, her duty to them arising from it, and of the fact that she proceeded in its performance on the faith of the provisions of the agreement, the promise of the testator would seem to come within the doctrine of Lawrence v. Fox (20 N. Y. 268) and kindred cases.

This is not inconsistent with the legal proposition that a promise to pay an existing obligation of another is not effectual to charge tlie promisor where there is no liability of the promisee to pay it, and the persons entitled to receive its payment and liable to pay it are strangers to the promise. (Vrooman v. Turner, 69 N. Y. 280.) In such case there is no privity between the promisee and the person who is entitled to the payment of the obligation. The support of a promise made by one person to another for the benefit of a third person requires no privity between the promisor and him for whose benefit it is made, but between the latter and the promisee privity is essential in so far that some duty is owing by the promisee to the, pei’son to he benefited by the promise or some reciprocal duties are undertaken or assumed by them in respect to which the promise may have some beneficial relation. Such as before suggested was the relation between the mother and the plaintiffs, and in taking the agreement of tlie defendant’s testator she may be deemed to have acted in their behalf. As the promise was made with a view to aid in the support and maintenance of those children, it was within reasonable contemplation that the mother might be entitled to reimbursement from the fund for supplying the means necessary for such purpose. (Matter of Bostwick, 4 Johns. Ch. 100; Wilkes v. Rogers, 6 Johns. 566; Voessing v. Voessing, 4 Redf. 360; Matter of Ogg, 1 Connoly, 10.)

The promise of the defendant’s testator was not only made for the benefit of the plaintiffs, but was one to pay them respectively the specified amounts in the manner mentioned. It was founded upon a good consideration. By his' default a right of action accrued to each of the plaintiffs, and they were entitled to recover unless some further reason appears to defeat the actions. (Todd v. Weber, 95 N. Y. 181; Rector, etc., v. Teed, 120 id. 583.)

It is contended by the learned counsel for the defendant that the plaintiffs were denied the right of action on the promise by the failure of the mother to observe and perform the provisions of the agreement in that she agreed to proceed with the prosecution of the action then pending for a divorce, and that if the stipulations of the contract were faithfully carried out she would make no further demands upon Truman. H. Whitcomb. It is true that the agreement contained those provisions. An action brought by her for divorce was then pending, and it was contemplated that she would proceed to judgment. She did this by a new action commenced for such purj>ose, in which were alleged further facts in its support. This substantially accomplished the object which the parties had in view by that provision of the contract. But because she took by that judgment direction for payment by Truman H. Whitcomb of a certain sum for alimony it is urged that she violated the provision not to make further demands upon him. The recovery itself had no significance contrary to that provision because she was not required to make it available, and it cannot be assumed that she would if he faithfully performed what he undertook by the contract. Nor did she use the judgment to defeat the effect of any provision of the agreement, but after its recovery shé accepted from bim his notes for certain amounts in discharge of his further obligation upon the contract, and undertook in case they were paid not to enforce such direction in the judgment so recovered against him. This precautionary provision of the judgment and the consequence of it, therefore, constituted no substantial violation on the part of Mrs. Whitcomb of the contract. No opportunity on that account was furnished to the defendant’s testator to assert relief from his promise in question. Nor does any other reason appear to relieve him from liability upon it.

The final conclusion of law in the referee’s report was the direction of judgment against the defendant, with costs; exception was filed to the award of costs.

Upon the entry of the order of reference the proceedings became actions in the Supreme Court, and the determination of the question of costs is governed by the provisions of the statute relating to costs in an action brought in such court against executors or admintrators in their representative capacity in which recovery is had against them. (Code Civ. Proc. § 2718.)

The plaintiffs’ right to recover costs against the defendant was dependent upon a certificate of the referee that the payment of the claims was unreasonably resisted or neglected. (Id. §§ 1835, 1836.) No such certificate was made, and, therefore, no right to recover costs appears. (Matson v. Abbey, 141 N. Y. 179.)

We- think, nevertheless, that the plaintiffs should be allowed to recover their disbursements.

The judgments should be modified by striking out the award of costs and inserting the amount of disbursements as such, and as so modified the judgments should be affirmed, with costs of one of these appeals payable out of the estate.

Lewis and Ward, JJ., concurred.

In the first above-entitled action judgment modified by striking out the award of costs, and inserting the amount of disbursements as such, and as so modified affirmed, with costs of the appeal payable out of the estate. .

In the second above-entitled action judgment modified by striking out the award of costs, and inserting the amount of disbursements as such, and as so modified affirmed, without costs of this appeal.


author: Adams, J\ :

text:
    George H. Humphrey, as Executor, etc., of Martha R. Cowley, Deceased, Appellant, v. M. Leonora Sweeting and John B. Sweeting, Respondents.
    JPm'eclosure— evidence — husband, of mortgagor not incompetent within Gode of Givil Procedure, § 829 — payment.

    Where the husband of a mortgagor is made a party defendant to an action of foreclosure, his interest in the result of the action is not such as to preclude him from testifying to conversations and transactions had by him with the deceased assignee of the mortgage.
    Evidence deemed sufficient to prove that a bond and mortgage have been paid and satisfied.
    Appeal by the plaintiff, George H. Humphrey, as executor, etc., of Martha R. Cowley, deceased, from a judgment of the County Court of Monroe county, entered in the office of the clerk of the county of Monroe on the 24th. day of December, 1895, upon the decision of the court rendered after a trial of specific questions of fact before the court and a jury.

      F. B. Frailee, for the appellant.

      W. W. Armstrong, for the respondents.
   Adams, J\ :

This action was brought to foreclose a mortgage executed by the defendant M. Leonora Sweeting, who was then unmarried, to one Holmes, and subsequently assigned to the testatrix. The defense was payment, to sustain which the defendants introduced in evidence the written assignment of the mortgage in suit and the bond accompanying the same, to the testatrix, who was the mother of the defendant M. Leonora Sweeting, upon which assignment appear five indorsements, viz. :

May 31, 1886.

“ Rec’d $300.00 on this Bond

“ Rec’d $220.00 for building Barn on this Bond

“ Credit $260.00 on this Bond Leonora lent Father

“ Rec’d $100.00 in Bank

Paid in full

“MARTHA R. COWLEY.”

Upon the trial it would seem from the record that an issue was raised as to the genuineness of the testatrix’s signature, and also of the handwriting of the several indorsements, but the case has been settled in such a manner as to indicate that, for the purpose of this appeal, that issue has been abandoned, and the only evidence retained, which bears upon this question, sufficiently establishes the fact that all the indorsements mentioned are in the handwriting of Mrs. Cowley. This being the situation, the principal question presented for our consideration is whether or not the evidence in the case will sustain the verdict of the jury and the finding of the court that the bond and mortgage in suit have been paid. It is to be noted in this connection that, after the verdict of the jury had been rendered, by which they find that the bond and mortgage have been paid in full, no motion for a new trial was made by the plaintiff. This omission indicates that counsel was not only content with the conclusion reached by the jury, but that he placed no reliance upon any exceptions taken during that stage of the trial. At all events, the verdict of tbe jury and the charge which preceded it are of little importance, provided the fact subsequently found by the court is sustained by the evidence. (F. N. Bank v. Dean, 137 N. Y. 110-116.)

Right here it becomes important to bear in mind that this fact is not necessarily that the debt or any part of it has been released, but that it has been in some manner liquidated or extinguished, and in this aspect of the case it is a matter of minor consideration whether or not the learned trial judge was correct in his instructions to the jury upon the law of the case, so far as the question of an executed or completed gift is concerned.

Upon a careful reading of the evidence, which appears to be practically ex parte, we are of the opinion that it is sufficient to raise the presumption of payment, which, in the absence of any evidence to repel such presumption, is in turn sufficient to uphold the judgment. It appears by the record that the first payment of $300 and the last one of $100 stand unchallenged, and they must be regarded as conceded facts. The indorsement of $260 represents the amount of a note made by the testatrix’s husband, which was held by Leonora, and which she destroyed at about the time the indorsement was made. Surely there is nothing extreme in the presumption that some consideration passed to the mortgagee from her husband which induced her to apply the amount of this note in part payment of her mortgage, and that it was the knowledge.of the existence of' some such arrangement between her father and mother which induced the defendant to destroy the only evidence she possessed of the former’s indebtedness to her. As to the remaining indorsements, the evidence is even more satisfactory. It appears that Leonora had built a barn upon her mother’s premises at a cost of $220, and had made some repairs to the “brick house” belonging to her at an expenditure of $123, and this last-named sum was a few dollars more than sufficient to pay what remained of the principal sum secured by the mortgage after applying the. payments represented by the preceding indorsements. Thus is established direct proof of actual and adequate consideration for these two indorsements, and this evidence is materially strengthened by other facts in the case, namely, the statement made by Mrs. Cowley to the defendant’s husband that ' the mortgage was paid and discharged, and a like statement to the town assessors, in consequence of which the assessment therefor was stricken from the roll. To these must be added,, and considered in •connection therewith, the indorsements themselves, to which, inas'mucli as they are in the mortgagee’s own hand, some weight ought ■certainly to attach.

The only other point discussed upon the argument arises upon the admission of the evidence of the defendant’s husband, the contention being that it was incompetent under section 829 of the Code of Civil Procedure. Of this it is sufficient to say that John B. Sweeting, although a party defendant, was not necessarily so, and his interest in the event of the action was not such as to preclude his giving testimony in the defendant’s behalf. (Fogal v. Page, 13 N. Y. Supp. 656; Matter of Clark, 40 Hun, 233; Whitman v. Foley, 125 N. Y. 651.)

The result of the views hero expressed is that the judgment .-appealed from should be affirmed.

Lewis, Bradley and Ward, JJ., concurred.

Judgment affirmed, with costs.


author: AdaMS, J.:

text:
    Mary E. Daniels, Respondent, v. The Empire State Savings Bank of Buffalo, Appellant.

      Warnings bank— liability of, for a deposit abstracted by the treasurer — effect of intrusting the bank manager with a blank check.

    In an action brought to compel the defendant, a savings hank, to credit the plaintiff with a deposit of §10,075, the defendant sought to charge the plaintiff with a check of §4,000. It appeared that the plaintiff had dealt with the defendant from 1868 to 1893; that during this period Edward S. Dann was its secretary and treasurer and general financial manager; that in 1875, while the plaintiff was unmarried, she went to Europe and left with Dann some blank checks signed by her -which were to be filled out by him during the period of her -absence as she should from time to time direct; that she returned to this country in 1876; that thereafter, in April, 1879, without authority, Dann filled ■out one of these blank checks for $4,000, which was not charged to her upon her pass book, never went through the bank and was never paid, and presumably was used by Dann to cover up his fraudulent transactions with the bank; that after the marriage of the plaintiff, and on June 17,1893, her husband deposited for her $10,075, which was not entered in her pass book at the time, but was received by Dann and put by him in the bank vault in a package.
    On June 20, 1892, the State bank examiners discovered that Dann was a defaulter, and soon after the discovery was made the bank vault was opened, and it was then found that the package had been appropriated and in its place was substituted a slip in Dann’s handwriting, stating that $10,075 belonged to the plaintiff; subsequently, upon a threat of criminal prosecution, he restored to the bank the sum of §10,000.

      Held, that the bank was properly charged with the deposit;
    That the plaintiff .should not be charged by the bank with the §4,000 check simply because she had intrusted Dann, the general manager of the bank, with a check signed by her but not filled out;
    That the knowledge of Dann was the knowledge of the bank, and that Dann knew of the plaintiff’s return from Europe to this State, of her marriage, and that his agency had been revoked at the time when he filled out the check, and the bank was, therefore, chargeable with knowledge of those facts;
    That the rule that where one of two persons must lose, that one should lose who made the loss possible, did not apply to this case.
    Appeal by the defendant, The Empire State Savings Bank of Buffalo, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 14th day of June, 1895, upon the decision of the court rendered after a trial at the Erie Special Term.
    The defendant is a savings bank, organized and existing under the laws of this State, and carrying on the ordinary business of a savings bank at the city of Buffalo. Prior to September, 1892, it transacted business under the name of the National Savings Bank of Buffalo. From the year 1868 until the commencement of this action the plaintiff had been a depositor in, and had large financial transactions with, the bank. During all that time, and up to the latter part of June, 1892, one Edward S. Dann was the secretary and treasurer and the general financial manager of the bank. IJpon the 17th day of June, 1892, the plaintiff’s husband took the sum of $10,075 in currency, which had that morning been paid in upon a mortgage, to the bank and left it with Mr. Dann. He did not have his wife’s pass book with him at the time of leaving the money, and it appears that Mr. Dann, after counting the same, made a package of it and placed it in the bank vault instead of mingling it with the other funds of the bank. Upon the following Monday, the twentieth of June, the State bank examiners having instituted an examination of the bank, discovered that Dann had been for many years appropriating the moneys of the bank, and that, to a considerable extent, he had used the plaintiff’s'account to conceal his fraudulent transactions. Soon after the discovery was made the bank vault was opened, and it was then found that the money left by the plaintiff’s husband the Friday previous had been appropriated, and in its place was substituted a slip in Dann’s handwriting which read as follows:
    “ June 17, 1892. $10,075.00 belongs to Mary E. Daniels, paid in for mortgage, per Judge Daniels.”
    After the defalcation of Dann was discovered, and criminal prosecution had been threatened, he restored $10,000 of the money abstracted by him. Upon further examination of the affairs of the bank a check was discovered which bore the signature of the plaintiff, and was dated the 16th day of April, 1879, for the sum of $4,000. This check had not been charged against the plaintiff upon her pass book, although a lead pencil entry thereof had been made under the date of April 16, 1879, by Mr. Dann.
    This action was brought for the purpose, among other things, of compelling the defendant to credit the plaintiff with the sum of $10,075 as a deposit of that amount, and the defendant, on the other hand, sought to charge the plaintiff with the $4,000 check. The trial court found that the $10,075 was left by the plaintiff’s husband at the bank by way of deposit, and that the bank should be charged with the same, and it also refused to charge the plaintiff With the $4,000 check.

      Charles Da/niels, for the respondent.

      George A. Lewis, for the appellant.
   AdaMS, J.:

The evidence furnished by the plaintiff upon the trial of this action abundantly justified the conclusion reached by the learned trial court in regard to the transaction of June 17, 1892. No exception has been taken to such conclusion, and, therefore, so far as that feature of the case is concerned, it is entitled to no further consideration.

The main contention upon the argument, and the only one which the appellant is entitled to urge upon the attention of this court, relates to the $4,000 check. It appears that, in 1815, the plaintiff, whose name was then Mary E. Enos, went to Europe for the purpose of spending a year in travel; that prior to her departure she left one or more checks, signed by her in blank, with Mr. Dann, with instructions to use them in accordance with directions which he might thereafter receive from her, and the check in question was undoubtedly one which had been so left by her with Dann. He had subsequently tilled it up and dated it as of April 16, 1879, although prior to that time she had returned from Europe and married her present husband, Judge Charles Daniels. There is no evidence that the check was ever paid or that it had ever gone through the bank, and the reasonable inference to be drawn is, that it was used from time to time by Mr. Dann to cover some of his fraudulent transactions with the bank.

Upon this state of facts it is difficult to discover upon what theory it can be claimed that the learned trial, court erred in its refusal to charge the plaintiff with the amount of this check. The learned counsel for the appellant advanced † several propositions upon the argument in support of his contention, none of which we think is tenable, and the whole ground is so completely covered -by the elabo' rate opinion of the learned trial justice that but little need be added to what is there so well said.

Considerable stress now appears to be laid upon the fact that the check in question was in no way altered by Dann, and that in tilling it up as he did, he was acting within the scope of his authority as the plaintiff’s agent. The obvious answer to this contention, however, is that the agency conferred upon Dann by the plaintiff was for a particular -purpose and to cover only such time as she should be absent from the country, and it undoubtedly terminated'with her return to America in 1876. Two years thereafter she changed her name from Enos to Daniels. These facts were, of course, all well known to Dann, and his knowledge was the knowledge of the bank (Gibson v. National Park Bank of New York, 98 N. Y. 87), and with this knowledge it is difficult to see anything in this contention upon which the defendant can rest its claim that the plaintiff should be charged with the amount of this check.

Again, it is urged that the bank is entitled to the benefit of this check, upon the principle that when one of two innocent parties must suffer by reason of a fraudulent transaction, it shall be the one whose act made it possible for the fraud to be perpetrated. This principle might be invoked with great propriety if the circumstances of the case were different. In other words, if Dann sustained the relation of a third party simply, and had no connection with the bank. JBut here, confessedly, he was not only the. secretary and treasurer of the bank, but he had the general charge of its affairs, and was in fact himself the bank, and bearing this intimate relation to the bank, it would be a strange perversion of the rule to hold that he might perpetrate a fraud like the one in question, and yet the bank itself be permitted to profit thereby.

"We are unable to discover any error in the disposition made of this case in the court below, and are, therefore, of the opinion that the judgment appealed from should be affirmed.

Lewis, Beadley and AVabd, JJ., concurred.

Judgment affirmed, with costs.


author: Adams, J. :

text:
    Mary A. Dinley, as Administratrix, etc., of Mary Flay, Deceased, Respondent, v. Johnston McCullagh, Appellant.

      Gift inter vims —presumption from the possession of a check and a savings bank book — presumption from the withholding of the check from payment — inter-pleader\ changes an action from one at law to one in equity.

    The mere delivery by a person, since deceased, to another of a check upon a. savings bank, and of the bank book issued to her by the savings bank, is not enough of itself to constitute a gift of the deposit inter vivos.

    There must be proof of an intention upon the part of the donor tcpart absolutely with the property, and such an intention must have been consummated by an actual delivery to the donee.
    Any presumption arising from the possession of a check that it was given for a valuable consideration will be repelled by very slight circumstances.
    Where a check is made by an intestate a month before, and is not presented for payment by the holder until several months after her death, the court is j ustifled in concluding that the check was not received by the holder for a valuable consideration nor in the usual course of business.
    Where an action is begun at law and the defendant interpleads an adverse claimant and pays the money in suit into court, the action becomes thereafter one in equity and neither party can demand a jury trial as a matter of right.

      Appeal by tlie defendant, Johnston McCullagh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 5th day of June, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the Fifth. day of June, 1895, denying the defendant’s, motion for a new trial made upon the minutes.
    This action was originally brought by the plaintiff against the. Erie County Savings Bank, to recover a deposit made by the plaintiff’s intestate in her lifetime. The defendant claiming title to the same deposit, and demanding payment thereof from the bank, the-latter, by interpleader proceedings, obtained an order of the court,, at Special Term, substituting the defendant in its place as defendant in the action, and paid over to the treasurer of Erie county the • moneys in dispute. Thereupon, this defendant, so interpleaded and' substituted, served an answer admitting the formal allegations of the complaint, but asserting title to the moneys in question by virtues-of a delivery to him by the intestate in 'her lifetime of her check for1 the amount thereof, together with her bank book containing heir account with the savings bank.
    Upon the issues thus joined, the cause came on for trial at a Circuit Court in Erie county, held upon the 3d day of June, 1895. After hearing the evidence, the court directed a verdict in favor of the plaintiff, and thereafter the trial justice made and filed findings respecting such trial as though the cause had been tried before him without a jury, and the defendant duly filed exceptions thereto. A motion for a new trial upon the minutes was subsequently made and' denied. Judgment was thereupon entered, and from that judgment, as well as from the order denying the motion for a new trial,, this appeal is taken.

      William O. Fitch, for the appellant.

      Charles F. Tabor, for the respondent.
   Adams, J. :

In considering the questions raised by this appeal, it should' be1 borne in mind that there was nothing irregular in the manner in which: the learned trial justice disposed of this case at the Circuit;,for, although it was originally an action at law, the order interpleading the defendant transformed it into a suit in equity, and consequently neither party wras entitled as a matter of right to a trial by jury. The court might have submitted to the jury, which was impaneled, ■any or all of the traversed questions of fact, but it was under no obligation to do so, nor to adopt the conclusions of the jury had the case been thus submitted. (Clark v. Mosher, 107 N. Y. 118.) With this suggestion for a guide, it is difficult to discover wherein any •error has been committed which requires a reversal of the judgment and order appealed from.

The action appears to have been tried upon the theory that the check and bank book, which were found in the defendant’s possession after the death of the intestate, were sufficient evidences of a gift, i/ruter vivos, of the moneys deposited in the bank, although no ■ such issue was tendered by the answer. But the'mere possession of the book, or of the book and check, is but one of several elements which are essential to the establishment of the defendant’s conten- , tion. There must have existed an intention upon the part of the intestate to part absolutely with her property, and such intention must have been consummated by an actual delivery to the donee. (Harris v. Clark, 3 N. Y. 93; Beaver v. Beaver, 137 id. 59; Govin v. De Miranda, 79 Hun, 286.) In the case of Ridden v. Thrall (125 N. Y. 572), which is cited and apparently relied upon by the defendant’s counsel, there was not only convincing proof of an intention upon the part of the donor to divest himself of all right and title to the subject of the gift, but such intention was accompanied by an actual and formal delivery. Neither one of these ■ elements appears to be present, in this case, and, therefore, the learned trial justice was undoubtedly correct in the conclusion he reached, that the defendant failed to fulfill the obligation which the law imposes upon him of establishing his claim to these moneys by ■evidence which shall be entirely satisfactory in its character.

Upon the argument of the appeal, the learned counsel sought to ■ supply this very obvious defect in his case by insisting that the posses- ■ sion by the defendant of the intestate’s check for the amount of her •deposit raises the presumption that it was given for a good consideration, and consequently that it operated as a complete and valid transfer of the sum of money mentioned therein. But the rule thus invoked lias its limitations, and very slight circumstances will .serve to repel any presumption thus created. That it was satisfactorily met in this case, and that the learned trial justice was fully supported in his findings of fact and conclusions of law, can be easily demonstrated.

Perhaps it would be a sufficient answer for the defendant’s present contention to say that it is now urged upon the attention of the court for the first time. As lias already been suggested, the trial was conducted upon an entirely different theory, and when the case was taken from the consideration of the jury the -only request made by the counsel was that the question» of the delivery of the check and bank book might be submitted, and it was not even suggested that there was any other issue to be considered. But had this not been the case, the fact that the check was signed more than a month prior to the death of the intestate, and ivas not presented at the bank until several months after her death, is sufficient to justify the trial court in concluding that it was not received in the usual course of business and for a valuable consideration. (Stimson v. Vroman, 99 N. Y. 74.)

The judgment and order should, therefore, be affirmed.

Lewis, Bradley and "Ward, JJ., concurred.

Judgment and order affirmed, with costs.