author: Martin, J.:

text:
    David B. Ackley, Respondent, v. George H. Welch and Another, Appellants, Impleaded with Another.

      Objections to the admission and rejection of evidence —proof of the mailing of a letter — when presumptive evidence of its receipt — insufficient objection to its admission in evidence.

    To entitle a party to the review of a ruling of the trial court, on the question of the admitting or rejecting of evidence, there must be a proper objection taken to the evidence when offered and an exception taken to the ruling thereon. The overruling of a general objection to evidence will 'be sustained on appeal unless it clearly appears that'there is some ground of objection which, could not have been obviated if it had been specified, or unless the evidence in any aspect of the case was incompetent.
    Proof given upon the trial of an action that letters were mailed to one of the parties, postpaid, raises a presumption that they were received by him, and until rebutted by proof is sufficient evidence of that fact.
    Upon the trial of an action copies of certain letters were offered in evidence. They were objected to as incompetent, immaterial, irrelevant and not properly proved. The copies of the letters were received in evidence and the party objecting excepted. No notice had been given to the party objecting to the • admission in evidence of the copies of such letters, against whom judgment was rendered, to produce the original letters in his possession.

      Held, that the objection taken to the admission in evidence of the copies.of such letters was insufficient to secure the reversal of the j udgment on appeal on the ground that the copies of the letters received were not the best evidence.
    Appeal by the defendants, George H. Welch and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 14th day of June, 1894, upon the report of a referee.

      John F. Dortfvy, for the appellants.

      F. L. Brown, for the respondent.
   Martin, J.:

The referee found that the contracts set forth in the complaint herein were duly made and executed by the parties to this action; that the provisions of all of said contracts were complied with and fulfilled on the part of the plaintiff, but that the defendants failed to fulfill them upon their part, and that by reason thereof the plaintiff sustained damage in the sum of $459.92.

After a careful examination of tlie testimony given upon the trial, we are satisfied that the conclusions reached by the referee were sustained by the evidence, and that the judgment herein should not be disturbed unless some error has been committed in the reception or rejection of evidence.

On the trial the plaintiff', while being examined as a witness, was shown a letter written by him to the defendant Hitter, January 31, 1893. He testified that it was his signature to the letter; that he mailed a duplicate of it to the defendant Hitter at 81 West Broadway, New York city; that there was a card upon the envelope in which it was inclosed, and that he did ;iot receive it back, and that both the duplicate sent and the one retained were signed by him. The letter was offered in evidence by the plaintiff. The defendants objected to it on the grounds that it was not properly proved and was incompetent; also, as “incompetent and immaterial and not properly made for its reception.” The letter was received in evidence, and the defendants excepted.

The plaintiff also testified that there were two of these letters. The other one (dated February 6, 1893) I signed and addressed and mailed to W. G. Hitter, New York. On the envelope was George H. Welch & Co., D. B.-Ackley, manager, 75 Arcade, Utica, N. Y. I wrote on myself, If not called for return after five days.’ The address was 75 Arcade Building, and if not called for it was to be returned to that address.' It was never returned”.”

Again, the letter was shown the witness, and he testified: ££ I dictated this letter. That is not the letter that was sent and afterwards came into my possession; that is, a carbon copy was made, and, I think, was sent; that is, the original, the copy was sent, or the duplicate of it. It was sent by mail, postage prepaid, and addressed to W. G. Hitter, 8é Broadv/ay, New York city, who claimed that to be his post office address.” After this proof was given, the letter was offered in evidence and objected to as incompetent, immaterial, irrelevant and not properly proved. The case then states: ££ This letter was offered December 19, 1893, and is now marked £ Ex. 11,’ as it was received at that time, but not marked.” When first offered it was objected to upon the same ground as the preceding one and received, to which the defendants excepted.

The most serious question presented upon this appeal is as to the correctness of these rulings. It may be observed in passing that the letters sent and those retained were signed by the plaintiff, and, perhaps, might be regarded as duplicate originals, and thus the rule preventing the introduction of a copy without first giving the defendant notice to produce the original may not have been violated in receiving them in evidence. (Totten v. Bucy, 57 Md. 446.) Bnt, be that as it may, it will be observed that the defendants at no time objected to the admission of these letters upon the ground that they were copies or not the best evidence. The only objections raised to either were that it was incompetent, immaterial, irrelevant and not properly proved. We think none of these objections were well taken. Proof, that these letters were mailed to the defendant, postpaid, raised a presumption that they were received by him, and, until repelled by proof, was sufficient evidence of that fact. (Bell v. The Lycoming Fire Ins. Co., 19 Hun, 238; People ex rel. Swinburne v. Albany Medical College, 26 id. 348; affd., 89 N. Y. 635; Austin v. Holland, 69 id. 571; 2 Whart. on Ev. § 1323.) The letters were clearly relevant, material, competent and, properly proved. The only valid objection that could have been made to their reception, even if they were copies, was that they were not the best evidence. Having omitted to raise that objection upon the trial, we do not think it can be raised for the first time upon appeal.

To entitle a party to the review of a ruling of a trial court upon the question of admitting or rejecting evidence, there must be a proper objection taken to the evidence when offered and an exception taken to the ruling thereon. Overruling a general objection to evidence-will be sustained on appeal, unless it clearly appears that there is some ground of objection which could not have been obviated if it had been specified, or unless the evidence in any aspect of the case was incompetent. (Daly v. Byrne, 77 N. Y. 182; Williams v. Sargeant, 46 id. 481; Tooley v. Bacon, 70 id. 34; Quinby v. Strauss, 90 id. 664.) In Stevens v. Brennan (79 id. 254) it was held that a general objection to a question could only be considered as applying to the competency or materiality of the point sought to be proved and not to the competency of the witness to testify upon the subject. The objections taken by the appellants to the admission of these letters related to the materiality, relevancy and competency of the evidence itself and not to the manner of proving them. If tlie proper objection had been interposed, presumably the plaintiff would have obviated it by giving notice to the defendants to produce these letters. Hence, we think that the defendants’ exceptions to these rulings were not well taken.

We have examined the various other exceptions taken by the appellants, but have found none that require special discussion or that would justify a reversal.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Martin, J.: Merwin, J.:

license: Public Domain

text:
    Walter Walrath and Other’s, Appellants, v. William H. Abbott, Respondent.

      Order directing findings to be annexed to a judgment roll — irreconcilable findings — effect of the repeal of section 1028 and the a/mendment of section 1022 of the Oode of Oivil Procedure.

    While it may be that the better practice would require a court or referee to include in his decision or report all the facts found, and that without an order of the court requests to find and rulings thereon should not form a part of the judgment roll, yet where the trial judge has not included in his decision all the facts found by him, but has delivered those not included therein to the unsuccessful party, who has caused them to be filed, ordinarily an order will be granted requiring the cleric to annex such requests and rulings to the judgment roll. •
    Where certain findings of fact were made in the action by the trial court at the request of the unsuccessful party and filed, the unsuccessful party is entitled to the benefit thereof, and if the findings contained in the decision and those contained in the requests to find are inconsistent and irreconcilable, he is entitled to the benefit of the findings most favorable to him.
    Notwithstanding the repeal of section 1028 of the Code of Civil Procedure and the amendment of section 1022 thereof, the court upon the trial of an action may still state separately the findings of fact and conclusions of law and direct the judgment to be entered thereon; the unsuccessful party, when the trial judge adopts this course of procedure, is entitled to the benefit of all the facts found, whether included in the decision or in his requests found and filed.
    Where a party desires to review the decision of the .Special Term upon the facts and conclusions of law found, all the findings should be annexed to the judgment roll to enable him to do so.
    Merwin, J., dissenting.

      Appeal by the plaintiffs, Walter Walrath and others, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Herkimer on the 14th day of September, 1894, denying the plaintiffs’ motion to require the defendant’s attorney and the clerk of Herkimer county to include in the judgment roll the plaintiffs’ requests to find, together with the rulings of the court thereon.

      O. J. Palmer, for the appellants.

      H. Glay Hall, for the respondent.
   Martin, J.:

After a previous trial of this case and after an appeal was taken from the judgment entered on the report of the referee therein, a motion before this court was made by the plaintiffs to compel the clerk of Herkimer county to annex to the judgment, roll the plaintiffs’ requests to find and the rulings of the referee thereon. That motion was granted. We see no reason why we should not follow our decision at that time.

While it may be that the better practice would require a court or referee to include in his decision or report all-the facts found, and that without an order of court requests to find and rulings thereon may not form a part of the judgment roll (Nobis v. Pollock, 53 Hun, 441; Livingston v. Manhattan Railway Co., 27 Abb. N. C. 411), yet, as that practice was not adopted in this case, the trial judge not having included in his decision all the facts found by him but having delivered those not included therein to the plaintiffs, who caused them to be filed, and as the appellants may desire to review the decision herein upon the findings of fact and conclusions of law made by the trial judge, including those contained in the plaintiffs’ requests, we can see no good reason why an order should not have been granted requiring the clerk to annex such requests and rulings to the judgment roll.

The suggestion that they were no part of the decision, but in the nature of an opinion by the court, ought not to obtain. It is manifest from the papers contained in the appeal book that the plaintiffs were desirous that the court should pass upon the various facts proved and at issue upon the trial, and made their requests accordingly. Upon eacli request the trial judge noted that it was found or refused as he then judicially determined the fact. It was then-his purpose to find the facts as thus noted as established facts in the case, and not to illustrate his views. I think when the findings were thus made by the trial court and filed the plaintiffs were entitled to the benefit of them, and if the findings contained in the decision and those contained in the requests to find were inconsistent and irreconcilable, the plaintiffs were entitled to the benefit of the findings most favorable to them. (Redfield v. Redfield, 110 N. Y. 671; Green v. Roworth, 113 id. 462; Wahl v. Barnum, 116 id. 87, 99; Traders' Nat. Bank v. Parker, 130 id. 415; City of Cohoes v. D. & H. C. Co., 134 id. 405.)

The respondent contends, and the Special Term seems to have adopted the view, that the repeal of section 1023 of the Code of Civil Procedure has changed the rule as to findings of fact and conclusions of law. That its repeal and the amendment of section 1022 have wrought a change there is no doubt. But a reference to the latter section discloses that the court, upon the trial of the whole issues of fact, may still state separately the facts found and the conclusions of law, and direct the judgment to be entered, thereon. Such was the course adopted in this case. When the trial judge adopted that course of procedurej we think the plaintiffs' were entitled to the benefit of all the facts found by him, whether included in the decision signed or in the plaintiffs’ requests found and filed.

We find nothing in the repeal of section 1023 and the amendment of section 1022 which in any way deprives a party of the benefit of all the findings of fact made by the trial court where it states the facts found and conclusions of law. It is true the amendment of the latter section gives the court the right in deciding the issues in a case to file a decision stating concisely the grounds upon which such issues have been decided, and direct the judgment to be entered thereon. If,, however, the court adopts the former course, and states the facts, we think the defeated party is entitled to the benefit of all the facts found by him, and where a party desires to review the decision of the Special Term upon the facts and conclusions of law found, all the findings should be annexed to the judgment roll to enable the party to thus review them.

Without deciding that requests to find and the rulings thereon necessarily form a part of the judgment roll in ail action, we are of the opinion that in this case an order should have been granted directing the clerk to annex them thereto.

We think the order appealed from should be reversed, with ten dollars costs and disbursements, and that the plaintiffs’ motion should be so far granted as to order the clerk of Herkimer county to annex the requests to find and the rulings of the court thereon to the judgment roll filed in this action.

We are also of the opinion that the defendant’s motion to dismiss the plaintiffs’ appeal and for judgment of affirmance should be denied, without costs to either party.

Hardin, P. J., concurred.

Merwin, J.:

I think that the order of the Special Term should be affirmed. I concur in the denial of the motion t© dismiss the appeal. ■

Order of Special Term reversed, with ten dollars costs and disbursements, and order directing the clerk of Herkimer county to annex to the judgment roll in this action the plaintiffs’ requested findings of fact and conclusions of law with the rulings of the court thereon granted, without costs to either party.

The defendant’s motion to dismiss the appeal and for affirmance of the judgment denied, without costs to either party.


author: Merwin, J.: Hardin, P. J.:

text:
    Thomas E. Park, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Negligence of a fellow-servant — evidence as to his reputation for can'e, admissible.

    Upon the trial of an action brought to recover damages for personal injuries sustained by reason of the defendant’s alléged negligence, evidence of the general reputation as to prudence and care of the fellow-servant of the plaintiff, an employee of the defendant, through whose negligence the accident in which the plaintiff sustained the injuries complained of occurred, is competent on the subject of notice.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supremo Court in favor of tlie plaintiff, entered in tlie office of the clerk of the ■county of Onondaga on the lOtli day of April, 1894, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 8th day of .February, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      'HiscooTc, JDoheny da Hisoock, for the appellant.

      Louis Marshall, for the respondent.
   Merwin, J.:

The recovery in this case is for damages sustained by the plaintiff by reason, as he claims, of the negligence of the defendant. On the 21st of November, 1891, the plaintiff was, and had been for a number of years, in the employ of the defendant as a locomotive •engineer. On the evening of that day he was the engineer upon a mail express train that left Syracuse at eight-twenty-five, eastward bound on track No. 1. The train passed Canastota about nine o’clock, and when about a mile east of that place it ran into a freight train of the defendant going eastward on the same track, but which was then stalled in going up a grade. The injuries to the plaintiff which are here complained of' were one of the results of the collision. The night was dark and rainy, and there was a strong southerly wind. At Canastota the plaintiff was informed by the indicator there that there was a train on the same track forty-three minutes ahead of him. His train was going at the rate of about forty miles an hour. Between Canastota and the place of the accident there is a curve to the north, being to the left as you go east, and the stalled train was a short distance, about 800 feet, beyond this curve. The plaintiff claims that he did not see the stalled train or get any notice of the obstruction in time to stop. Whether he did so, or whether in the exercise of reasonable care he might have done so, were questions for the jury. When the freight train stopped it became the duty of one Brown, a brakeman on that train, to go back at least half a mile, according to the rule of the defendant, and give the proper signal to any approaching train. There was evidence tending to show that he did not do this, although he had plenty of time for that purpose; that his failure to do it was the cause of the accident, and that such failure was due to his incompetency to perform the duties of his position. There is abundant evidence to sustain the finding that Brown was incompetent within the rule laid down in Coppins v. N. Y. C. & H. R. R. R. Co. (122 N. Y. 557, 564). The conclusion that the accident was due to such incompetency is not against the weight of the evidence. It is claimed by the plaintiff that the defendant was negligent in employing and keeping in its employment such a man when it knew, or in the exercise of reasonable care might have known, of his unfitness for the position. The conclusion of the jury in this respect should not, we think, be disturbed.

It is claimed by the defendant that the plaintiff was himself negligent in that he did not, as the defendant claims, comply with rule No. 131 of the company. That provides on this subject as follows : “ It is required' of both engineman and fireman to keep a careful lookout from the engine. When rounding curves take position on the inside of the curve and keep sharp lookout until straight line is reached.” The curve here was to the left. The position of the plaintiff on the engine was on the right while the position of the fireman was on the left. The plaintiff did not on approaching the curve take position on the left. Whether his failure to do so under the circumstances of this case was negligence which contributed to the accident was a matter for the jury to decide.

In the course of the trial evidence on the part of plaintiff was received of the general reputation of the brakeman Brown prior to the accident as to his prudence and care. The objection taken was that it was incompetent and immaterial. Evidence was also received, under like objection, that his general reputation was that he was “ a little off,” and that among railroad men he was usually called “crazy Brown.” The defendant claims that in admitting this evidence there was prejudicial error.

It has been held in several cases that evidence of this kind was competent on the subject of notice. (Gilman v. Eastern Railroad Co., 13 Allen, 433; Monahan v. Worcester, 150 Mass. 439; Lake Shore & Michigan Southern Railroad Co. v. Stupak, 123 Ind. 210, 225; Davis v. Detroit da Mil. R. R. Co., 20 Mich. 124; Norfolk & W. R. Co. v. Hoover [Md.], 29 Atl. Rep. 994; Wood on Mast. & Serv. § 421.) In the Monahan case it is said: “ The master is bound to use reasonable care in selecting his servants, and if a person is incompetent for the work he is employed to do, the fact that he is generally reputed • in the community to want those qualities which are necessary for the proper performance of the work certainly has some tendency to show that the master would have found'out that the servant was incompetent if proper means had been taken to ascertain the qualifications of the servant.”

On the part of the defendant we are referred to Haskin v. N. Y. C. & H. R. R. R. Co. (65 Barb. 135) and Young v. N. Y. Ont. & W. R. Co. (77 Hun, 612). The Young case was decided by this court, but the question here involved was not passed upon. In the Hasltin case, which was decided in January, 1873, evidence as to the reputation of one "Wood as an engineer had been excluded, and in sustaining the ruling it was said : “ Reputation is not competent evidence to charge a master with negligence in the employment of a servant, because, first, it may be false, and, second, he may never have heard it.” It was also said that no question was made that the defendant was chargeable with negligence in the employment of Wood. What bearing reputation might have on the question of notice was not considered. It may be here observed that in Baulec v. N. Y. & Harlem R. R. Co. (59 N. Y. 356), decided in December, 1874, it is said by Judge Allen at page 361’: A principal would be without excuse should he employ for a responsible position, on the proper performance of the duties of which the lives of others might depend, one known to him as having the reputation of being an intemperate, imprudent, indolent or careless man. He would be held liable to the fellow-servants of the employee for any injury resulting from the deficiencies and defects imputed to the individual by public opinion and general report.”

We are of the opinion that the evidence of general reputation was competent on the subject of notice, and, therefore, the general objection to it was properly overruled. (Hersey v. Benedict, 15 Hun, 285.) The defendant did not ask to have its effect limited to the question of notice. It would seem from the course of the trial that the main if not sole object of the evidence was to show notice. It was referred to by the court in its charge, and no exception was taken to the remarks of the court on the subject.

We have examined the other exceptions to which our attention has been called, and find no sufficient ground for reversal.

Martin, J., concurred.

Hardin, P. J.:

In yielding my assent to the views expressed in the opinion of Merwin, J., besides the authorities cited therein, I am influenced somewhat by the decision made by this court in Van Duzen v. L. S. & M. S. Ry. Co. (12 N. Y. St. Repr. 353). It was there said, viz.: “ It may be said that the defendant should have known his reputation as a railroad man. The answer to that suggestion is, that there was no evidence that he had other than a good reputation at the time of his employment, or at any other time excepting during the two days in which he was engaged in making a single trip over the defendant’s road.”

The language seems to indicate that such evidence might have been proper to show the defendant guilty of negligence in selecting or keeping an employee in the service of the road. I think due regard to the authorities require that I should concur, as I do, in the opinion of Merwin, J. (Bossout v. R., W. & O. R. R. Co., 32 N. Y. St. Repr. 886; affd., 126 N. Y. 646.)

Judgment and order affirmed, with costs.


author: Mekwin, J.:

text:
    Seymour Lowman, as Administrator, etc., of Charles G. Judd, Deceased, Respondent, v. The Elmira, Cortland and Northern Railroad Company, Appellant.

      Letters of administration conclusive — compromise of a judgment by an attorney — limitation of an administrator’s powers — presumption as to the capacity in which money is held— distribution of a decedents estate.

    Where a Surrogate’s Court has jurisdiction to grant letters of administration on the estate of a decedent, its determination in removing one administrator and appointing another and as to the sufficiency of the administrator’s bond, is conclusive in an action brought by such administrator in the Supreme Court to recover damages resulting from the death of his intestate.

      The attorney for the plaintiff in whose favor judgment has been recovered in an action has no authority to compromise the judgment. If he has a right to receive any part of the judgment, what he in fact does receive may be applicable thereon, but such partial payment does not justify his giving a satisfaction piece thereof.
    Presumptively the defendant in an action is chargeable with notice of the limitations contained in the letters of administration granted the plaintiff under the provisions of section 2667 of the Code of Civil Procedure as it was in 1886 (now section 2664), and the defendant has no right to pay the judgment recovered in such an action against it either to the administrator or to his attorney. Ordinarily when a person acts in a dual capacity, and in one capacity receives money which should be transferred to and held by him in the other capacity, the law presumes that he has done his duty and that he holds the money in the capacity in which he should hold it.
    Under the provisions of section 2746 of the Code of Civil Procedure an administrator of a decedent who has collected a judgment, recovered by him for the damages sustained by reason of the death of his intestate, has no right to pay the same or a portion thereof to the general guardian of the decedent’s sole heir at law and next of kin unless so directed by the proper Surrogate’s Court. The amount collected must be'paid in conformity with the general provisions of the Code of Civil Procedure regulating the manner of payment'of a distributive share of an estate belonging to an infant.
    Appeal by tbe defendant, Tbe Elmira,' Cortland and Northern Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Cbemung- on tbe 2d day of October, 1894, upon tbe decision of tbe court rendered after a trial at tbe Cbemung Special Term vacating and setting aside a certain satisfaction of judgment recovered in favor of Hurd B. Judd, as administrator, etc., of Charles G. Judd, deceased, against tbe Elmira, Cortland and Northern Railroad Company, and executed by Jacob Schwartz, tbe plaintiff’s attorney in said action.
    This action was brought to set aside and vacate tbe satisfaction of a judgment recovered in tbe Supreme Court and entered on tbe 29th of October, 1886, for tbe sum of $4,349.31 in favor of Hurd B. Judd, as administrator, etc., of Charles G. Judd, deceased, against this defendant, The Elmira, Cortland and Northern Railroad Company. By the judgment appealed from it is adjudged that the satisfaction piece of said judgment, which was executed by Jacob Schwartz, plaintiff’s attorney therein, on the 26th of July, 188Y, and filed in tbe Chemung county clerk’s office the same day,
      “ be and the same is vacated and set aside, and that the said judgment against the defendant and the lien thereof be and the same hereby is restored.”

      Frederick Oolli/n, for the appellant.

      Bald/urwi <& Baldwwi, for the respondent.
   Mekwin, J.:

On the 24th of October, 1885, Charles G-. Judd, then being in the employ of the defendant as a brakeman, was killed while in the performance of his duties and died intestate, leaving him surviving as his only heir and next of kin a daughter, Emily B. Judd, an infant, and leaving no widow. On the 10th of November, 1885, Hurd B. Judd, of Pittston, in the State of Pennsylvania, was appointed general guardian of the said infant by the Surrogate’s Court of the county of Chemung. This appointment was based on the petition of Hurd B. Judd, which stated, among other things, that he resided at Pittston and was the uncle of the minor; that the minor was eight years old and resided in the city of Elmira and had no property, real or personal, with the exception of seventeen dollars due to her deceased father. On the 3d day of March, 1886, Hurd B. Judd, as general guardian of the minor, applied to the Surrogate’s Court of Chemung county for letters of administration upon the estate of Charles Gr. Judd. His verified petition stated, among other things, that Charles Gr. Judd, at the time of his death, resided in the city of Elmira, in said county; that he died intestate and the value of his personal property did not exceed fifty dollars; that he came to his death by reason of injuries through the negligence of this defendant, and that the petitioner desired to commence an action, as administrator, to enforce the liability given by the statute; that the petitioner had no property in this State and no means of procuring bondsmen or giving a bond for the amount of the probable recovery. Thereupon the Surrogate’s Court, upon the petitioner filing a bond in the sum of $300, issued letters to Hurd B. Judd. These letters, after reciting the death and residence of Charles Gr. Judd, and that a right of action is reserved and granted by special provision of law, and that Hurd B. Judd -is entitled to the administration of said estate and has filed the proper oath, proceeds as follows: “We do by these presents depute, constitute and appoint you, the said Hurd B. J udd, administrator of all and singular the goods, chattels and credits which were of the said Charles G. Judd, deceased. These letters, however, are limited to the prosecution of an action by said administrator to recover damages by special provision of law by reason of the death of said Charles G-. Judd, deceased; and you, the said Hurd B. Judd, as such administrator, are hereby restrained from a compromise of any such action and the enforcement of any judgment recovered in “any such action until the further order of the surrogate of the said county of Chemung.

“ Granting by these presents unto said administrator full power to administer upon the estate of said deceased, and to do and perform all duties and acts relating thereto, which, by the laws of this State are required of administrators appointed by the surrogate, and the performance of which, in the administration of said estate, maybe necessary for the due, faithful and proper administration thereof. •.Subject, however, to the conditions, limitations and restrictions hereinbefore mentioned.”

Thereafter, an action was brought in the Supreme Court against the defendant in the name of Hurd B. J udd, as such administrator, upon the cause of action referred to in the petition and letters, and Jacob Schwartz was the plaintiff’s attorney therein. It was brought to trial in October, 1886, and a verdict rendered in favor of the plaintiff therein for $4,000 ; and, upon this, judgment was duly entered on the 29th of October, 1886, for $4,349.31, damages and costs. On the 26th of July, 1887, the defendant paid to said Schwartz the sum of $4,750 in settlement of the judgment, and also of another claim upon which a suit was pending in the Supreme Court in favor of one Rogers against the same company to recover $3,000 or $4,000, in which suit the said Schwartz was the attorney for the plaintiff Rogers. These two claims were settled in a lump amount and no division made at the time, so that how much was for one or the other does not appear. At the time of this settlement the Rogers action was discontinued and the satisfaction piece in controversy executed by Schwartz as plaintiff’s attorney and delivered to the defendant.

On tile 5th of September, 1892, upon the petition of the minor, who had then arrived at the age of fourteen years, the plaintiff, Seymour Lowman, was duly appointed her general guardian, and immediately instituted proceedings in the Surrogate’s Court of Chemung county for the removal of Hurd B. Judd as administrator ; and thereupon, after a hearing, and on the 24th of October, 1892, an order was made removing Judd from the office of administrator, and revoking the letters issued to him, and directing that letters be issued to the plaintiff, Seymour Lowman, upon his giving the’ proper bond and qualifying. In pursuance of this order letters were issued to plaintiff on November 1, 1892. It is not found how much of the moneys paid to the attorney reached the hands of the administrator Judd. It is, however, found that he as administrator or as guardian has never accounted for any of such moneys, nor has the plaintiff ever received any part of the same.

It was decided by the Special Term that the compromise and settlement of the judgment made by the attorney was made without right or authority, and that the plaintiff in that action had no right or authority to satisfy the judgment or to receive pay therefor, and that the plaintiff in this action was entitled to a judgment vacating and setting aside the satisfaction piece and restoring the judgment and the lien thereof.

The defendant claims that the appointment of the plaintiff as administrator is invalid because no petition was filed as provided by section 2664 of the Code, and because the bond which he gave was not twice the value of the personal property, including the recovery against the defendant.

All the facts authorizing and calling for the appointment of Lowman as administrator appeared in the proceedings in the Surrogate’s Court for the removal of Judd, and were before the court when it appointed the plaintiff. The bond was in the penalty of $4,000, and the proceedings showed that the recovery against the defendant was for $4,000, besides costs. The defendant feannot raise here the cpxestion that the plaintiff’s bond was insufficient. (Sullivan v. Tioga R. R. Co., 44 Hun, 304, and cases cited.) The Surrogate’s Court had jurisdiction to grant the letters, and they are here conclusive. (Code, § 2591; Kelly v. West, 80 N. Y. 145.) We must, I think, assume that the letters to plaintiff are valid.

Assuming that the letters to Judd were without limitation, the attorney for the plaintiff in the judgment had no authority to compromise the judgment. (Cox v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 419; Lewis v. Woodruff, 15 How. Pr. 539.) To avoid this situation, it is claimed by the defendant that the judgment must be deemed to have been paid in full. That fact, however, is not found, nor is there any request to find it. The attorney for the defendant who negotiated the settlement testified that the full amount of the judgment was paid, but he also testified that the two claims were settled in a lump amount, and that how much Schwartz received on the Judd judgment and how much on the other claim he did not know, and that he did not know how Schwartz divided it in his own mind, and that as between them there was po division made. Evidently the statement of the witness, that the full amount of the judgment was paid, was only the operation of the mind of the witness, and not a part of the agreement of settlement. If on this subject we. were to assume anything, it would be in support of the decision appealed from, that there was in fact a compromise of. the judgment. We could not assume to the contrary for the'purpose of reversal. (E. C. Foundry Co. v. Hersee, 103 N. Y. 25.) This question, however, I do not consider very important. For if the attorney had a right to receive any of the judgment, what he in fact did receive might be applicable on it, though he had no right to satisfy the judgment.

The important questions, therefore, are whether the defendant was protected in paying the judgment to the plaintiff therein, or his attorney, and, if not, whether the defendant can be afforded any protection by reascfn of the fact that Judd was at the time general guardian of the infant.

By the Code of Civil Procedure, section 266T, as it was in 1886, now section 2664, it is provided as follows : “ But where a right of action is granted to an executor or administrator by special provision of law if it appears to be impracticable to give a bond sufficient to cover the probable amount to be recovered, the surrogate may, in his discretion, accept modified security, and issue letters limited to the prosecution of such action, but restraining the executor or administrator from a compromise of the action, and the enforcement of any judgment recovered therein until the further order of the surrogate, or additional further satisfactory security.” Under this provision the letters in question were issued, and the limitations appeared upon their face, and also appeared in the records of the Surrogate’s Court. Yery clearly it was the purpose of the law to confer upon such an administrator only the right and power to prosecute the action for the purpose of obtaining a judgment if he could, and so determine the right and liquidate the amount. He had no right to compromise the action or collect the judgment. In the answer of the defendant in the action the issuing of letters was denied. Presumptively they were proved upon the trial, and the defendant would have knowledge of the limitation on their face.’ It is not found or proved in the present case that the defendant did not know of the limitations or that it paid the money in good faith, although the attorney of the defendant who negotiated the settlement was a witness in the case. It should, I think, be held that, presumptively at least, the defendant was chargeable with notice of the limitations in the letters, and that, therefore, it had no right to make the payment. The attorney for the administrator had no greater rights or power to receive the money than the client had.

The defendant further claims that the money, having been received by Judd as administrator, passed by operation of law to him as general guardian, and is now held by him as such. The principle is invoked that when a person acts in a dual capacity, and in one capacity receives money which should be transferred to and held by him in the other capacity, the law will presume that he has done his duty and holds the money in the capacity in which he should hold it. Many cases are cited to sustain the general proposition, and in most of them the question arose in determining controversies between sureties for the party in his different capacities. None of the cases referred to are in this State except In the Matter of Brown (72 Hun, 160). In that case one Brown was the general guardian of an infant, who was a residuary legatee in a will of which Brown was executor. On his accounting as executor he credited himself as executor with certain funds as paid to himself as guardian and filed receipts for the .same from himself as guardian,' and on the strength of these he was discharged from liability as executor. In fact the payments had never been made. Upon an accounting by Brown as guardian lie charged himself with the same payments that he had been credited with as executor. The sureties on the bond of the guardian claimed that this should not Jie done, because upon the settlement of the executor the Surrogate’s Court omitted to decree that the guardian should give a special bond as required by section 2746 of the Code, and that in default of this the payment to the guardian, though in pursuance of a decree, was illegal. It was held that the guardian could not be heard to deny the right of the ward to a decree charging him with the amount, and that the sureties were not in any better position than their principal. This ruling does not help us in the present case.

The principle invoked by the defendant does not apply to this case. Assuming that Judd, as administrator, had the fund in his hands he had no right, as against the infant heir and next of kin, to transfer it to himself as guardian. By section 1903 of the Code it is provided that the damages in such case when collected “ must be distributed by the plaintiff as if they were unbequeathed assets left in his hands after payment of all debts and expenses of administration,” but the plaintiff therein may deduct the expenses of the action and his commissions upon their allowance by the surrogate. The manner in which unbequeathed assets after the payment of debts and expenses shall be distributed is provided for by other sections of the Code (§ 2732 et seq.). By section 2746 it is provided that when a distributive share is payable to an infant the Surrogate’s Court may, among other things, direct it to be paid to the general guardian upon his depositing with the surrogate in his office a bond of the form and character there specified, but that if no direction is made by the Surrogate’s Court as to its payment in some of the ways there described, it shall, by order of that court, be paid into said court by payment to the county treasurer to be managed by him as therein directed. Under the provisions' of this section an administrator has no right to pay a distributive share to a general guardian unless directed by the Surrogate’s Court. It was so held under a similar provision of the Revised Statutes. (Willcox v. Smith, 26 Barb. 318, 336. See, also, Estate of Flagg, 10 N. Y. St. Repr. 694; Redf. Surr. Pr. [5th ed.] 686.) The fact that the distributive share in this case arose from the proceeds of a special action furnishes no good reason for removing it from the operation of the general provision as to the manner of payment of a distributive share belonging to an infant.

It is suggested oon the part of the defendant that a payment by the defendant to the general guardian would have been good, and that -the payment here should be deemed to have been made to the guardian. The damages in such a case are recoverable only by an executor or administrator, and the defendant would have no greater right to pay or distribute them than the administrator would; so that if the administrator, though an unlimited one, had no right to pay the guardian without the order of the Surrogate’s Court, the defendant would have no better right. No question was made on the trial or is here about the costs that were included in the judgment. We must, therefore, assume that any equities the defendant may have in regard to them as to the plaintiff in the judgment or the attorney have been fully protected or will be in any future proceeding on the judgment as restored.

It follows that the judgment should be affirmed.

Hardin, P. J., and Martin, J., concurred.

Judgment affirmed, with costs.


author: O’Brien, J.:

text:
    Charles W. Packard, Plaintiff, v. Alphonse J. Stephani, Defendant.

      Authority of an attorney to make disbursements for his client — right of the latter to refuse to incur expenses— effect of notice of such refusal to a person seeking to recover from the client.

    An attorney in the conduct and management of his client’s case has authority to make such necessary and proper disbursements as the case requires, and this authority may be implied merely from the relation between attorney and client, from which a request on the part of the latter will be presumed, but it is equally true that however necessary services may be regarded by the attorney in the client’s interest, the latter has a right to refuse to incur them, and the attorney cannot charge the client except in favor of some one who acted, without notice of such dissent on the part of the client, upon the presumed authority with which such attorney was clothed.
    Where, however, the person seeking to recover upon the implied or presumed authority which grows out of the client’s relation to the attorney, is notified that the attorney has no right to incur the expense, he cannot hold the client responsible.
    Motion by tbe plaintiff, Charles W. Packard, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the verdict of a jury in favor of the defendant, rendered by direction of the court after a trial at the New York Circuit on 3d day of April, 1894.

      Roger Foster, for the plaintiff.

      Nelson S. Spencer, for the defendant’s guardian ad litem.

   O’Brien, J.:

This action is brought to recover upon a quantum meruit the reasonable value of the services of John H. Packard^ a physician of Philadelphia, for testifying as an expert witness before a commission appointed to examine into the sanity of the defendant, and upon the trial of the defendant for murder. The claim of Dr. John H. Packard was subsequently assigned by him to this plaintiff.

It appears that in 1885 Dr. Packard had examined the defendant, and subsequent to that period, when passing through New York, had seen him for a moment, and his testimony was required and practically directed to showing the mental and physical condition of the defendant’in 1885. Such testimony as he gave was upon the request of the counsel in the case, who, deeming it important, procured the attendance of the doctor upon the commission and at the trial. On both occasions the question at issue was the sanity of the defendant, and in the employment of counsel and the necessary expenses attending these proceedings, it would appear that the mother of the defendant, as well as the defendant himself, took part in arranging for the presentation of his case. Hearing that he was to be a witness, the mother wrote to the doctor as follows : It'is but right for me to advise you that in case you are called I cannot be responsible for any charges or expenses you may incur.” It is not claimed, nor is there any evidence to show, that the defendant requested his attendance ; on the contrary, it appears from the testimony that he did not desire the doctor’s attendance.

Assuming, therefore, the view most favorable to the plaintiff, that he was called as an expert, and not as an ordinary witness to give testimony to facts within his knowledge — which it would seem from the record was what was required from him — the question is, Can he recover for such attendance ? If he can, the question of the value of his services would be one for the jury. The single question presented upon this appeal is whether, in the absénce of any request'by the defendant or his mother, and in the face of the expressed unwillingness of both, one of whom communicated the fact to him, there is sufficient in the action of the counsel in obtaining the presence of the doctor and placing him on the stand, from which a request and a subsequent obligation on the part of the defendant to pay him can be implied.

There can be no doubt of the authority of an attorney in the conduct and management of his client’s case to make such necessary and proper disbursements as the case shall require. This authority can be implied merely from the relation between attorney and client, from which a request on the part of the latter would, be presumed. And we think it equally true that, however necessary the services might be regarded by the attorney in the client’s interest, the latter has a right to refuse to incur them, and the attorney could not charge the client, except in favor of some one who acted upon the presumed authority with which such attorney was clothed. Where, however, the person seeking to recover upon the implied or presumed authority which grows out of the client’s relation to the attorney, is notified that the attorney has no right to incur the expense, he cannot hold the client responsible. Were it otherwise, an attorney might compel the client to pay any and all sums, however much beyond the means or inclination of the client in a particular case, and notwithstanding the person towards whom the obligation was incurred had notice of the restricted or questionable right of the attorney.

It will be noticed that we have discussed the question as though it were the attorney, whereas in this case it was the counsel, upon whose request the doctor came and gave his testimony, but for the purposes of this appeal we have treated it as though the counsel possessed all the power and authority of a regularly retained attorney, which we doubt.

We think, in view of the notice which the doctor received and which was sent him by the mother of the defendant, acting on her own behalf and representing her son, the question of whose sanity was involved, there was sufficient to call in question the right of the counsel to bind her or her son, and it was a matter which the doctor could have set at rest by requiring for his attendance the request of the defendant or his mother. Notwithstanding the notice, which he had, however, he did nothing in the way of ascertaining the defendant’s wish, but at the request of counsel came to New York, for which he now seeks to charge the defendant. We do not think that upon this evidence there was sufficient to justify the submission of the question to the jury as to whether or not the counsel had implied authority, it appearing that neither the mother, who was acting for the defendant, nor the defendant himself, desired the doctor’s attendance, and in the letter from which we have quoted, which the doctor admits he received, the mother expressly stated that if he came it must be at his own expense.

"We think the disposition made by the trial judge was right, and that the exceptions should be overruled and the motion for a new trial denied, with costs.

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

Exceptions overruled and motion for new trial denied, with costs.


text:
    The State Bank of Lock Haven, Respondent, v. James W. Smith and Another, Appellants, Impleaded with Others.

      Accommodation note— the obligation of the maker is that of a surety — laches — effect of, on the holder — profits realized by a judgment creditor from a purchase of real estate — extra allowance.

    Where two .individuals exchanged their promissory notes, each payable to the order of the other, for the same amount, and each has the note payable to him discounted for his respective benefit, such notes are not accommodation notes. '
    Where a note is made by the maker thereof for the accommodation of the payee, and the payee after having procured the note to be discounted fails, any payments made by him or securities given by him to the bank discounting the note inure to the benefit of the maker whose obligation is that of surety. The holder of negotiable paper loses no right against the surety thereon by merely remaining passive, and the act of the president of a bank in obtaining upon his individual judgment a priority of claim upon the personal property of the person primarily liable on a note held by the bank, prior to the obtaining by the bank of a lien upon such property, does not make the bank liable for a breach of duty and chargeable with the amount that would have been realized had the bank’s judgment attached equally with that of its president upon the personal property of the person primarily liable o.n the promissory note.
    A judgment creditor who purchases real estate of his debtor, sold under execution, for a certain amount, should only be charged as having received on his judgment the amount for which such real estate sold under the execution, and not the amount for which he has subsequently resold the same.
    An action was brought upon certain promissory notes, the plaintiff asking judgment for the whole amount thereof on the theory that they were business paper. The defendant claimed that they were accommodation notes and insisted ' that the complaint should be dismissed. A judgment was rendered in favor of the plaintiff in which it was adjudged that all hut one of the notes were accommodation paper and an additional allowance was granted to the plaintiff in addition to costs. No offer to allow judgment to he taken was made on behalf of the defendant.

      Held, that as the case was one in which difficult questions were involved, the granting of an extra allowance to the plaintiff was proper.
    Appeal by tbe defendants, James W. Smith and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on, the 17th day of September, 1894, upon the report of a referee, and also from an order of the Supreme Court, made at the New York Special Term and entered in said clerk’s office on the 17th day of September, 1894, granting the plaintiff an extra allowance.
    It appears from the pleadings and findings that the plaintiff is, and for many years has been, a banking corporation organized under the laws of Pennsylvania, and doing business at Lock Haven in Pennsylvania. That the defendants James W. Smith and Wilbur P. Smith during the same time were co-partners doing business under the name of J. W. & W. P. Smith, in Brooklyn in this State, and that-the nominal defendants, Chandler P. Wainwright and Willis Bryant, were co-partners doing business under the firm name of Wainwright & Bryant, in Philadelphia.
    The twelve notes held by the plaintiff on October 24, 1889 (of which the notes in suit are merely renewals), were dated from June 21, 1889, to September 17, 1889, and were made by the defendants Smith to the order of the defendants Wainwright & Bryant, indorsed by the latter and discounted by the plaintiff.
    It was found by the referee that at or shortly prior to the times when defendants Smith made and delivered to Wainwright & Bryant these twelve notes, said Wainwright & Bryant made and delivered to defendants Smith their twelve notes of like date, tenor and terms, and for like amounts, and payable to the order of J. W. & W. P. Smith; the notes made by Wainwright & Bryant being sent to the Smiths in letters which in each case say substantially: “Inclosed please find our note (describing it), for which please send us duplicate,” and the Smiths then returning their own notes as requested.
    It was also found that these notes were'thus exchanged pursuant to an arrangement made in the latter part of 1884, at the request of Wainwright & Bryant, they promising the Smiths to send to them upon the maturity of the notes an amount of money equal to the face of the notes, unless said Smiths should have given notice that they had used any of the notes made by Wainwright & Bryant, each party to have the right to use any of the exchanged notes.
    It appears that after this arrangement was made defendants Smith and Wainwright & Bryant began exchanging their paper thereunder, and so continued to do up to about October 24, 1889. The notes so made by Wainwright & Bryant and sent to the Smiths were payable in Philadelphia, and the notes so made by defendants Smith and sent to Wainwright & Bryant were j>ayable at the Smiths’ office in Brooklyn. Wainwright & Bryant were accustomed to and did send to defendants Smith money for the notes as agreed, and defendants Smith were accustomed to and did thereupon return Wainwright & Bryant’s paper to them, except in a few instances in which defendants Smith made use of Wainwright & Bryant’s paper by procuring the same to be discounted.
    The Smiths invariably paid all the notes made by them according to their tenor, at their office, until after the failure of Wainwright & Bryant, and Wainwright & Bryant £>aid, according to their tenor, at their office, such 'notes of theirs as the Smiths had liad discounted, and for the remaining notes sent the cash to the Smiths up to the time of their failure.
    At the time of Wainwright & Bryant’s failure, October 24,1889, the plaintiff held the twelve notes, of which these in suit are the renewals; the defendants Smith held eleven of the counterpart notes made by Wainwright & Bryant, and the remaining note, one dated August 6,1889, for $1,145.13, was held by the Eleventh Ward Bank, which had discounted it for the defendants Smith. The Smiths afterwards took up this note.
    At the request of the defendants Smith the plaintiff has. three • times renewed the twelve notes held by it, the Smiths each time paying the interest or discount for such renewal, each renewal note being made and indorsed in the same form as the original note.
    One William A. Simpson was the ‘president of the plaintiff bank, its largest stockholder and practically its manager. He was also and had been for several years the financial backer of Wainwright & Bryant; lie had loaned them $50,000, and was the accommodation indorser on their paper to the extent of from $85,000 to $185,000 more. He received from them a royalty or definite payment, called “ stumpage,” on each load of timber cut, ostensibly as compensation for advice given in the management of their business. When Simpson loaned them the first $50,000, in November, 1884, they gave him a judgment note therefor, dated November 14, 1884, due one day after date, and containing a warrant of attorney, which under the laws of Pennsylvania enabled Simpson to enter judgment against them at any time. Por subsequent indorsement Simpson got two other judgment notes, one dated January 14, 1885, for' $60,000, and another dated August 19, 1887, for $75,000, each payable one day after date.
    In addition to these obligations to Simpson, Wain wright & Bryant, on the 24th day of October,' 1889 —which was the day of their failure — had paper to the extent of $122,313, including that made by the defendants Smith, discounted in the plaintiff bank. On October 24, 1889, Simpson with one Corss, the attorney for the plaintiff bank, met Wain wright & Bryant in Philadelphia, and it was there determined that they were unable to continue in business, and that they should give to the bank a judgment note as security for the paper that had been discounted by the bank for Wain wright & Bryant and which bore their indorsement. A list of the notes discounted in the bank was called off. Those indorsed by Simpson were omitted, because he already had a judgment note to secure them. A judgment note for $122,313 was then and there given to the bank, dated that day, payable one day after date. The judgment note was given as security for all the paper, including that made by defendants Smith, indorsed by Wain wright & Bryant, and then lying in the plaintiff bank, except the paper indorsed by Simpson. Simpson then had judgment notes several years old in his possession, and was president of the bank and acted for it. There were no directions given as to the application of the avails of the judgment notes. Simpson said that he was going to enter judgment on the bank’s notes; nothing was said about his own.
    On the twenty-sixth of October Mr. Simpson, through Corss, the attorney, caused judgments on the three notes already held by him and the note handed to him for the plaintiff to be entered, putting his own three judgments first and issuing execution upon them first, so that they obtained a priority under the laws of the State of Pennsylvania as to the personal property of Wainwright & Bryant, but shared ¡pro rata with the judgment in favor of the plaintiff as to the real estate. According to the law of Pennsylvania judgments entered on the same day participate equally in the avails of funds realized through execution against real property. As to personal property the execution first issued takes precedence.
    At the sheriff’s sale, had in the month following, under these four executions and another for a small amount, Simpson bought in a large part of the personal property and practically all the real estate, the personal property being sold for $74,698.50 and the real estate for $26,490. The proceeds of this sale of the personal property, after deducting fees, etc., were paid to Simpson by crediting the amount to him on account of his purchase at the sale, and the proceeds of the real estate were disposed of by taking Simpson’s receipt as president of the bank for $12,000 thereof, applied upon the execution upon the plaintiff’s judgment, and by crediting the balance to Simpson on account of his purchase. An execution upon plaintiff’s judgment was also issued to Philadelphia, and certain property there was bought in by the plaintiff for $150, and was afterwards resold by it for $5,000.
    In addition, Simpson received certain cattle stock which was afterwards sold for $5,000. To enable Simpson to close his purchase with the sheriff without paying cash, a formal assignment of the plaintiff’s judgment was made to him, but by agreement between ■Simpson and the bank it was provided that after payment-of his own claim he would pay the full amount of the indebtedness of Wainwright & Bryant, as drawers and indorsers of notes discounted by the bank, and not otherwise paid or secured to be paid.

      Abel E. Blackma/r and Edwa/r'd B. Fowler, for the appellants.

      William J. Famning and Frederick H. Mam, for the respondent.
   O’Brien, J.:

The causes of action were upon twelve promissory notes made by the defendants Smith to the order of Wain wright & Bryant, and by them indorsed and delivered to plaintiff. There was no contest as to the making and delivery of the notes, or as to the title of the plaintiff to the same, but it was contended that the defendants Smith were accommodation makers, ancl that the notes were made for the accommodation of Wainwright & Bryant. It was further contended that Wainwright & Bryant placed certain securities with the jilaintiff to secure the payment of these notes with others, and that the plaintiff had realized certain sums of money upon said securities, and had negligently wasted and destroyed a part thereof, and that the defendants Smith were entitled to have the amounts realized by the plaintiff on such securities applied to the payment of these notes pro rata with others, and also that the value of the securities wasted by the plaintiff should be credited on these notes.

The referee found, against the contention of jilaintiff, that all the notes except one were accommodation paper; that the plaintiff had received $22,000 applicable to the payment of these notes, with others; and directed that $3,389.48 be credited pro rata upon the principal of the notes. The plaintiff does not appeal, but the defendants Smith do, claiming that they were entitled to a larger credit, and that all the notes were accommodation paper.

In holding that eleven of the twelve notes were accommodation notes, the referee reached a conclusion most favorable to the appellants, and with such conclusion, we understand, no fault is found, it being insisted, however, that the twelfth note also should have been included in the same category. In excluding it, we think the referee was clearly right. Hnder the terms of the agreement, the defendants Smith had a right to use the notes sent them by Wainwright & Bryant in exchange for notes of similar amount and tenor which they had loaned to that firm. If they had availed themselves of this privilege and had used the notes, there can be no doubt, upon authority, that they would be regarded as business notes, because given in exchange for other notes and used for the purpose of raising money. Where, however, but one was used and the other eleven retained, we find no reason for relieving the defendants Smith from liability as makers of business paper. It appealing, then, as to one of the Wainwright & Bryant notes, i. ó., the one dated August 6, 1889, for $1,154.13, that the defendants Smith, for their own benefit, had it discounted at the bank, the referee was right in holding that the counterpart note given to Wainwright & Bryant, which was discounted by tlie plaintiff, was included among the twelve notes sued upon and, unlike the other eleven, was not an accommodation note.

The other eleven notes being accommodation notes, the referee held that the ultimate duty of paying them rested on Wainwright & Bryant, and that any payments made by the latter or securities given by them inured to the benefit of the defendants Smith, whose obligation was that of sureties. To the extent to which they were entitled to the benefit of the security thus given, which consisted of the -judgment note for $122,313, covering these and other notes of Wainwright & Bryant, the referee allowed the pro rata amount realized under the judgment upon the sale of the real property, and $10,000 in addition realized from two other sources, making up the' amount of $22,000, which he held was applicable to the payment of the notes.

The appellants claim, however, that they were entitled to a greater credit, and that, in addition'to the proceeds of the real estate, there should have been applied upon the notes the pro rata share of the proceeds of the personal estate of Wainwright & Bryant which the plaintiff should have realized upon the judgment given to it to secure the notes. Whether this contention is right depends entirely upon the determination of the question as to whether, under the law, Simpson, who was president of the bank and to whom Wainwright & Bryant were indebted in a large sum of money, for which he held their judgment notes, violated a duty, which, as president of the bank, he was chargeable with, towards the appellants, in giving himself a preference out of the avails of the personal property.

It was in the power of Simpson to seize all of Wainwright & Bryant’s property at any time during a long period prior to the giving to him of the judgment note for the bank. Had he reaped the advantage of his position by so seizing the property, the appellants as against him would have no legal right to complain. It may be that considering his relation to the bank and the use that he had made of its funds, it might compel him in some way or in some form of action, to make good the loss which, under his management, the bank sustained. Without, however, discussing the lights of the bank, it is clear that no third party, situated as the appellants are, could successfully assail Simpson’s right to obtain, were he so disposed, a preference in respect 'to Wainwriglit & Bryant’s property over all other creditors. It must be remembered too that in the disposition of their property among their creditors, Wainwriglit & Bryant selected Simpson as the person who was to make it and constituted him their agent for that purpose, and they had a right to instruct him, had they seen fit, as to the manner in which the property should be applied; or they could leave it, as they did, to his discretion, in exercising which the appellants would liave no more right to complain than if the disposition had been made by Wainwright & Bryant themselves. As correctly said, therefore, by the referee: In the absence of proof, the act of Simpson may be considered to be just what Wainwriglit & Bryant intended. Hence, the bank cannot be held to stand as having received in payment of the Smith notes that which Simpson managed to apply to his notes through the instrumentality of Wainwright & Bryant.” As urged by the respondent, the bank owed no duty to the Smiths requiring it to take the judgment note at all, or to enter judgment thereon in an endeavor to thrust aside. Simpson’s security, which was prior in equity and in point of time, even if it had the power to do so. The question here raised is, not as to what rights the bank might claim against Simpson on the facts disclosed, but solely whether the Smiths, as so-called accommodation makers of the notes held by the bank for which it Lad been paid full value, can hold the bank liable for something which it neither did nor permitted. It is well established that the holder of negotiable paper loses no right against the surety thereon by merely remaining passive. (First Nat. Bank of Buffalo v. Wood, 71 N. Y. 405, 411; Smith v. Erwin, 77 id. 466.) We do not think that the act of Simpson and Corss, although they were the president and the attorney respectively of the bank, in permitting Simpson to obtain a priority upon the personal property, made the bank liable for a breach of duty and chargeable, as though lost, with the amount that would have been realized had the bank’s judgment attached equally with Simpson’s upon the personal property.

Another grievance asserted by the appellants consists in the refusal of the referee to find that the bank had realized $20,000 on the execution against the real property and finding instead that it had realized only $12,000. Mr. Simpson, the president of the bank, testified that $20,000 was realized on the real property; but that this statement was made from memory, and that it was incorrect, is evident from the original documents, which include the receipt of Mr. Simpson and the sheriff’s return. Besides, it appears that the real estate was sold for $26,490 ; and regard being had to the amount of the four judgments, the bank’s pro rata share of the proceeds would be about $12,000, the amount found by the referee. There being a conflict between the oral testimony and these written documents, we think, upon consideration, that the referee was right in following the latter as against the statement of the witness.

Although the referee has charged the plaintiff with $22,000 as having been realized upon the bank’s judgment, there is a serious question whether the entire value of the collateral security, including the judgment note, and the entire amount with which it is chargeable in favor of the appellants, was more than $12,150. The $22,000 found by the referee was made up) of $12,000, the proceeds of the execution issued on the bank’s judgment to the sheriff of Jefferson county, and of $5,000, which he charged to the bank as being the amount realized on the resale by it of the property sold under the execution issued to the sheriff of Philadelphia, and which it bought in at such sale for $150, and of $5,000, the amount realized from the sale of certain cattle stock which Wain wright & Bryant had given to Simpson at the date of their failure. The amount of $150 realized on the sale of the Philadelphia real estate would seemingly be the proper credit which the bank was entitled to allow, because any profits realized on the resale thereof could no more be reached as a security in appellants’ favor than would a loss, had it been made upon such resale, have been chargeable to it, and the referee, instead of charging the bank with $150, has charged it with $5,000 in apapellants’ favor. The $5,000, proceeds of the cattle stock, as testified to by Bryant, was given by him to Simpson, as he understood individually for his indebtedness. This amount, however, was appropriated by Simpson to the bank, under their agreement pro tambo, on the Wain wright & Bryant notes, and the referee allowed the payment. It will thus be seen that the referee reached upon these items a conclusion most favorable to the appellants.

The remaining question urged upon this appeal is in regard to the order granting to the plaintiff an allowance in addition to costs of $386.01. In view of the amount and the character of the questions involved, this cannot be regarded as an excessive allowance. It is insisted, however, by the appellants that they should not be punished, by way of an allowance granted against them, for having interposed equitable defenses which in part have been sustained. The answer to this seems to us apparent. It is true that the plaintiff asked a judgment for the full amount, of the notes, upon the theory that they were business paper, and that the appellants took the opposite view, that they were accommodation notes, and while the former demanded the full amount, the appellants insisted that the complaint should be dismissed. While the plaintiff did not obtain the entire relief .demanded, we do not think it can be claimed that it has not succeeded in the action. Apart from this, if the appellants had desired to limit their liability for costs, the Code provides a way by permitting a j>erson to make an offer of judgment, which if not accepted would place the liability for costs upon the other party. This the appellants did not do, but litigated the question of plaintiff’s right to any recovery, and the plaintiff having recovered and been awarded costs, in view, as already said, of the difficulty of the questions involved, we think it was entitled to the allowance made.

In concluding, we think it proper to say that we might well have let this appeal rest upon the clear and satisfactory opinion of the referee, but as the appellants with much force and earnestness have pressed the questions again upon our consideration, we feel that a brief reference to all the questions presented upon the appeal was proper.

We think the conclusion reached by the referee was right, and that the judgment and order should be affirmed, with costs.

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

Judgment and order affirmed, with costs.


text:
    The People of the State of New York ex rel. The Bleecker Street and Fulton Ferry Railroad Company, Respondent, v. Edward P. Barker and Others, Commissioners of Taxes and Assessments of the City and County of New York, and The Board of Aldermen of the City of New York, Appellants.

      Taxation of corporations — basis thereof.

    The market value of the shares of stock of a corporation is an erroneous basis for determining- the amount of its capital liable to taxation. It is the value of corporate assets constituting the capital and not the value of its shares in the hands of individual owners which is the subject of taxation.
    Appeal by the defendants, Edward P. Barker and others, as commissioners of taxes and assessments of the city and county of New York, and The Board of Aldermen of the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of December, 1894, vacating and setting aside an assessment against the personal property of the relator and directing the repayment by the defendant The Board of Aldermen of the City of New York of a portion of the tax paid by the relator thereon.
    In this case a certiorari ivas issued to review an assessment for taxation on the personal property of the, relator upon a valuation of $133,050. The record consists of the petition for the writ and the return thereto, from which it appears that the relator made application to the commissioners to have said assessed valuation corrected, and in support of such application submitted a statement, in writing, upon a printed blank furnished by the commissioners, which is as follows:
    “Department of Taxes and Assessments, j Commissioners’ Office, - v Staats Zeitung Building, Tryon Row. )
    “ Please state the full name of the corporation.
    “ Statement made and delivered to the Commissioners of Taxes and Assessments of the city and county of New York for and in behalf of .the Bleecker Street and Fulton Ferry Railroad Company of the city of New York, showing its condition for the purpose of assessment on the second Monday of January, 1890.

      Total gross assets................................. $
    Capital stock actually paid, in or secured to be paid in..
    Amount of surplus' earnings........................
    Rate of dividend for last year or last annual dividend..
    “ Is tbe Company assessed by the State under chapter 361, Laws of 1881, and the amendatory acts? Yes; paid by the Twenty-third Street Railway Co.
    “ Liabilities in detail, as follows:
    “ The whole rights of this Company are leased to the Twenty-third Street Railway Company. The Bleecker Street Company has no assets and no real estate.
    “Assessed value of real estate — Being foundation, roadbed and superstructure.
    “ Describing particularly by ward numbers.
    “Ward Map No. 2010, 2d ward.................. $7,000 00
    “ 1502, 4th “ .................. 4,000 00
    “ 1303, 6th “ ...... 6,000 00
    “ . 5003, 9th “ ................. 10,250 00
    “ 4464B, 14th “ .................. 6,100 00
    “ 4002, 15th “ .................. 6,800 00
    “ 4704, 16th “ .................. 6,800 00
    $46,950 00
    “Amounts invested in the stocks of other corporations
    which are taxed upon their capital................$ None.
    “Amount invested in United States securities........ None.
    “ (If the stock of the Company is worth less than par, state the actual value, and give the facts under oath, which will justify such estimate of its value.)
    “ The highest price at which the stock has sold during the year is $25 per share, and most of the sales-have been under that price.
    “ The principal office or the place of transacting the financial business of the said corporation is situated in the Sixteenth Ward of the City of New York, at No. 621 West Twenty-third street.”

      Da/vid J. Deem, for tbe appellants.

      Thomas P. Wiolces and Jolm F. Lambías, for the respondent.
   O’Brien, J.:

It is insisted upon this appeal that the writ of certiorari should be quashed because it appears that none of the grounds specified in the petition was presented to the assessors, and those not specified must be considered waived, and because upon the application to the assessors the assessment as made was warranted by the facts disclosed.

The question of the sufficiency of the qietition and the return we think is disposed of adversely to the appellants by the case of People ex rel. Commercial Mut. Ins. Co. v. Coleman (144 N. Y. 483). As to the facts disclosed warranting the assessment, we think it therefrom appears that the method resorted to was erroneous, in that it was based upon the market value of the shares of the corporation, which, as held in People ex rel. The Union Trust Company v. Colemam (126 N. Y. 433), was an erroneous basis for determining the amount of the capital of the corporation liable to taxation. It was therein held that it is the corporate assets constituting the capital, and not the value of its shares in the hands of individual owners, that is the subject of taxation.

We think, therefore, that the order was right and should be affirmed, with costs.

Van Brunt, P. J., concurred.

Order affirmed, with costs..


author: Pee Curiam :

text:
    Elizabeth Nesbit, as Executrix, etc., of Robert W. Nesbit, Deceased, Respondent, v. Halpern Albert, Appellant.

      Guaranty on a lease■ — ■filling in blanks in the lease after it is delivered to the lessee to give to lessor — effect on the guarantor’s liability.

      A. surety on a lease liaving turned over to the lessee therein named the lease bearing the contract of guaranty signed by him and witnessed in due form cannot thereafter, as against the lessor coming into possession of the lease and the contracteof guaranty, without any knowledge that the blanks had been filled up therein subsequent to its execution, assert that fact as a defense to his liability thereunder.

      A surety Having signed a contract of guaranty, which, asserted the existence of a money consideration from the lessor, and the further consideration of a letting of the premises to the lessee, and delivered the same to the lessee, duly witnessed, must he held to have authorized its delivery to the lessor as a completed instrument, and if he seeks to he relieved from liability under his contract, on the ground that the instrument has been altered since its execution, he must show that the instrument was altered after it came into the possession of the lessor.
    Appeal by tbe defendant, ITalpern Albert, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in tbe office of tbe clerk of the county of New Tork on tbe 28th day of April, 1894, upon the verdict of a jury rendered by direction of tbe court after a trial at tbe New Tork Circuit, and also from an order made on tbe 24th day of April, 1894, denying tbe defendant’s motion for a new trial.

      A. H. JParTcJmrst, for the appellant.

      Edwcvrd B. ERll, for tbe respondent.
   Pee Curiam :

This action was brought to recover tbe rent unpaid under a lease, upon which tbe defendant was surety.

Sylvanus C. Boynton, prior to tbe execution of tbe lease, was in possession of the same premises as tenant, but as be was not prompt in making payment of tbe rent as it became due, be was required as a condition of a further leasing of tbe premises- to obtain a surety who should guarantee such payment. In due course he executed the lease himself and procured this defendant to become surety thereon.

He continued in possession under tbe new lease for a period of about nine months, but for a portion of tbe time be failed to pay the rent.

The direction of a verdict in favor of tbe plaintiff, tbe appellant says, was erroneous, in that there was sufficient evidence tending to show that the agreement was not filled out at the time of its execution by tbe surety to have at least presented a question for tbe jury.

It was not only proved by the subscribing witness and the lessee that the surety signed tbe contract of suretyship, out he admits it himself and concedes that be understood tbe purpose of it at tbe time of its execution.

Tbe defendant having turned over to tbe lessee tbe lease bearing the contract of guaranty signed by himself and witnessed in due form, he could not thereafter as against the lessor, coming into possession of the lease and the contract of guaranty, without any knowledge that the blanks had been filled up subsequent to execution, assert that fact as a defense. (Singer Manufacturing Company v. Drummond, 40 Hun, 260.)

Eor the same reason the attempt to swear the seal off of the contract at the time of its execution was not effective.

There was evidence, it is true, that the contract when signed by the surety did not bear a seal — sufficient evidence to have presented a question for the jury, if a favorable determination by them could have affected .the result. But the surety having signed the contract which asserted the existence of a money consideration from the lessor, and the further consideration of a letting of the premises to the lessee, and delivered the same to the lessee duly witnessed, must be held to have authorized its delivery to the lessor as a completed instrument, and if he seeks to be relieved from liability under his contract on the ground that the instrument has been altered ■ since its execution, he must show that the instrument was 'altered after it came into the possession of the lessor.

No other rule would be safe, and there is no authority asserting the existence of such a rule. This, defendant did not attempt to show.

The judgment should be affirmed, with costs.

Present -- Van Brunt, P. J., O’Brien and Parker, JJ.

Judgment affirmed, with costs.


author: Tan Brunt, P. J.:

text:
    Charles G. Mayer, Respondent, v. Emanuel Frankfeld, Appellant.

      Contract signed with a name, common to an individual and a film — panol evidence competent to explain it — non-joinder of dormant partners.

    In an action brought upon a written contract signed with the name of an individual, which was also the name of a co-partnership, there is a patent ambiguity upon the face of the contract, to eliminate which parol testimony is competent to show whether the contract was made by the individual or the co-partnership.
    In actions against co-partners, any one of the co-partners, if sued alone, may plead a defect of parties.

      If a creditor of a co partnership does not know of the existence of dormant partners, he need not make them parties to an action brought by him against the partnership, but if he does know of their existence he must make them parties.
    Appeal by tbe defendant, Emanuel Erankfeld, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of June, 1894, upon the verdict of a jury, rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 21st day of June, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Leo G. Rosenblatt, for the appellant.

      Isaac LLugeT/mcm and G. Dell. Brower, for the respondent.
   Tan Brunt, P. J.:

This action was brought to recover upon a contract made by the plaintiff with E. Erankfeld. The defendant by his answer, amongst other tilings, set up a defect of parties, alleging that E. Erankfeld was the name of a firm consisting of Emanuel, Louis and Benjamin Erankfeld, who were living and residing within the city of New York. Upon the trial the defendant sought to prove that prior to the entering into this agreement the plaintiff had notice of the fact of the co-partnership, and that the business was done under the name of E. Erankfeld, and that the contract was made for the purposes of that business. This evidence was excluded by the court upon the apparent ground that the contract upon its face was an individual contract of E. Erankfeld, and that evidence to show that E. Frankfeld was the name of a firm was incompetent for the purpose of showing who the real contracting parties were.

Upon this appeal this ruling is sought to be upheld by the respondent on the ground that E. Frankfeld having executed this contract in his individual name, he will be held personally liable as contracting agent, whether he is shown to be an agent or not. We think that the principle relied on has no application whatever to the case at bar. It was a question of fact as to whether E. Erankfeld executed this contract individually or in the name of the firm. Simply because the names coincided, he was not precluded from giving such evidence. There being an individual E. Frankfeld and a firm E. Frankfeld, there was a patent ambiguity upon the face of the contract, to eliminate which parol testimony was competent. It is a familiar principle in cases against co-partnerships that any one of the co-partncrs, if sued alone, may plead a defect of parties, and that this is a good plea when sustained by proof. In the case at bar the defendant pleaded defect of parties, giving the names of the absent parties and alleging that they were residing in New York. His plea being good in form, he offered to prove it, which was denied.

The ruling of the court seems to have proceeded upon the theory that where there are dormant partners, that is, where there are partners whose existence is not disclosed by the title of the firm even in the collective form of & Co.,” a party bringing an action against such firm may make as party defendant the individual whose name appears in the title of the firm, although he may know of the existence of other partners. That this rule is erroneous seems to be clear from the opinion of the court in Marvin v. Wilber (52'" N. Y. 272), where the rule is recognized in respect to dormant partners that they need not be sued if the jilaintiff did not know of their existence; the converse of the proposition being equally true, that if he knows of the existence of a dormant partner he must make him a party. In the case at bar, evidence tending to prove that the plaintiff had knowledge of the existence of the other partners at the time of the making of this contract was excluded, which was error.

As for the contract being an individual contract of the defendant sued, it does not so appear upon its face. It is apparent from the paper as originally drawn that it was the understanding that the plaintiff was contracting with a co-partnership. He made a mistake in the co-partnership name, and the only alteration was in giving the true co-partnership name.

The claim which is presented, that the affidavit verified by the defendant and filed in the building department estops him from asserting that the contract with the plaintiff was a firm obligation, does not seem to have any foundation in law. There is not the slightest evidence that the plaintiff acted upon this affidavit, or that it was made for the purpose of his taking any action upon it; and, therefore, no elements of any estoppel prevail. It seems to be manifest that no other rule except such as has been stated in reference to this matter can obtain.

The firm of E. Erankfeld claimed to have a counterclaim arising out of this contract, and this counterclaim was excluded upon the ground that the right of action for the counterclaim connected with the doing of this work rested in the firm, whereas the obligation to pay for it rested in the individual..

It seems to be .apparent that error was committed and that the judgment, therefore, must be reversed and a new trial ordered, with costs to appellant to abide the event.

Parker and O’Brien, JJ., concurred.

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


author: Per Curiam :

text:
    Howard Cooper, Respondent, v. The Manhattan Railway Company and Another, Appellants.

      Damages from, the operation of an elevated railroad — the property must abut — judicial notice of the size of lots in New 'Tor7c city.

    Ordinarily, tlie fact that premises do not abut upon an elevated railroad would bar the recovery by the owner thereof from the elevated railroad company of the fee damages sustained by such property by reason of the construction and operation of such road.
    In an action brought to recover damages sustained by the owner of real estate by reason of the construction and operation of an elevated railroad, the court may take judicial notice of the fact that lots in the city of New York are ordinarily at least seventy-five to one hundred feet in depth, and that the buildings on comer lots frequently cover the whole lot in the business portion of such city.
    Appeal by the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of July, 1894, upon the decision of the court rendered after a trial at the New York Special Term.

      JuUen T. Davies and Arthur O. Townsend, for the appellants.

      Leo O. Dessar and E. M. Felt, for the respondent.
   Per Curiam :

Tlie premises in question are situated on the northeasterly corner of the Bowery and Houston street. There is an elevated railroad station there, the stairs going down into Houston street. The premises for which damages were given were known as No. 281 Bowery and Nos. 92, 91 and 96 East Houston street. No. 281 Bowery was a three-story frame building, with a brick front, twenty-two feet on the Bowery and thirty-two feet on the street. Nos. 92, 91 and 96 East Houston street were two-story brick stores, twenty-two feet deep by about thirteen and one* half feet front. No rental damage was allowed, but fee damage to the amount of $5,000 was given.

The only question necessary to be considered is the point made that Nos. 92, 91 and 96 East Houston street did not abut upon the elevated railroad, and, therefore, no damages could be awarded as to them. Under ordinary circumstances, of course, this would be a bar to recovery. But the improvements upon the lot in question are entirely different from those 'which would be suitable for the value of the lot; and when the lot comes to be improved, undoubtedly a single building will be erected covering thd whole' of the premises in question and fronting on the Bowery. The court may take judicial notice of the fact that lots in the city of New York are ordinarily at least seventy-five to one hundred feet in depth, the buildings on corner lots frequently covering the whole lot in the business portion of the city. And although these premises may be divided in the manner stated, for the purpose of occupancy, yet in reality the buildings are upon the single lot fronting upon the Bowery. It would seem, therefore, that, in determining the question as to whether it had sustained fee damage, it should be treated as a single lot.

’While an examination of the testimony, showing, as it does, a large increase in value of the premises in question, might have led us to the conclusion, if the question of damages had originally been presented to us, that the plaintiff had not shown himself entitled to any damage, we think that, in determining the question as to whether the case shows that any damage has been sustained, we should bear in mind that the court below had the witnesses before it and heard their testimony, and was better able to judge of the weight of such testimony than we who have simply, the printed record before us.

It seems to us, however, that the award which has been made is higher than any of the evidence justifies, and should be reduced to the sum of $2,500.

If the plaintiff stipulates to reduce the damages to the sum of $2,500, the judgment appealed from as so reduced should be affirmed, without costs. If such stipulation is not given, the judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

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

On plaintiff stipulating to reduce damages to $2,500, judgment as so reduced-affirmed, without costs. In default of such stipulation, judgment reversed, new trial ordered, with costs to appellants to abide event.