text:
    WILLIAM E. STILLINGS, as Assignee, &c., Appellant, v. HUGH SMITH, Respondent.

      Set-off of judgments—Action commenced by assignor for benefit of creditors prior to, but judgments rendered thereon subsequent to, the assignment, right as to set-off—Onus of proof as to facts in bar of the motion to set-off.

    Judgments for costs recovered by a defendant against an assignor who assigns for the benefit of creditors, subsequent to the assignment, in actions commenced by the assignor previous thereto, may be set off against a judgment for damages and costs recovered subsequent to the assignment, in an action commenced prior thereto by the assignor, against the defendant holding the judgments for costs; it not appearing that there is not sufficient funds in the hands of the assignee to satisfy any lien of the plaintiff’s attorney upon the latter judgment.
    This, although the assignee in nowise identified himself or interfered with the actions in which judgments for costs were obtained.

      Facts claimed to constitute a bar to motion to set-off must be shown by the party claiming such bar.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 18, 1887.
    This is an appeal by the plaintiff from an order of the special term, entered December 11, 1886, granting a motion that two judgments entered in the court of common pleas in favor of the defendant and respondent and against Richard Taylor, the assignor of plaintiff, one.for $279.57 on December 4, 1885, and the other for $82.44 on September 11, 1886, and that $150,40 of a judgment entered in this court in favor of said defendant and against said Richard Taylor for $255.48 on October 16, 1886, making in all, with interest, the sum of $529.30, be set off against a judgment for said last mentioned sum of $529.30, entered in this court on October 22, 1886, in favor of said Richard Taylor, and against said defendant, Hugh Smith, in which action (being the above instituted one) plaintiff has been substituted, and that said judgment last mentioned be cancelled and discharged of record.
    Three actions were commenced by Richard Taylor, plaintiff’s assignor, against the defendant, one in the court of common pleas and two in this court. In the action in the common pleas, and in one of the actions in this court, the defendant recovered judgment for costs. From the judgment recovered against him in the court of common pleas, the said Taylor appealed, and judgment upon the dismissal of his appeal was duly entered against him for costs, making the three judgments in favor of the defendant and against said Taylor, above mentioned, the aggregate of which judgments exceeds the amount of the judgment above mentioned rendered against said defendant by the sum of $105.08. All the actions were commenced before, but the judgments therein were entered subsequent to the assignment for the benefit of creditors made by Taylor, and all the actions were prosecuted to judgment in the name of Taylor, the assignor. Taylor, plaintiff’s assignor, was financially irresponsible. The assignee made affidavit that he had never in any wise identified himself or intermeddled as assignee, or otherwise, with the proceedings or actions in which the judgments were rendered against Taylor, and refused to take the appeal to the general term of the common pleas.
    The court at special term, on granting the motion, delivered the following opinion:
    Ingraham, J.— The plaintiff, in the case of Taylor v. Smith, No. 2, having made' a general assignment for: the benefit of creditors, that judgment became vested in and owned by the assignee. The causes of action in the actions in which judgment was entered in favor of the defendant against the plaintiff, having been by the general assignment transferred to the assignee after the commencement of such actions, the assignee under section 3247 of the Code would be liable for the costs in the like case, and to the same effect as if he were the plaintiff, and the court has power, by order, to direct the person so liable to pay them. The assignee therefore being liable for the judgment entered in favor of the defendant against the plaintiff, and being the owner of the judgment entered in favor of the plaintiff against the defendant, a proper case is presented for a set-off. It does not appear that there is not sufficient funds in the hands of the assignee to satisfy any lien that the attorney for the plaintiff has upon the judgment in action No. 2. Motion should therefore be granted without costs.”
    It was not made to appear in the court below that the judgment in favor of the plaintiff had been appealed from, and that the appeal was pending. Nor was it made to appear that there was not sufficient funds in the hands of the assignee to satisfy any lien the plaintiff’s. attorney might have on the judgment recovered against the defendant.

      Archibald C. Shenstone. attorney, and of counsel for appellant, among other things, argued :
    I. There is no authority in the Code or other statutes, enabling the owner of judgments to have them offset under the circumstances of this case. Defendant’s relief, if any can be afforded him, must be sought in equity, and is not available by motion. Swift v. Prouty, 64 N. Y. 545. The right of set-off is only applicable to mutual claims. There is no mutuality between the judgments here. (1) The judgment of plaintiff is for an actual indebtedness, due and owing from defendant to the assignee of the original plaintiff. The judgments of defendant are merely for costs suffered in two independent actions by Richard Taylor, individually, and without the consent or knowledge of his assignee. (2) No right of set-off ever existed as between defendant’s judgments and plaintiff’s, because they were never mutual, i. e., other equities had intervened before both judgments had been obtained. Swift v. Prouty, 10 Hun, 232; Firmenich v. Barr, 1 Ib. 532 ; Taylor v. Mayor, 82 N. Y. 17; Myers v. Davis, 22 Ib. 493. (3) The claim of plaintiff which has passed into a judgment, and against which relief is sought, was assigned and transferred to the assignee by the general assignment of the original plaintiff December 2, 1885, and prior to the recovery of any of the judgments of defendant Smith. Hence, said judgments are not mutual, and never were. “If, before the demand of the party claiming the set-off becomes mature, the opposite claim has been assigned, whether the assignment carries the legal or only an equitable title, the right of set-off no longer exists.” Myers v. Davis, 22 N. Y. 493; Martin v. Kunzmuller, 37 Ib. 400 to 404 ; Wells v. Stewart, 3 Barb. 40; Beckwith v. Union Bank, 4 Sandf. 604, affirmed 9 N. Y. 211.
    n. The court erred in granting the motion ‘allowing the set-off on the grounds stated in the opinion. The assignment of the cause o.f action to make an assignee liable for the costs, must be an absolute assignment. The assignment, as in this case, to an assignee for the benefit of his creditors is not such an absolute assignment as will bring him within the liability for costs under Code § 3247. It is more in the nature of the assignment for a collateral purpose, as was held not to be within the meaning of that section in Dowling v. Bucking, 52 N. Y. 658; Peck v. Yorks, 75 Ib. 421. The case of Columbian Ins. Co. v. Stevens, 37 N. Y. 536, does not apply, because in that case the receiver continued the prosecution of the action after his appointment, while in this case nothing was done by the assignee, nor with his knowledge or approval.
    III. The onus was on the moving party to make out a proper case for set-off. (a) There is nothing to show that the judgments desired to be offset against each other were absolute, final and unappealed from. As a matter of fact the judgment in favor of this plaintiff had been appealed from, and the appeal was then and still is pending. Where an appeal is pending there cannot be set-off. Pierce v. Tuttle, 51 How. 670 ; De Figamere v. Young, 2 Robt. 672; Prouty v. Swift, 10 Hun, 233. (5) Nothing appears in any of the papers showing that at the time Taylor made the general assignment he was the owner of the causes of action in the actions which resulted in the judgments in favor of the respondent. The onus was upon him, such respondent, to prove that those causes of action belonged to Taylor at the time of his assignment to this appellant and passed by such assignment, before he could have them offset against a judgment which it was admitted passed to and was claimed by the assignee, (c) If the court was correct in holding that this was a case in which under Code § 3247 the court could by order compel the assignee to pay the costs, yet it was necessary in order to give the respondent the right on motion to set off his judgments against a judgment which had previously been assigned to this appellant, to first procure an order compelling such payments of costs by the assignee. The court could not pass upon the rights and equities of this assignee as to his liabilities to pay such costs on the motion as made. There should have been a prior, independent motion for such relief.
    IV. The assignment of the cause of action in this action by the original plaintiff, Richard Taylor, to this plaintiff, as his assignee, was an assignment subject to the lien of the attorneys of Taylor, and the rights of such attorneys to such lien should not be foreclosed and cut off by tins motion (Code § 66).

      Norwood & Coggeshall, attorneys, and Carlisle Nor-wood, Jr., of counsel for respondent, argued:
    I. Were both parties equally responsible financially, the right to set-off would be clear. Barbour on Set-off, 33; Montagu on Set-off, 6; Baker v. Hoag, 6 How. 201.
    II. That right is much stronger when, as in this case, one of the parties, and that one the party particularly resisting, is financially irresponsible, so that the respondent would be compelled to lose the whole or the greater part of his claim while paying in full that against him. Holbrook v. Receivers Am. F. Ins. Co., 6 Paige, 231; Willard’s Equity, Potter’s ed., Set-off; Simson v. Hart, 14 Johns. 74; Smith v. Felton, 43 N. Y. 420; Davidson v. Alafaro, 16 Hun, 353.
    HI. If, as between the original parties the position contended for in this appeal could not be maintained, what greater right or equity has the plaintiff herein than his assignor could have claimed or enforced ? As assignee he takes the rights, and those only which his assignor had. Burrill on Assignments ; Willard s Eq., Potter’s ed., 467; Murray v. Lylburn, 2 Johns. Ch. 441; Douglass v. White, 3 Barb. Ch. 621; Curtis v. Leavitt, 15 N. Y. 195; Van Heusen v. Radcliffe, 17 Ib.
      580; Griffen v. Marquardt, etc., 17 Ib. 28 ; Leger v. Bonnaffe, 2 Barb. 475 ; Warren v. Fenn, 28 Ib. 333.
    IV. By making a general assignment for the benefit of creditors, all the causes of action in the actions then pending became vested in his assignee, and the judge below was right in deciding that under section 3247 he, said assignee, became liable for costs as though he were plaintiff, and the court had power to direct him to pay them. Miller v. Faklin, 20 Wend. 630 ; Peck v. York, 75 N. Y. 42.
   Per Curiam.

Upon the facts as they were made to appear on the motion, the order is right and proper. If the appellant could have shown an additional fact, which within the authorities cited by him would have been a-bar to the motion, he should have done so.

The order should be affirmed with $10.00 costs and disbursements, upon the opinion of the learned judge at special term.


source: Caselaw Access Project

author: By the Court.—O’Gorman, J.

license: Public Domain

text:
    HORACE SECOR, Jr., et al., Respondents, v. MARY J. CLARK, as Exr’x &c., Appellant.

      Duress—Contract, relief from in equity.

    To constitute such duress as to justify a court of equity in setting aside a contract, it is'not necessary that there should be fear of bodily harm or peril. It is enough if there be threat and peril of pecuniary loss, to prevent which, the will of the party seeking relief is controlled and forced into the act from the consequences of which relief is sought.
    It appeared from the complaint herein that defendant had received $10,000, belonging to plaintiffs, which fact he concealed from them and denied; that at last, payment of said sum being demanded, he offered to pay $8,500 if plaintiffs would at once assign to him all their interest in the money, and threatened them with protracted litigation in defense of their claim against him, in case they did not immediately comply, which assignment plaintiffs unwillingly executed, believing defendant would cany out his threat.

      Held, on demurrer in an action to set aside the assignment and recover the $1,500 retained by defendant, that the complaint showed a good cause of action.
    Before Freedman, and O’Gorman, JJ.

      Decided June 14, 1887.
    Appeal from a judgment overruling defendant’s demurrer to the complaint, and granting relief as prayed for.
    The action was brought against Lemuel B. Clark in his lifetime. He demurred in person and as attorney, and an interlocutory judgment was entered, overruling the demurrer, with leave to answer in twenty days. The defendant died within the twenty days, and thereafter final judgment was entered against him. The action was revived, and his executrix substituted in his place as defendant, and an appeal taken.
    The facts appear in the opinion.

      G. W. Cotterill, for appellant.

      Horace Secor, Jr., for respondents.
   By the Court.—O’Gorman, J.

The essential facts as admitted by the demurrer are these:

Lemuel B. Clark collected a large sum of money, of which $10,000 belonged to the plaintiffs. He concealed from them that he had this money in his possession, and denied that he had it. Finally on demand being made on him that he should pay over to plaintiffs the $10,000 which belonged to them, he refused to pay, saying that he expected to be sued by them, and that, if he were sued, the case would never be settled or discontinued by his proposition. The day after making this threat, he agreed to pay the plaintiffs $8,500 upon their assigning all their interest in the money, and provided also that the transactions were closed at once. The plaintiffs, knowing that said Clark was unscrupulous, and believing that he would use all such devices to delay them in the progress of any action they might bring against him, as unscrupulous debtors usually resort to, and bearing in mind that it would take time to recover a judgment against him, that they might not be able to collect the judgment, and that there was hazard of losing all of the money if it remained in possession of the said Clark, unwillingly executed and delivered to said Clark the assignment he required, and received from him $8,500.

On these facts, the plaintiffs demanded judgment that the assignment by them to said Clark be produced and declared void, and that the defendant pay them the .sum of $1,500 with interest and for such other relief as might be just, etc.

The defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action.

The court at special term overruled the demurrer on the ground that the act of plaintiffs in executing the assignment was without consideration, was not voluntary, but was compelled by the declaration of said Clark that if he were sued he would put the plaintiffs to the indefinite delay of an action; that the transfer was apparent and not real; and that plaintiffs were entitled to the money remaining unpaid; and also on the ground that, in equity, an agent or trustee cannot claim, as against his principal or cestui que trust, any advantage gained by him by an inequitable use of his power as trustee.

The question on this appeal is whether the decision of the court below is right.

First, as to the competency of the complaint itself. It is well settled that all reasonable intendments will be indulged in support of the pleading demurred to.

From the allegations of the complaint here, it may be reasonably presumed that the plaintiffs intended to aver that, by reason of that declaration of the said Clark, and the serious danger of loss of the whole sum due to them threatened in case he carried his declaration into effect, the plaintiffs were forced against their will to agree to execute and to execute the release of their claim to said Clark, and to assent to his retaining $1,500, being their money to which he had no legal or equitable right whatever.

There is no room here for the argument that the transaction involved the compromise and settlement of a disputed claim. No allegation in the complaint, either directly or by necessary or natural inference, avers such a fact. There is no claim that said Clark had any right or title whatever to retain any part of the money of the plaintiffs which he unlawfully retained in his hands. All his course of dealing with the plaintiffs was hostile, deceptive, and fraudulent. He kept the fact that he held in his hands the plaintiffs’ money secret from them. He denied that he had it, and at last offered to pay, if they allowed him to retain $1,500, and threatened them with protracted litigation if they did not, at once, accept his terms, and they unwillingly yielded. All this is averred in the complaint and admitted by the demurrer.

The principles of law which seem applicable to such a case, are these : No contract is valid unless it have the voluntary assent of the parties to it. Harmony v. Bingham, 12 N. Y. 109. Where any unlawful influence exists which overrules and compels the will, such voluntary assent does not exist. The party thus overpowered has no free will. He stands in vinculis. He is not a. free agent, and not being equal to protect himself, a court of equity will protect him. A court of equity will protect against fraudulent advantage taken, and against imposition and oppression. 1 Story’s Eq. Jur. § 239. Equity will relieve, by setting aside an agreement, although there was no duress, when one of the parties has taken advantage of the situation of the other and used undue influence to force an agreement upon him. 1 Chitty on Contracts, p. 273.

Among the influences capable of overpowering the will and depriving it of its .freedom of action, none is more potent than fear of bodily harm or peril, and that is commonly called “duress; ” and in England the use of the term “ duress ” was, and is perhaps still, applied to such species of fear. It is held there that the influence sufficient to avoid a contract must be such as to create a reasonable fear of death or mayhem, and that fear of battery or trespass on property is not sufficient. Skeate v. Beale, 11 Add. & Al. 983.

. In the United States, however, this rigid and narrow rule has been, to a great extent, relaxed.

In Foshay v. Ferguson, (5 Hill, 158,) it was held that a contract procured by threats of destruction of property would be avoided on the ground of duress.

In McPherson v. Cox, (86 N. Y. 478,) the action was on a bill of exchange, drawn by the master of a ship, which bill he signed, because the plaintiff would not clear his ship or allow her to proceed on her voyage unless he did sign it. Held, that to make the contract' unlawful, it was not necessary that the person of the master should have been arrested or his goods or his vessel seized. It was enough that the contract was entered into to procure the liberation of the vessel, and the execution might well be imputed to illegal restraint. The refusal of the plaintiff to allow the vessel to leave the port until the bill was signed did constitute duT6SS.

In Baldwin v. Liverpool &c. Co., (74 N. Y. 128,) the common carrier refused to deliver property to the consignee, unless he paid an additional sum, not provided for in the contract. The court of appeals, in its opinion, says : “ It is not disputed that if the defendant was not legally entitled to exact the £50 for the transportation, the plaintiff-would be entitled to recover it back as having been paid under duress of goods.”

In Barry v. Equitable &c. Co., (59 N. Y. 592,) the assignment of a policy of insurance was obtained from the wife by undue influence of the husband. The court say: Where there exist coercion, threats, compulsion and undue influence, there is no volition. There is no, intention nor purpose, but to yield to the moral pressure for relief from it. A case is presented more analogous to a parting with property by robbery. No title is made through a possession thus acquired.” See also Scholey v. Mumford, 60 N. Y. 501; Stenton v. Jerome et al., 54 Ib. 485. ......... -

The principle underlying all these cases seems to be, that when injustice is perpetrated by means of improper and dishonest influences, so subduing the will of a party that it loses the power of resistance, the law will interpose in protection of the party thus imposed upon, either by refusing its aid to the wrong-doer, or by defeating and undoing the wrong and restoring to the' injured party what he has been deprived of.

The case at bar is, in its essential facts, similar to the cases cited above. In those cases, there was no threat or peril of bodily hurt or harm. Here also, as in those cases, there was threat and peril of pecuniary loss, to prevent which loss the will was controlled and forced into the act, from the disastrous consequences of which relief is sought.

As the case at bar is now presented, the plaintiff may receive in this action any relief and in any form to which on the facts admitted he may be entitled, whether that form be legal or equitable. Here, as in the cases above cited, the defendant’s testator, said Clark, held the plaintiffs at a great disadvantage, and he took the most effective means to make that advantage oppressive. Here, as in these cases, the fear of loss of money- or property, unless the disastrous condition were accepted, caused the unwilling submission.

The authorities cited by the learned counsel for the defendant have been examined, but do not seem to be in accord with the controlling decisions of the court of appeals of this state.

The judgment appealed from should be affirmed, but with leave to appellant to withdraw the demurrer and answer, on payment of costs within twenty days.

Freedman, J., concurred.


author: By the Court.—O’Gormar, J.

text:
    HORACE SECOR, Jr., et al., Appellants, v. MARY J. CLARK, as Exr’x., &c., Respondent.

      Specific lien in aid of collection of judgment—When party limited to execution.

    Where it appears that plaintiffs have recovered a judgment against defendant, based on a claim for money of plaintiffs wrongfully and in violation of law retained by Mm, the judgment not being against defendant in a fiduciary capacity, and the moneys retained not having been held in such capacity, and having been intermixed with his own' —there can be no specific lien declared on any portion of defendant’s property in aid of the collection of such judgment, and plaintiffs’ remedy is limited to an execution against defendant’s property.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided June 14, 1887.
    Appeal-from judgment sustaining a demurrer.
    The complaint herein alleged the commencement of an action by the present plaintiffs against Lemuel B. Clark, this defendant’s testator; and set forth at length the complaint therein (the facts of which are fully stated in the opinion of the court in the last reported case, ante p. 494); the entry of judgment therein that the assignment there in suit was void, and that plaintiffs recover the sum of $1,667.31; the death of the defendant therein, and the appointment of the defendant here as his executrix—and proceeded as follows : “ That said Lemuel B. Clark deposited the $10,000 above mentioned in the Hanover National Bank, on or about February 23, 1886, to his own account, and paid these plaintiffs the $8,500 above mentioned therefrom; and that the balance of $1,500 remained therein ; and that as these plaintiffs are informed and believe, said Clark continued to make deposits to his said account and to draw therefrom, to the time of his death, and that the defendant herein, after obtaining letters testamentary, as above alleged and by virtue thereof, drew from said bank the sum of $3,000 or thereabouts, and closed said account of said Lemuel B. Clark with said bank. That payment of said sum of $1,500, with interest from February 25, 1886, has been demanded of said defendant herein, and that no part thereof or of said judgment has been paid. Wherefore these plaintiffs demand judgment against said defendant, that the above judgment be declared a lien upon the balance so drawn by her from said bank, to the extent of said $1,500, with interest from February 25, 1886, and directing her to pay the same; and that they have judgment against said defendant for the costs of this action.”
    The defendant demurred to the complaint, upon the ground, among others, that it did not state facts showing a cause of action.

      Horace W. Secor, Jr., for appellants.

      George W. Gotterill, for respondent.
   By the Court.—O’Gormar, J.

The judgment sustaining the demurrer in this case was proper.

' Taking the facts as stated in the complaint and admitted by the demurrer, no reason appears why the plaintiff should have any other process for collecting the .judgment referred to in the complaint, than the ordinary means of enforcing a judgment, viz.: execution against the property of the judgment debtor.

. The judgment obtained was not against the defendant .therein in a fiduciary capacity, and the money of the plaintiffs was not held by the defendant in a fiduciary capacity, but wrongfully, and in flagrant violation of law. The money, unlawfully retained by him, had been mixed with his own, and had wholly lost its identity, and plaintiff’s remedy depending on that judgment was against all the defendant’s property by execution, not against any special portion thereof, on the theory of a special lien on it.

The judgment below is affirmed, with costs.

Sedgwick, Ch. J., concurred.


author: Sedgwick, Ch. J.,

text:
    ACALUS L. PALMER, et al., Respondents, v. THE GREAT WESTERN INSURANCE CO., Appellant.

      Marine insurance—Seaworthiness—Barratry—Freight, when deemed earned though worthless cargo is shipped—Conspiracy between owner and shippers to ship worthless cargo and sink ship, evidence of when insufficient.

    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided November 8, 1886.
    Appeal from judgment entered on verdict in favor of plaintiff, and from order denying defendant’s motion for a new trial.
    The facts appear from the following opinion of O’Gorman, J.:—“ The action was brought to recover $4,528.25 claimed to be due to the plaintiffs as owners of bark ‘ Brother’s Pride,’ on a policy of insurance of freight. The bark was abandoned and burned at sea, by order other master, while on the voyage from Cardenas to New York. This occurred three days after the bark left Cardenas, where she had shipped 860 hogsheads, said to contain a liquid called melada. The defendant had insured against the perils of the sea, fire, barratry, and all other loss occasioned by sea perils. Between the time of leaving Cardenas and the loss, the bark encountered no rough weather. At the time she was abandoned there was no wind. There is no evidence that she had sprung a leak, or that she was in any immediate danger. It is in evidence that an accident had happened to one of her pumps ; that the cross-bar had broken, and also that all vessels are liable to spring a leak at sea at any time. The abandonment of the vessel was deliberate, and accomplished without excitement, haste or confusion. The master and crew got into the boats, waited near the vessel for some time, and then, on her failure to sink, the master sent three men on board, who set the bark on fire and she burned to the water’s edge.

      “ It was contended on the part of the defendant that, from these facts, it should be presumed that the vessel was unseaworthy when she left Cardenas. Some evidence, however, was given of examinations of the bark by several competent witnesses on various occasions, and at various places, and at Cardenas before she sailed from that port, and their opinions of her seaworthiness were, I think, sufficient to go to the jury and sustain a verdict for the plaintiffs on that issue. The evidence was, I think, also sufficient to sustain the charge of barratry by the master and mariners, but that was one of the acts insured against.
    “ The defendant’s counsel also contended that there was no evidence of any bona fide shipment of any cargo, from which freight could have been earned. On this subject the evidence presented by the plaintiff is strangely meagre, incomplete and unsatisfactory. One witness’ testified that while the vessel lay at Cardenas he saw casks going on board and that these casks had the outward appearance of melada casks, and, judging from what he saw on the outside, he judged they contained melada. There was evidence that melada was a liquid thicker than molasses. One of the casks burst on deck a,t Cardenas and the contents were like dirty water,— thin and watery,—not as thick as molasses, and had a curious sour smell. This is the only evidence of the shipment on board of any cargo, and, considering the other suspicious circumstances of this case, I do not think it was. sufficient to go to the jury as proof of a bona fide shipment. It would as well sustain a verdict that a bona fide shipment of any cargo had not been made as that it had been made, and the preponderance of evidence was, in my opinion, in favor of the former finding.
    “ The relations of insurer and insured require frank, open and candid dealing between them, and the exercise of mutual good faith. The testimony on behalf of the plaintiff in this case falls far short of that standard, and is, in itself, inadequate to sustain a verdict for the plaintiff.
    “ In my opinion, the judgment and order appealed from, should be set aside and there should be a new trial with costs to abide the event.”
   Sedgwick, Ch. J.,

wrote as follows:—“ Although, in fact, the casks were filled with water and not with melada, the owners could collect freight, if cargo arrived. In the present case, the owners show a legal right to collect freight, unless there was some evidence that the owners conspired with the shippers to have a worthless cargo shipped and to sink the" vessel so that cargo should not arrive. No testimony in the case implicated the owners. The court directed the jury to find whether under the testimony there was a bona fide shipment. They found for the plaintiffs. The learned counsel for appellant argues that the verdict was against the testimony. The argument applies to the testimony that showed that the casks were filled with water and not melada. On this subject the testimony referred to a few only of the 860 casks shipped. It was not, however, clearly shown that the owners themselves were cognizant of a fraudulent shipment. The most favorable supposition for the defendant would be that the captain was implicated in such a shipment. That was a question for the jury. On this appeal it does not appear that the captain was guilty of this.

Evarts, Choate & Beman, for appellant.

W. W. Goodrich, for respondents.

“1 agree with Judge O’Gorman as to the rest of the case. Differing with him as to the point that has been discussed, I am of opinion that the judgment should be affirmed with costs.”

Trtjax, J., concurred.

Judgment and order affirmed, with costs.


text:
    GALEN W. LOVATT, Appellant, v. ELLEN F. WATSON et al., Respondents.

      Inquest—Insufficiency of damages assessed thereon—Remedy for by motion for new trial at Special Term.

    Before O’Gorman and Ingraham, JJ.

      Decided November 8, 1886.
    Appeal from order made May 21, 1886, by judge at trial term, vacating an inquest taken before him May 10, 1886, and reinstating the inquest, and denying plaintiff’s motion for a trial of the issues before the court and a jury.
    The Court at General Term, said:—“ On examination of the affidavit presented we do not find that the learned judge exceeded his powers, or committed any error which this court is called on to correct. If, however, as is stated in the affidavit, the proof presented at the inquest was sufficient to justify and require an assessment of damages amounting to not less than $5,800, instead of $300, the amount for which the damages were actually assessed, then the plaintiff would have been entitled to a new trial on motion at Special Term, and this remedy, we think, remains still open to him.”

      E. P. Wilder, for appellant.

      Olcott, Mestre & Gonzalez and A. B. Conger, for respondents.
   Opinion by O’Gorman, J.; Ingraham, J., concurred.

Appeal dismissed, with costs and disbursements.


text:
    GEORGE BUEHLER, Appellant, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, Respondents.

      Default—When not opened.

    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided December 17, 1886.
    Appeal from order denying motion to open default.
    The Court at General Term, said:—“ The motion to open the default dismissing the complaint, was made on an affidavit of plaintiff’s attorney. The pleadings were not recited in the order denying the motion, and are not printed with the papers on appeal. It does not appear what cause of action was sued on or that plaintiff had any cause of action.
    As the judge would be justified in denying the motion unless it appeared that plaintiff had a cause of action, and as we cannot say from the papers before us that the plaintiff has such a cause of action, we cannot review the determination of the Special Term.

      Charles T. Haviland, for appellant.

      E. Henry Laeombe, for respondents.
   Opinion Per Curiam.—Sedgwick, Ch. J., and Ingeaham, J., sitting.

Order affirmed, with ten dollars costs and disbursements.


text:
    MARY WITTE, by Guardian, Appellant, v. LOUIS DIEFFENBACH, et al., Respondents.

      Negligence—Presumption as to—Res ipsa loquitur, when not applied.

    Before Sedgwick, Ch. J., Teuax and O’Goeman, JJ.

      Decided December 17, 1886.
    Appeal from a judgment entered on a verdict of a jury, which the court had directed for the defendants.
    The facts in the case were as follows:
    On August 25, 1884, defendants were putting up a fire escape on the front of the premises 322 Henry street, in the city of New York. A hammer, in the hands of one of defendants’ employees engaged on said work, broke, and the hammer head, weighing from a pound and a half to two pounds, fell four stories and struck plaintiff on the top of her head as she was passing along the sidewalk in front of said premises, and she sustained serious injuries from the accident. Defendants gave testimony to show that they bought the hammer from a dealer who sells only articles of the best quality, that this hammer had been in use about two weeks at the time of the accident, that the workman in whose hands the handle broke was using it in an ordinary way, striking a chisel with it, at the time, and that neither he nor the defendants were aware of any defects in the handle. The workman had not examined the handle for the purpose of ascertaining if it had any defects. There were no guards across the sidewalk to prevent people from passing underneath the workmen, and no sign of warning, and there was nothing placed underneath the workmen to prevent anything they might drop from falling upon people passing underneath, except the planks they stood on. At the conclusion of all the testimony, the defendants moved for the direction of a verdict in their favor, on the ground that the evidence showed defendants free from any carelessness or negligence. The plaintiff requested that the question of negligence be submitted to the jury. The court directed a verdict dismissing the complaint. Judgment for costs having been entered against plaintiff, she brings this appeal therefrom.
    The Court of General Term, said :—“ We are of the opinion that the evidence does not show that the defendants were negligent.”

      Marshall P. Stafford, for appellant.

      Añdrew Comstock, for respondents.
   Opinion Per Curiam ; Sedgwick, Ch. J., Truax and O’Gorman, JJ., sitting.

Judgment affirmed, with costs.


text:
    JOHANN KEIM, Appellant, v. PETER DOELGER, Respondent.

      Contract for employment for life in consideration of not prosecuting action for personal injuries—When void for uncertainty and lack of consideration and under statute of frauds.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided December 30, 1886.
    Appeal from judgment dismissing complaint.
    This action was brought to recover damages alleged to have been sustained by the plaintiff by reason of the breach on the part of the defendant of an alleged agreement to employ the plaintiff for the remainder of plaintiff’s life at a salary of $55.00 per month. This agreement the defendant was charged with having made in consideration of plaintiff not prosecuting actions for the recovery of damages arising from personal injuries sustained by the plaintiff on two different occasions while in the employ of the defendant. The answer put in issue all the material allegations of the complaint. At the trial the plaintiff failed to show that he had ever claimed that the defendant was liable, or that the defendant was liable in fact, for the personal injuries sustained, or either of them, and he failed to give any evidence thát he had ever, at any time, promised not to sue the defendant, or agreed to release him from any supposed liability. He also failed to show that any rate of compensation was mentioned. On the other hand, it appeared affirmatively that if the plaintiff had any claim against the defendant by reason of the personal injuries sustained, his right of action was not barred when he was discharged in October, 1882, for the alleged reason that he had fallen asleep in the discharge of his duty as a watchman.

      The Court at General Term (after stating the facts as above), said:—“ Aside, therefore, from the questions arising under the statute of frauds as to the agreement claimed, the declarations of the defendant as to his intention to keep the plaintiff employed, so far as any were shown, were so indefinite and uncertain, and so entirely without consideration, that they did not constitute a valid agreement. The plaintiff having wholly failed to establish the cause of action set forth in the complaint, his complaint was properly dismissed.”

      George W. Stephens, for appellant.

      Samuel Untermeyer, for respondent.
   Opinion by Freedman, J.; Sedgwick, Ch. J., and Ingraham, J., concurred.

Judgment affirmed, with costs.


text:
    THE FIRE PROOF BUILDING CO., Appellant, v. THE FIRST NATIONAL BANK, et al., Respondents.

      Building contract, construction of—Authority of supervising architect to order new work—Sub-contractor, right of to recover for alleged extra work against party for whom the building is erected.

    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided December 30, 1887.
    Appeal from judgment entered on verdict of jury. Action to recover from defendants for certain work done a¡nd materials furnished in a building erected by the defendants, under direction of one Fuller, of the firm of Peabody & Stearns, the architects employed by the defendants. The trial judge submitted the question to the jury whether or not the defendants had conferred any apparent authority on the architects to order the work for them. The jury found a verdict for the defendants.
    The Court at General Term said :—“ An examination of the testimony fails to show that the work was ordered by the architects on behalf of the defendants, or that the architects had any authority to make any contract for defendants. The architects were employed by the defendants to make plans and specifications for the building, to get estimates and superintend the erection of the buildings.

      “ They prepared plans and specifications and the defendants made a contract with one Darragh to construct the building for a sum named, under the direction of the architects, according to the plans and specifications, and that contract provided in case any work done or materials furnished by said Darragh should be unsatisfactory to said architects, the said Darragh would, on being notified by the said architects, remove such unsatisfactory work or materials and supply the place thereof with other work and materials satisfactory to said architects ; and by that contract the authority of the architects was expressly limited to such changes as would involve no additional expense. They, however, had authority to rej ect work done under the contract, and when work was so rejected Darragh was bound to replace it. The plaintiff made a contract with Darragh to do certain work included in his contract, and the superintendent of the plaintiff read the Darragh contract. Certain work of plaintiff was rejected by the architects, and they directed plaintiff in the presence of Darragh to replace it. Taking plaintiff’s version of the conversation it seems to be clear that no new contract was made. Darragh was, under his contract, bound to remove the arches that had sagged and supply their place with other work and materials satisfactory to the architects, and an order to Darragh and his sub-contractor to comply with the contract was not a new contract for which defendants were liable to pay in addition to the price named in the original contract. There ivas no promise to pay for the work ordered and nothing from which the jury could find an implied promise. Nor do I think there was any evidence that the architects had any authority, either express or implied, to make a contract for new work on behalf of the defendants. The person with whom it is claimed the agreement was made, under oath, stated that he had no such authority. By the contract with Darragh, his authority was expressly limited to such changes as shall involve no additional expense, and it was provided that no alterations or additions were to be paid for, unless the same were directed by the defendants in Avriting. The employment as architects to superintend the building and see that the persons with whom the defendants had contracted performed their contracts, Avould not give the architects authority to make new contracts. In no aspect of the case are the defendants liable to the plaintiff. The contract with Darragh Avas clearly competent. Plaintiff was sub-contractor, and its superintendent saw and read the principal contract. It Avas also clearly competent as fixing the authority conferred on the architects.”

      Stanley, Clark & Smith, for appellant.

      Fisher A. Baker, for respondents.
   Opinion by Ingraham, J.; Sedgwick, Ch. J., concurred.

Judgment affirmed, Avith costs.


author: Per Curiam.

text:
    SOLOMON ADLER, et al., Respondents, v. HERMAN R. BALTZER, Impleaded etc., Appellant.

      Undertaking on discharge of attachment—Liability of sureties thereon— Attempted withdrawal of order vacating attachment.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided December 30, 1886.
    Appeal from judgment entered upon findings by the court, u]3on issues tried by consent without a jury.
    Action on an undertaking given on discharge of an attachment.
    It appeared from the answer and from defendant’s offer of testimony on the trial, that after the giving of the understanding in suit, and the entry of the order discharging the attachment, the sheriff refused to deliver up the goods attached without the payment of a very large amount of fees, more than the value of the goods which he had attached, and that the attorney for the defendant in the action in which the undertaking was given informed the plaintiffs’ attorney on October 29, 1880, that the defendants in said action had concluded not to avail themselves of the order, and would not take the goods from the sheriff under it, and that on November 12, 1880, he served a written notice on the sheriff and the plaintiffs’ attorney, notifying them that the defendants withdrew the undertaking, and that afterwards the sheriff sold the attached property for the payment of his fees, and defendants here claimed that by reason of this the consideration for the undertaking failed and the .sureties thereunder were discharged from liability.
   Per Curiam.

The pleadings show that the answer admitted that an order had been made discharging an attachment. There was, therefore, no issue on this point to be tried. It may be said, however, that no testimony was given that tended to show that the admission was not correct. There was no defense, if such an order had been made.

Wingate & Qullen, for appellant.

Horwitz & Hershfield, for respondents.

Judgment affirmed, with costs.


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    MARY T. CONSTANT, et al., &c., Executors, Respondents, v. THE UNIVERSITY OF ROCHESTER, Impleaded, &c., Appellant.

      Mortgage in fact prior in date but subsequent in record to another—Foreclosure of—Mortgagee for valuable consideration, who not entitled to benefit of recording act as being—Purchaser in good faith, notice through attorney having prior knoioledge—Constant v. Am. etc. Home Mission Society, 53 Super. Ct. 170, followed.

    Before Sedgwick, Ch. J., and Van Vorst, J.

      Decided December 30, 1886.
    Appeal by defendants from judgment entered upon findings.
    Action for a foreclosure of a mortgage.
    The following opinion was delivered by Ingraham, J., at Special Term:— The questions involved in this case are discussed in the opinion of Judge Freedman in the action of Constant v. The American Baptist Home Missionary Society, and I concur in the views therein expressed.

      “ The mortgage to foreclose which this action was brought was given to secure the payment of a bond executed February 17, 1883, by Elizabeth Meehen and her husband. The bond was delivered to Mr. Constant, the obligee, and retained by him, and the mortgage was retained by Mr. Dean, who had acted and was acting as attorney for Mr. Constant, and remained in his possession, or the possession of his assignee, until the trial of this action.

      “ There was no evidence that the bond and mortgage was not given for full value, nor is any fact shown that would impair its validity prior to the execution of the mortgage hereafter mentioned to the University of Rochester. The bond was the obligation, and was in possession of Constant. That entitled him to receive the amount due. The mortgage was security for its payment, and until the bond was discharged, either by payment or in some other way, it was a valid existing obligation of the Meehens, and could be enforced against the land described, unless some other party acquired a prior lien or interest in the property under the recording act.”
    “ It must therefore be conceded on the evidence that the bond was valid, and subsisting at the time of the execution of the bond and mortgage to the University of Rochester; and in order to impair its validity, or make it subject to the mortgage of the University of Rochester, the burden of proof is on the University to show that the bond was either paid or discharged, or that the University of Rochester acquired some right which would give the mortgages held by it priority over the Constant mortgage.
    “ Assuming that Dean had authority from Constant to receive the amount due on the bond, and to satisfy and discharge the mortgage, the burden is on the University of Rochester to prove such payment, or that acting for Constant he did satisfy and discharge the mortgages.

      “It appears that prior to January 8, 1884, the University of Rochester being the owner of three mortgages on premises on Lexington avenue, at Dean’s request sent them with properly executed satisfaction pieces to Dean, as the attorney of the University, for collection, and for a reinvestment of the proceeds in other mortgages. On January 10, Dean satisfied two of the mortgages sent to him, and on that day the owner of the mortgaged premises made a loan on the premises, covered by the University of Rochester mortgage with other premises, $30,000 of such loan being then paid. The amount of the incumbrances on the property mortgaged to secure the loan of $30,000, and including the University of Rochester mortgages was upwards of $40,000, and but $30,000 was received on the loan. Of that $30,000, $27,782.58 was paid to the mortgagor, and by the mortgagor paid to Dean. On the same day and the day after the receipt of this money, Dean paid out the whole $27,782.58, either in payment of liens upon the said property, or for his own purposes. So that on January 11, 1884, when the mortgage to the University of Rochester hereinafter mentioned was executed, Deane had received all of the proceeds of the University of Rochester mortgages sent to him for collection, and had disposed of the same for his own purposes. None of it remained as a fund in his hands to be reinvested on account of the University.
    “ It would thus appear that at this time the relation that existed between Dean and the University of Rochester was one simply of debtor and creditor. Dean was indebted to the University of Rochester for the proceeds of the mortgages, and if the University of Rochester had then demanded the return of its money there would 'have been no property upon which it would have had a lien, and its remedy would have been an action against Dean for the money received by him for its benefit. The relation of debtor and creditor thus existing, Dean procured the Meehens to execute two mortgages to the University of Rochester, to take the place of the two mortgages which had been paid the day before, and the proceeds of which he had used. No money was paid to the Meehens by Dean at the time of the execution of these mortgages, and if it may be assumed that the Meehens were then indebted to Dean in • an amount largely in excess of the mortgages then executed, the executions of such mortgages would be simply a payment to Dean on account of such indebtedness, and Dean’s delivery of the mortgage so executed by the Meheens to the University of Rochester would be simply in payment of the indebtedness then existing of Dean to the University of Rochester.

      “ No money was paid by the University of Rochester to Dean or any one else on the faith of these particular mortgages, and there is no evidence that the University was informed that the mortgages were first liens on the property. No money was paid to Constant, nor to Dean as Constant’s agent to discharge the bond, nor was he informed at the time of the condition of affairs, or that Dean had had executed the University of Rochester mortgages on the premises covered by his mortgages.
    “ Under such circumstances, I do not see how it can be said that the Constant bond was paid either to Constant himself or to Dean as his attorneys. The fact that a statement was made which would show that out of the amount of the $9,000 loan when Dean paid it, the Constant mortgage should be satisfied with the interest thereon, and the balance credited to Meehen on J. H. Dean’s ledger cannot be held to be a payment of the Constant mortgage The receipt of Meehen is simply a receipt for the balance after the Constant mortgages were paid, and as before stated it appears from the evidence that they never had been paid.
    “ Nor do I think the University of Rochester can be said to be a bona fide holder of the bond and mortgage for value so as to entitle them to the protection of the recording act. As before stated, when the last mortgage was executed by Meehen, Dean was then a debtor to the University of Rochester and Meehen was a debtor of Dean’s. In payment of such indebtedness Meehen executed at Dean’s request the mortgage, and Dean to pay his indebtedness to the University of Rochester turned over the mortgage to it.-
    “ It is well settled in this state that a party taking a conveyance of land as security for an unsettled account or for an existing indebtedness is not a bona fide holder for value. Delaney v. Sterns, 66 N. Y. 160.
    “ Nor can the University of Rochester be said to have received its mortgage without notice of the Constant mortgages. Dean did not state to the University that the mortgage given to it was a first mortgage. There was no examination by the University of the records for prior liens. The matter was left to Dean, and in the course of his business for the University the knowledge of the Constant mortgage was communicated to him. The University probably relied on Dean to give them a first mortgage on the property, but Dean knew the mortgage he gave them was not a first mortgage.
    “ Nor do I think plaintiff is entitled to be subrogated to the $1,000 paid by Dean to satisfy the proportion of the Hoffman mortgage on the premises in question. That was paid, not Avith the money of the University of Rochester, but with Dean’s money, and the mortgage was satisfied. The University of Rochester could be subrogated to Dean’s rights only, it having paid nothing on account of the mortgage.
    “As between Dean and Constant, Dean could not claim to maintain the lien as against Constant’s mortgage, because Dean was largely indebted to Constant, and there was no intention of keeping the mortgage alive.
    “ I think the plaintiff is entitled to the usual judgment, directing the foreclosure and sale of the premises in question, and judgment is ordered accordingly, with costs.”

      James M. Hunt, for appellant.

      John E. Parsons, for respondents.
   Per Curiam.

Judgment affirmed with costs, upon the opinions of Judge Ingraham below, and of Judge Freedman in Constant v. American Baptist &c. Society, 53 Super. Ct. 170.


text:
    ABRAHAM DAVIS, v. Respondent, PETER BOWE, Late Sheriff, Appellant.

      Costs—Lien of attorney thereon—Not Ms property—Right of attorney of record to discharge prisoner held on limits under judgment for costs— False imprisonment.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided December 30, 1886.
    Appeal from judgment in favor of plaintiff, and from an order denying a motion for a new trial.
    Action to recover damages for a false arrest. The facts were as follows : The plaintiff herein was arrested on a body execution in an action in the then Marine Court, September 4, 1882. He gave a bond for the jail liberties and was allowed on the limits. The judgment on which the execution was founded was for costs, and the execution upon which the arrest was made so stated. On December 13, 1882, the Marine Court judgment was satisfied by the execution of a satisfaction piece signed and acknowledged by T. C. McKennie, the attorney of record. On the same day the judgment was satisfied of record in the Marine Court and County Clerk’s office. McKennie signed a paper requesting the sheriff to discharge the prisoner, Abraham Davis, from custody, and Davis’ attorney caused this notice to be served at the sheriff’s office. On a conflict of evidence as to whether this notice was left with the sheriff, the jury found for plaintiff. Some time in the latter part of December, 1882, and after the paper had been served, the sheriff’s attorney and the under sheriff were informed' in the sheriff’s office that the Marine Court judgment had been paid and satisfied of record; but no certificate of satisfaction was produced at the sheriff’s office. At this time the paper was in the possession of the sheriff’s office. On Saturday, January 6, 1883, at half-past ten at night, two deputy sheriffs arrested Davis, brought him to the door of Ludlow street jail, and then allowed him to go free on payment of ten dollars. The right to arrest was based on a remand order in the old Marine Court action, Sheriff Bowe’s term of office being about to expire. The court charged the jury that the notice signed by McKennie was .sufficient to entitle Davis to a discharge, and defendant excepted. The jury found for plaintiff in the sum of six hundred dollars.
    There was no evidence in the case as to the value of the attorney’s services in the action in which the body execution was issued.
    The Court at General Term held :—“ The costs of the successful party in all actions do not belong legally to the attorney. They legally belong to the party. Wheaton v. Newcomhe, 48 Super. Ct. 215. But the attorney has a lien on them for the amount of his compensation, which may or may not exceed the amount of the costs as taxed. It is for this reason that the attorney is master of a judgment for costs and of the remedies given for its collection......The case was correctly disposed of, both at the trial and on the motion for a new trial.”

      C. F. McLean & Malcolm Graham, for appellant.

      McCloskey & Konvalinka, for respondent.
   Opinion Per Curiam.

Judgment and order affirmed, with costs.


text:
    STEPHEN A. WEST, Appellant, v. THE MANHATTAN RAILWAY CO.. Respondent.

      Motion for new trial on minutes upon several grounds, and granted without a designation of which grounds—Appeal-book not stating that it contains all the evidence.

    Before Sedgwick, Ch. J., and Ingraham,- J.

      Decided December 30, 1886.
    Appeal from an order granting a motion for a new trial made upon the judge’s minutes.
    The motion was made on the minutes to set aside the verdict, upon the exceptions, because the verdict was for excessive damages, because the verdict was contrary to the evidence, and because „the verdict was contrary to law. The court granted the motion without designating upon which of the grounds stated.
    The Court, at General Term, said :—“ Taking. into consideration the fact that the trial judge had the witnesses before him, and had much better opportunity of judging the effect to be given to their testimony than the appellate court, we are npt disposed to interfere with the disposition of the motion made by him. The verdict was a large one, and, as it is not stated that the case contains all the testimony taken at the trial, we cannot say that the trial judge was wrong.”

      Albert Taylor, for appellant.

      Edward G. Rapallo, for respondent.
   Opinion Per Curiam.

Order affirmed, with costs to abide the event.


text:
    EMILY R. CALDWELL, et al. Exr’s, &c., Respondents, v. FRANCES A. CROFT, Impleaded, &c., Appellant.

      Specific performance—Form of decree for assumption of mortgage by vendee—Provision as to form of conveyance—Provisions as-to apportionment of mortgage interest, and as to assessments.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided February 14, 1887.
    Appeal by defendant from judgment entered upon findings by judge at Special Term.
    Action for specific performance of a contract to convey real estate. The contract vendor was Mrs. Devlin, who died before time of performance, which was fixed by the contract at July 1, 1885. She left a will. Her executors, who are said to be trustees also, holding the legal title, were made defendants, as also were the heirs-at-law. One of these heirs-at-law appeals from the judgment that the contract be specifically performed.
    The Court at General Term, said:—“There was not any error in determining that the plaintiffs should have such a kind of relief. The appellant does not claim that the executors did not have the fee. ' There is a certain obscurity as to some of the conditions of performance which the appellant, having been made a defendant, can ask to be cleared away. The contract, as it was, is to be performed. A different contract is not to be enforced. The contract provided that the assumption of a bond and mortgage of $27,000, should be part payment of the agreed consideration. The vendor agreed to deliver ‘ a proper deed containing a general warranty and the usual full covenants.....for the conveying the fee simple.....free from all encumbrances, except the said mortgage.’ This contemplates that the land should be subject to any encumbrances that might be created, after at least July 1, 1885. The judgment provides for a conveyance in fee, ‘ the form of the same to be settled and approved by one of the justices of this court in case the parties differ respecting it.’ Regularly, the form should be specified by the judgment. The judgment proceeds to declare that the land is to be subject, however, to the payment of $27,000, the amount of a mortgage now on said premises.’ . The provision should have been in accordance with the contract, that the grantee assumes the payment of the bond and mortgage as part of. the consideration. The further provision of the judgment that the grantee was to pay interest on this mortgage only from September, was equitable, as the plaintiff testator had not the benefit of occupation down to that time. I think, however, that there was a mistake in the next provision, which is and also subject to any and all assessments imposed upon said premises since the first day of September, 1885.’ This varied the contract. By that the land was to be subject to liens for taxes as well as assessments from July 1.’ After that day and on August 17, 1885, the taxes for 1885 became a lien, and on August 11, 1885, an assessment for opening 140th St. to the amount of $31.83, was confirmed. The premises should have been made by the conveyance to be delivered, subject to all liens arising after July 1.”

      Hubbard Hendrickson, for appellant.

      William F. Macrae, for respondents.
   Opinion by Sedgwick, Ch. J.; Freedman, J., concurred.

Judgment modified, in the particulars noticed, and affirmed as modified, without costs, to either party.


text:
    WEBSTER GILLETT, Respondent, v. FRANCIS M. GILLETT, et al., Appellants.

      Damages—Conversion—Market value of stock fixed by what defendants, standing in position of trustees, had testified to and had failed to testify to.

    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 14, 1887.
    Appeal from judgment entered upon verdict of jury, and from order denying motion for a new trial made upon the minutes.
    Action for damages for conversion of a certificate of 6000 shares of stock of the Long Distance Telephone Co. The litigated issues were, as to whether the plaintiff was entitled to the possession of the certificate; as to whether he had duly demanded the certificate from the defendants; and as to the value of it. The certificate had been transferred to the' defendants, with other certificates of the same kind, with the privilege to the defendants of purchasing at $1.25 a share. The defendants agreed, if they did not buy, “ to return said Clark and Wiggin and Gillett, respectively, on demand after October 1, 1885, all the stock remaining in our hands, in the proportion as the same has been placed by them with us.” The defendants did not buy any of the shares transferred to them. The plaintiff demanded of the defendants that they deliver the stock to him. The demand was refused. The defendants, on October 24th, wrote to the plaintiff a letter in which they claimed that the plaintiff was indebted to them in the sum of $200, and then informed him, “ upon payment of this sum, we shall be glad to return your certificate for 6000 shares .telephone stock.” In the February following, the defendants began, in the City Court of New York, an action, the complaint in which averred that the defendants had loaned the plaintiff certain moneys; that “prior to such advance the defendant had deposited with the plaintiffs, with an option to the plaintiffs to buy within a certain time 6000 shares of the capital stock of the Long Distance Telephone Company..... and plaintiffs now hold certificate No. 337 of said company for said 6000 shares”; that “the defendant agreed in consideration of said advances that the plaintiffs might hold said 6000 shares as security for the repayment of said amounts. No part thereof has been repaid, and the plaintiffs at the time of the commencement of this action had, and noAV have, a lien upon said stock for the amount of such advances.” The judgment was that the defendants had no lien upon the stock.
    The testimony as to the value of the certificate, at the time it was converted was given principally and substantially by the defendants themselves, and one of their clerks. The defendant Miles testified that, down to September 18, the defendants had sold 15,009 shares at an average price of $4 a share. The defendants did not give any competent testimony to show that the market price or real value became less after September 18. The testimony most favorable to defendants on this point was from the clerk, who said, “I tried to get bids. I tried to get bids from our different customers in the office; tried to see if they wanted any more ; from all the parties that had any stock; and I couldn’t get any bid at all; they would not give anything for it.”
    The Court at General Term (after stating the facts as above) said:— This gives no solid information as to the value of the stock. His efforts may not have been of a kind fitted to induce a sale, and the parties addressed by him may have refused for reasons not connected with the value of the stock. It is true that one of the defendants testified that he did not think that the stock had value after September. Such testimony did not benefit parties who clearly were wrong doers, who, in an equitable sense, were trustees of the plaintiff, and who, having knowledge of the facts could have testified to them clearly, and if the testimony would have helped them, would have given it. I am of opinion that the value affixed by the jury to the stock was in accordance with the just inferences, from what was testified to, and from what was not. testified to by the defendants.”

      Ira D. Warren, for appellants.

      W. M. Safforcl, for respondent.
   Opinion by Sedgwick, Ch. J., Truax and Dugro, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    IN THE MATTER OF THE APPLICATION OF GEORGE N. LADUE, et al., FOR LEAVE TO SELL REAL ESTATE OF INFANTS.

      Specific performance—Title must be marketable—Definition of marketable title—Premises bounded by land intended for road—Title to said intended road.

    Before Sedgwick, Ch J., Truax and Dugro, JJ.

      Decided March 14, 1887.
    Appeal from order denying motion to compel purchaser to complete contract.
    The facts appear from the following opinion delivered at Special Term :
    Ingraham, J.—“ The agreement sought to be enforced provides that the contract for the sale of the premises should not be binding, unless good and sufficient deeds conveying and assuring the parties of the second part the fee simple of the entire property free from all .encumbrances, should be tendered to the purchaser.

      “ The purchasers oppose the motion on the ground that such a deed was • not tendered, and that the petitioner has not a good title to a portion of the premises. No objection is made as to the form of this application, nor is the question raised that the relief asked cannot be granted by motion, or that an action should have been commenced for that purpose.
    “ The rule is now settled that a purchaser of real estate will not be compelled to specifically perform when the vendor has failed to show that he had a marketable title ; that as a general rule a title which is open to judicial doubt is not a marketable title, and if, after the vendor has produced all the proofs that he can, a rational doubt remains, the title is not marketable. Shriver v. Shriver, 86 N. Y. 584. _
    _ “ One of the objections taken by the purchasers is that the vendors have failed to show that they have a good title to the northern half of a road which constitutes a portion of the premises in question. It appears that one Samuel Stilwell was the owner of a large tract of land which included the property in question; by a deed dated December 1, 1795, he conveyed a portion of the property to Samuel S. Bowne, by a description which begins at the northeast corner of a meadow, and runs thence by various courses and distances along the land of the said Stilwell intended for a road two rods in width, and thence by various other courses and distances to the place of beginning * according to a survey of the same by Cassimer Th. G-oerck, City Surveyor, bearing date the 5th day of December, one thousand seven hundred and ninety-five, containing altogether thirteen acres three roods and twenty-two and one half perches of land, bounded on the south on the land of said Stilwell intended for a road of two rods in width, on the east of the lands of Stilwell, westerly and northerly on the lands of said Stilwell and Robert L. Bowne, as will appear by the aforesaid map.’ The said deed also contained a covenant on the part of the said Stilwell, that the road of two rods in width as aforesaid, to run along and adjoin the southerly and westerly side of the premises hereinbefore granted to Bowne according to the aforesaid survey or map, shall be -laid out accordingly and run from Bloomingdale road within one year from the date thereof, and ever kept open from that time. No survey has been produced bearing the date mentioned in the deed, but a survey is on file in the office of the Register of the city of New York, dated January, 1796, and which may be assumed to be the survey described in the deed. The road of two rods wide is a portion of the premises in question, and the petitioners claim title to the northerly one half of the said road through Bowne, the grantee in the deed before mentioned, so that if the fee of the northerly one half of the said road was not conveyed by the said conveyance, on the paper before me the petitioners cannot give a good title to the property.

      “ In Bissell v. N. Y. Central R. R. Co., 23 N. Y. 63, the vendor being the owner of certain lands, caused a plan to be made in which he laid out a street by the name of Erie street and sold the lots on each side of the street by%such survey. It was held that such vendor intended to convey the lands upon the street, and there was no evidence of liis intention to reserve the fee of the street; that the conveyance thereof carried the fee to the center of the street. In the case of Mott v. Mott, 68 N. Y. 254, the property as granted, bounded on a lane. The court, after stating the rule to be that when lands are granted bounded upon a highway, the fee of one half the highway will be conveyed unless by the terms of the grant or by necessary implication the highway or bed of the street is excluded ; held, that the grant when read in the light of the circumstances of the parties and the locality, goes far to control and limit the effect, which but for it, might be given to the description of the land granted, and that under the circumstances in that case the fee of the land did not pass by the grant.

      “ I think applying the principles laid down in the case of Mott v. Mott, supra, to the case at bar, it must be held that no part of the fee of the strip of land intended for a street was conveyed by the deed to Bowhe. At the time of the conveyance there was no road in existence. The property is not bounded by a road but by a strip of land belonging to Stilwell, intended for a roach It is true that on the plan by which the property was sold a road appears, still, by the express terms of the deed, no road was then in existence. The description runs along the strip of land intended for a road, and is bounded by such strip, and Stilwell covenants not that the strip of land is now a road, but that the road to run along and adjoin the southerly and westerly side of the premises shall be laid out accordingly within one year from date and forever kept open from that time. If the fee of the road passed to the grantee, that covenant would be unnecessary, and except with his consent it would be impossible for Stilwell to perform it.
    “ In Mott v. Mott, supra, the use of the lane was granted to the grantee, and Allen, J., says at page 254: The grantee did not reserve the use of the lane, as would be proper had the fee of it been granted, but granted the use as the owner of the-fee might well do ; thus in terms granting two things : the fee of the land on the north side of the lane, and an easement in the lane itself.’

      “ The implication from the grant that the fee was not intended to pass is much stronger in the case at bar, for here the grantor covenants to do an affirmative act to the strip of land intended for a road, viz., to lay out the road, and then covenants that such road shall forever be kept open.
    “ I think, therefore, the proper meaning of the description was intended to run along the side of the road, and that no part of the fee of said strip of land passed by the conveyance. The distinction between the case of Bissel v. N. Y. Central R. R. Co. and the case at bails apparent. That case was decided on the ground that there was no evidence to show that it was not the intention of the grantor to convey the fee of the street, while in this case such intention appears.
    “ I have not considered the evidence contained in the other deeds of said Stilwell conveying the adjacent premises, but if they were legitimate evidence they ivould strengthen the implication.
    “ I. think, therefore, plaintiff’s title was not a marketable title. As was said in Mott v. Mott, supra, it is not at all probable that the present occupants will ever be disturbed in their possession and use of the land, but the fact remains that the title is not perfect and may not be marketable, and is not therefore such a title as a purchaser at a judicial sale may be compelled to take.

      “ It is not necessary to consider the other serious objections to the title taken by the purchaser, and for the reason above stated the motion must be denied, with ten dollars costs.”

      Charles Dickenson and William Pierpont Williams, for appellants.

      Edmund Coffin and William L. Snyder, for respondents.
   Per Curiam.

Order affirmed, with costs, on opinion of court below.


text:
    CHARLES H. BENNER, et al., Respondents, v. THOMAS KILPATRICK, et al., Appellants.

      Action by attachment creditor and sheriff against debtor of attachment defendantsaid defendant, and assignee for benefit of said debtor's creditors—Finding that assignment “was made" equivalent to finding that it was duly achnmledged—Failure of assignee to answer in such action, effect of.

    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided April 13, 1887.
    Appeal by defendant from judgment entered upon findings by the court, after a verdict of jury upon framed issues.
    The complaint averred that in certain actions by plaintiff Benner against one Adams, the sheriff, the co-plaintiff here, levied an attachment upon a demand, based upon work and materials furnished, due to Adams, the defendant. in the attachment, by Kilpatrick the defendant here; that plaiñtiffs had complied with sections 677 and 678 of the Code of Civil Procedure, and the complaint demanded judgment against the defendant -Kilpatrick in the amount of the demand against him. The complaint averred that, since the levy of the attachment, the said Adams assigned said indebtedness of Kilpatrick to his firm, composed of himself and one Cobb, both being made defendants here, and that after-wards the firm made a general assignment, for the benefit of their creditors, to the defendant Leroy, and said Leroy thereupon accepted the trusts under the said assignment. Leroy, assignee, etc., did not appear in this action. The attachment was levied upon the indebtedness in question, on January 27. The general assignment was in suit made upon November 10, 1884.
    The court ordered judgment for the plaintiffs against the defendant Kilpatrick.
    The Court at General Term (after stating the facts as above), said: “ If, at the time the attachment was levied, as is claimed, upon the debt due by the defendant, the defendant creditor had transferred his claim, there was no property of the attachment defendant upon which to levy. The debt would be due to the transferee, and not to the sheriff or the attaching creditor.
    “ In this case, the complaint avers that on November 10, 1884, the firm of the defendant ‘ made a general assignment for the benefit of their creditors, to the defendant, Henry W. Leroy, and said Henry W. Leroy thereupon accepted the trusts under said assignment/ The complaint had averred that the levy was made before the day of the making of the assignment. The answer of defendant Kilpatrick admitted the assignment was made for the benefit of creditors on the day named in the complaint, but averred that what was claimed by the complaint to have been the levy., was made after the assignment was made, and on or about January 27, 1885. The learned judge found that on November 10, 1884, the defendants, Adam & Cobb; made a general assignment for the benefit of creditors to Henry W. Leroy..
    “It is urged that this does not show that the chose in action was transferred to the assignee because it did not appear that the execution of the assignment was acknowledged as is required by the statute. In my opinion averring and finding that an assignment was made, necessarily means a valid and operative assignment. It is clear .that the plaintiff did not think of contesting the validity or operation of the assignment. They were content in their belief that the levy was made before the assignment was made. The judge, however, found as a fact that the levy was made after the assignment. Thére was no proof upon the trial that the assignment was fraudulent against creditors.
    “ It is further argued that there is no proof that this particular debt was transferred by the assignment. If it were a general assignment, it transferred what property the assignors had. If the assignors did not have this particular claim, it must have been because they had transferred it before they made the assignment. This would be fatal to the present action based upon the assumed levy in proof.
    “ It is supposed that, because the assignee was made a defendant and did not answer, that the defendant should pay to the plaintiff what he owes to the assignee. There was no issue made between the defendants. If any were made between the plaintiff and the assignee as defendant, no judgment has been entered determining the merits of the issue between them. In fact, the complaint only claimed such rights as would belong to the plaintiffs if the assignee took the claim subject to the lien of the attachment. As against the defendant appearing, the default of the assignee was not the equivalent of an assignment of the claim. He had still a right to maintain that the plaintiffs acquired no right against him by the levy they made. If the assignee has not transferred the claim, of course he can hereafter enforce it against the defendant Kilpatrick.
    “In my judgment the action was only one at law on a contract for the payment of money in which the defendant was entitled to a jury trial. And if it appeared that, before the levy, the defendant in the attachment had assigned the claim in action, the complaint should have been dismissed.”

      Kelly & Macrae, for appellants.

      Paddock & Gannon, for respondents.
   Opinion by Sedgwick, Ch. J.; Truax and Dugro, JJ., concurred.

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


text:
    BESSIE FARJEON, Appellant, v. HUGH J. GRANT, Sheriff, &c., et al., Respondents.

      Substitution of indemnitors in place of sheriff—-§ 1421 Code contemplates an action for conversion and not for willful and malicious trespass— When allegation of malice and intent deemed surpilusage in compdaint for conversion—Objection to substitution that application shows indemnitors not liable for all the sheriff levied on—Code § 479 as to service of complaint, application of

    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 2, 1887.
    Appeal by plaintiff from order substituting as defendants the indemnitors of the sheriff, in the place of the sheriff, under § 1421, Code Civil Procedure.
    The facts and objections appear from the following opinion of the General Term:

      “•The first objection to the order made, is that the action is of a kind not within the intention of § 1421, Code Civ. Pro. It is argued that the Code refers to actions for conversion simplieiter, when the sheriff has taken under process property which he is not justified in taking, but that the present action is for a willful and malicious trespass by the sheriff, made with the intention of breaking up the business of plaintiff. In my opinion, the complaint claims conversion only, and under it damages for conversion only can be recovered. The so called malice and intent to break up the business as alleged in the complaint, do not alter the act of conversion or give greater damages than those that follow a conversion; for the only thing averred to have been actually done by the defendants was taking and converting and retaining goods.
    “The complaint charges that ‘the defendants wrongfully and unlawfully and with malice and with intent to injure the plaintiff and destroy her said business, for the profit and advantage of the defendants, they the said defendants unlawfully took and carried away and converted to their own use, and still retain from her, the goods and chattels,’ etc.
    “It'is not meant to deny or affirm that there may be a malicious trespass connected with a conversion which will give a right to exemplary damages, or which will’ have, as a proximate result, other damages than are measured by the value of the property taken. Such a case is not described in the complaint. A bare conversion is charged, and its consequences are not enlarged by an allegation of motive and intent.
    “ The next objection js, that the application did not show that the indemnitors were liable for all that the sheriff seized under the execution. The affidavit said on this subject that, ‘ under said execution, the defendant sheriff levied on the property, or part thereof, referred to in the complaint.’ It is supposed that this may leave a case of the indemnitors being responsible for part and the sheriff responsible for the rest. Taking all the affidavits and papers, they show that the indemnitors were responsible for all that the sheriff took, but the extract from the affidavits reserves the question of fact of what the sheriff did actually take.
    “ The order as made required the plaintiff to serve upon the indemnitors’ attorney a copy of the complaint. It is supposed that as those attorneys had already appeared for the defendants other than the sheriff, it was not necessary under section 479 of the Code, to make a further service upon the indemnitors becoming defendants. It may be doubted whether section 479 is to be applied to this case. If it be applicable, the appellants have not been injured by a direction that tended to certainty and regularity in the progress of the action.”

      James A. Hudson, for appellants.

      Wales F. Severance, for respondent.
   Opinion by Sedgwick, Ch. J.; Freedman and O’Gorman, JJ., concurred.

Order affirmed, with $10 costs.


text:
    HERMAN ROSENBERG, et al., Respondents, v. HUGO BLOCK, et al., Appellants.

      Money had and received—When action for will lie, though it be not actually proven that defendant received, the money—When receipt thereof will be presumed.

    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided May 2, 1887.
    Appeal from judgment in favor of plaintiffs, and from order denying a motion for a new trial.

      The complaint alleged that there was a limited partnership between plaintiffs created under the laws of Virginia, under the name of the plaintiff, Rosenberg, who was the general, and the plaintiff, Bottigheimer, a special partner; that said firm consigned to the defendants merchandise upon the agreement that the defendants should sell the same as agents for and on account of the plaintiffs, and remit the proceeds of sale to the plaintiffs; that the defendants, as such agents, did sell said merchandise for about the sum of $800, which they received, but that they did not remit the proceeds of said sale to plaintiffs; and that payment of said proceeds of sale has been demanded, but defendants neglect and refuse to pay the same. The answer averred, among other things, that the alleged special partnership was merely nominal and fictitious; that Rosenberg was the sole person interested in the business and its assets, the pretended partnership having been resorted to to prevent the creditors of Rosenberg from reaching his property—and that he was indebted to defendants for goods sold and delivered; that the property mentioned in the complaint was received by the defendants from Rosenberg, as his individual property, under an agreement with Rosenberg, individually, that defendants would, on the sale thereof, account to him individually. The defendants also set up the indebtedness of the plaintiff, Rosenberg, as a counter claim.
    One of the grounds, assigned by the defendants on their motion to dismiss the complaint at the close of the plaintiffs’ case, was that it had not been proved that at the time of the commencement of this action the defendants had received a dollar in cash as the proceeds of the goods. At the close of the case, the defendants also moved to dismiss on the ground that the plaintiffs had elected by this action, and in the form in which it is brought, to hold. the defendants for money had and received, and, in the absence of proof that the defendants had received any money as the proceeds of these goods prior to the commencement of this action, the plaintiffs must fail. Both of these motions were denied.. The Court at General Term (after stating the facts as above) said:—On the former trial of this case, the same motions were made before the trial court, and were denied—and this point was presented to the general term on an appeal from the judgment then entered. On that appeal, the general term refused to reverse the judgment. This is a decision that the action could be maintained, and the judgment upheld, in the form in which the action was brought. The defendants appealed from the said judgment of the general term to the court of appeals, and the judgment of the general term was reversed, not on the ground above specified, but solely on the ground that there was error in the rejection of certain testimony which was offered by the defendants. It seems to me that, if the court of appeals had been of the opinion that the plaintiff had no cause of action at all, they would have reversed the judgment on this ground, and not have ordered a new trial because of errors in the rejection of evidence. It is true that, as a general rule, the action for money had and received, can be maintained only for money actually received, yet the action is in its nature an equitable one, and can be maintained when it is shown that the party either has or ought to have—and therefore in law has—the money in his possession. Risdon v. De LaRua, 51 Super. Ct. 63, affirmed, 98 N. Y. 653. In this case, we must assume that the defendants, in law, have in their possession the money for the goods which they sold in violation of the terms of the agreement under which they received the goods......”

      Samuel W. Weiss, for appellants.

      Root & Strong, for respondents.
   Opinion by Truax, J.; Sedgwick, Ch. J., and Dugro, J., concurred.

Judgment and order affirmed with costs.


text:
    DWIGHT ASHLEY, as Ex’r., &c., Appellant, v. JAMES M. WHITNEY, et al., Respondents.

      Order for discovery and inspection of books of account not granted, except on allegations of specific error or fraud—General allegations of incorrectness insufficient.

    Before Sedgwick, Ch. J., and O’Gokman, J. .

      Decided May 2, 1887.
    Appeal from order made at Special Term denying a motion made by plaintiff for discovery, inspection, and copies of the defendants’ sale books, etc., containing transactions with plaintiff’s testator from 1879 to 1885.
    The Court at General Term said:—“ The granting or denial of this motion was in the judicial discretion of the court, and there is nothing before us to show that the discretion has been abused. The petition of the plaintiff disclosed his reasons for suspecting the general incorrectness of the defendants’ accounts, and for his expectation that testimony to prove errors can be found in the books. But he does not specify any error or fraud in the accounts detrimental to plaintiff’s intestate, and the examination applied for would, if it had been granted, lead only to a search for evidence without any special aim or special subject of inquiry. This is not the legitimate object of the motion.”

      Abel E. Blackmar, for appellant.

      W. H. Arnoux, for respondents.
   Opinion by O’Gorman, J.; Sedgwick, Ch. J., concurred.

Order affirmed, with ten dollars costs.


author: Per Curiam:

text:
    ALICE WINANS, Appellant, v. ROSS R. WINANS, Respondent.

      Discontinuance—Within discretion of court—Power of court to impose terms.

    Before Sedgwick, Ch. J., Fkeedman and O’Gokman, JJ.

      Decided May 2, 1887.
    Appeal from order denying plaintiff’s motion for leave to discontinue the action.
    Also appeal from judgment in favor of the defendant entered upon the report of a referee.
    The following opinion was delivered by Tettax, J., at special term on motion for discontinuance :—
    “The court of appeals said in Carleton v. Darcy that the court to which a motion to discontinue an action is addressed has a discretion whether or not to refuse it (75 N. Y. 377), and in Matter Waverly Water Works Co. (85 Ib. 481) it said, ‘ the court in which an action is pending may impose terms beyond taxable costs as a condition of the discontinuance of the action. It may require the plaintiff to stipulate that he will not sue again for the same cause of action. The right to impose conditions grows out of and is included in the right to refuse the discontinuance altogether.’ «These cases establish the right in the court to discontinue an action on terms, or without terms, or to refuse to discontinue it at all. They show that the plaintiff has not the absolute right at all times and under all circumstances to discontinue the action. The plaintiff in this action waived her right to a trial by jury, consented to a reference, and testimony has been taken by the referee. For some reason, the plaintiff became dissatisfied with the reference, and made a motion to set aside the consent to refer, and the order entered thereon. This motion was denied. It was claimed by the counsel for the defendant, and not denied by the counsel for the plaintiff, on the argument of the motion to discontinue, that the plaintiff’s object in making such a motion was to secure by other means than an appeal a reversal of the order denying the motion to set aside the consent to refer. This she will not be allowed to do. There is another reason why the plaintiff will not be allowed to discontinue the action. She claims that she is the defendant’s wife. This claim the defendant denies. The defendant is entitled to have this claim speedily determined.”

      Luther Lt. Marsh, for appellant.

      James C. Garter, for respondent.
   Per Curiam:

“.....The judgment should be affirmed, with costs, upon the opinion of the referee.

“ The motion of the plaintiff for leave to discontinue the action during the progress of the trial was properly denied under the exceptional circumstances of this case, and the order of denial should be affirmed with ten dollars costs upon the opinion of the learned judge at special term.”


text:
    ALICE WINANS, Appellant, v. ROSS R. WINANS, Respondent.

      Waiver of jury trial and consent to reference—When court will not relieve parly from—Poverty of party when not sufficient reason.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided May 2, 1887.

      Appeal from order denying plaintiff’s motion to vacate the order of reference.
    Action for divorce, in which the defense was a denial of the marriage.
    The following opinion was delivered by O’Gorman, J., at Special Term:—“ : . . . . The chief reasons now presented to the court for granting the order asked for, are that the plaintiff, although she* authorized her former counsel to propose a reference, was not then fully aware either that she thereby waived her constitutional right to trial by jury, or of the expenses of a reference as to stenographer’s minutes, etc. To the referee himself, no objection is made. It is conceded that he is in all respects competent and capable of rendering a just and impartial decision.

      “ The question is whether the plaintiff having freely, deliberately, and on the advice of her counsel, elected to have the issues in her action referred, and a motion having been made in open court by him for an order of reference with the consent of the defendant first having been obtained thereto, should now be permitted by the court to revoke her action and be restored to the full enjoyment of her right to trial by jury which she had voluntarily and solemnly waived. That she had such a right is beyond doubt. Code, • §§ 968, 1012. It is equally certain that the right could have been waived, and was, in fact, waived by her. Code, §§ 1008, 1009. lie Hughes, 93 ÍST. Y. 512. And a constitutional or statutory right having been once waived, cannot «be reclaimed. Re Hughes (supra); Baird v. Mayor, 74 JSf. Y. 386. There may, no doubt, be cases where the court, in its discretion, and in furtherance of justice, and to defeat fraud or manifest wrong, may go far to relieve a party from the consequence of his own act, but the facts should be strong indeed, to warrant such indulgence in such a case as this.
    “ I have read the motion papers, and endeavored to inform myself of the facts of this case, for the purpose only of ascertaining if any fraud had been practiced on the plaintiff, or any unfair or improper inducement used to lead her to agree to a reference, or if any wrong has been inflicted upon her, or is threatened by reason of her agreement to refer. I can see no evidence of any such fraud, or wrong, or danger. That she is too poor to pay stenographer’s fees is not an unusual misfortune of litigants in suits óf this nature, and a remedy is not beyond the reach of this court. For any other purpose than that above stated, the-merits of this case have mot been considered on this motion. The plaintiff and defendant are equally entitled to a fair and proper hearing and decision of the matters in controversy between them. The rights of each must be equally respected. It is the right of the defendant now to proceed with the trial before the tribunal agreed on by him and his opponent, and selected by this court. I see no reason,why he should be obliged to forego that right.
    ■ “ In order, however, to remove all possibility of injurious disability in the plaintiff to present her evidence, and place it under examination of her counsel, I will order that the defendant provide her or her attorney with copies of the stenographer’s minutes of all the testimony, on the demand of her attorney, at reasonable times, the cost of the* same, however, to be charged against the plaintiff and deducted from any costs which she may recover against him in this action.

      “ Except as to that indulgence, the plaintiff’s motion is denied, with ten dollars costs, to abide the event.”

      Lather R. Marsh, for appellant.

      James C. Carter, for respondent.
   Per Curiam.

“ The order should be affirmed, with ten dollars costs, upon the opinion of the learned judge , at special term.