text:
    In the Matter of the Estate of Honora Callaghan, Deceased.

      Payment of a decedent’s debts out of foreclosure surplus moneys — the three years’ limitation > upon sales of a decedent’s real estate for payment of debts — Oodeof Qvoil Procedwre, §§ 3750, 3798.
    When there is a deficiency in a decedent’s personal estate, his debts and funeral expenses are entitled to be paid out of surplus moneys arising from foreclosure sales of his real estate, paid into the Surrogate’s Court under section 3798 of the Code of Civil Procedure, although the three years from the date of issuance of the original letters upon the decedent’s estate, within which by force of section 37.50, creditors can apply to the Surrogate’s Court for the sale of the decedent’s real estate to pay debts, may have expired.
    Appeal by Amsdell Brothers, T. C. Lyman & Co. and D. M. Koehler, creditors of Honora Callaghan, deceased, from a decree of the Surrogate’s Court of Kings county, entered in the surrogate’s office on the 12th day of May, 1892, distributing surplus moneys arising from foreclosure sales of said decedent’s real estate.
    Honora Callaghan died intestate at the city of Brooklyn, November 18, 1888, seized of certain real estate in that city. Letters of administration were granted by the surrogate of Kings county to her son, John B. Callaghan, December 3, 1888. Mortgages on the decedent’s real estate were foreclosed by two actions in the City Court of Brooklyn, and after the sale thereof the surplus arising in said actions, was, by order of said City Court, paid to and deposited with the surrogate of Kings county, November 24, 1890.
    On or about March IT, 1891, Katie C. Callaghan, a daughter of decedent, filed her petition with said surrogate setting forth these facts, stating the names of the heirs of decedent, and that there were certain debts of decedent unpaid, including those of these appellants, and praying that such surplus moneys be distributed to those entitled thereto, and .that a citation be issued to the parties designated in the petition.
    A citation was thereupon issued to and served upon the heirs and creditors of the decedent, including these appellants, and was served on all the parties, and these appellants appeared. No answers or objections were filed to said petition, but on the return of said citation the surrogate required John B. Callaghan, the administrator, to file his accounts as. such administrator, and on or about May 6, 1891, he filed an account.
    To this account objections were filed and an order of reference was then made by the surrogate, to examine the account rendered by the administrator, and to take proof of the facts stated in the petition, and of the claims against or debts of the estate of Honora Callaghan, deceased, and to make report thereon.
    On-December 31, 1891, the referee filed his report, in which he found, among other things, that the total amount of assets of the estate of Honora Callaghan, deceased, which have come to the hands of John B. Callaghan, as administrator, is $662.04. That he expended properly $602.14, and that he has now in his hands available for the payment of debts, $59.90.
    The referee also found the folldwing to be just and valid claims against the estate:
    D. M. Koehler.................................... $304 95
    T. C. Lyman & Co................................. 116 00
    Amsdell Bros...................................... 1,103 00
    On January 18, 1892, and before the report of the referee was considered, George M. Amsdell and Thoedore M. Amsdell, composing the firm of Amsdell Brothers, filed in the surrogate’s office of Kings county a petition setting forth this debt from the estate of Honora Callaghan, and the other debts or claims reported by the referee, and all other necessary facts, and prayed the disposition of this surplus to pay the debts of decedent, as prescribed by chapter 18, title 5 of Code of Civil Procedure, and that a r citation might issue.
    Thereupon the surrogate made findings sustaining the facts found by the referee, and directed the distribution of the said foreclosure surplus to the next of ldn, without any payment therefrom to the creditors. Erom that decree the creditors appealed,

      Theo. Eurgmyer, for the appellants.

      Moffett db Kramer, for the respondent.
   Pratt, J.:

I think the learned surrogate has proceeded on an erroneous theory in this case. He has held that notwithstanding a deficiency of personal estate, the decedent’s debts and funeral expenses are not payable out of surplus moneys arising from the sale of his real estate made within four years, under foreclosure, apparently on the theory that the real estate is discharged from 'the lien or trust for the payment of debts after the expiration of three years from the original grant of letters of administration. That is not the law, as I understand it. A creditor’s right to apply to the Surrogate’s Court for the sale of real estate to pay debts, etc., is now limited to three years after issuance of original letters (§ 2750), except in the case provided for in section 2751. But it by no means follows that the real estate is thereby discharged from those claims so long as it remains in the hands of legatees or heirs at law. That limitation, and the other provisions bearing on the point, were intended for the protection of bona fide purchasers of real estate made after the lapse of three years. (Slocum v. English, 2 Hun, 78 ; aifd., 62 N. Y. 191.) The heir at law or legatee derives only an incidental benefit from this provision, that after that lapse of time, his purchaser may no longer fear unknown liens arising from decedent’s debts and hesitate to buy from that cause.

Various considerations seem to me sufficient to sustain this view. An owner of property holds it primarily in trust for his creditors. (Candee v. Lord, 2 N. Y. 269.) The law respects this trust, especially for the benefit of creditors. During the lifetime of the owner lie is bound to respect it, and all his honest dealings therewith bind his creditors on the theory of privity. But even that rule is designed mainly for the protection of bona fide purchasers. (Candee v. Lord, supra.) At the death of the owner, the estate passes by mere succession to his legatees or heirs at law. They pay nothing therefor, and stand in the same relation to it which voluntary grantees occupy during his lifetime. A resulting trust or equitable lien arises in favor of creditors and for funeral and administration expenses. The able opinion of Mr. Justice Cullen in Mead v. Jenkins (29 Hun, 253), shows that the remedy by sale under the authority of the surrogate was formerly limited only by reasonable lapse of time. That opinion and that of the Court of Appeals (95 N. T. 34, 35), show that even a purchaser who bought with notice- of a creditor’s claim would not be protected, notwithstanding the statute of 1873 (chap. 211). He is not, in that case, a purchaser in good faith. This clearly shows that the particular limitation (§§ 2750, 2751) does not discharge the lien or trust, as against the legatee or heir at law. Indeed, nothing can accomplish a discharge of that lien or trust in his favor except payment or the Statute of Limitations.. He remains liable personally for debts to the extent of the property which he receives. (Code, §§ 1837, 1843.) If he sells it to a bona fide purchaser after three years, the consideration received is merely substituted in place of the land, and, upon familiar principles of .equity jurisprudence, may be followed, and, in such a case as this, may be taken to pay his obligation.

The provisions of the Code (§§ 2797-2799) were designed to follow this general view in cases where a surplus arises from the sale of real estate “ within four years ” after the issuance of original letters. (§2798.) Why otherwise the limit of “ four years ?’’ The limit for the commencement of the creditor’s proceeding under sections 2750, 2751, is three years. Suppose no such proceeding and a sale on foreclosure during the fourth year resulting in a surplus. It must, nevertheless,be paid into the Surrogate’s Court under section 2798. To what end is this requirement except that the decedent’s general creditors may be protected ? Nor is this limited to cases where proceedings have been or shall be duly commenced in the Surrogate’s Court under sections 2750, 2751. It applies, just as in this instance, to cases where such an application has been rendered impossible because tlie real estate was swept away by a sale within the three years. And for aught that I can see it also applies to any case of a surplus arising from a sale within four years after the letters. Surely the court in which the foreclosure occurred would be competent to settle all rights of the parties to that action in the surplus. If it was the design of the statute to limit the distribution to them, why then pay it to the Surrogate’s Court except for the reason that the administrator was there to protect himself for expenses of administration, the funeral expenses, and to represent general creditors, none of whom would be necessary parties to the foreclosure suit ? And, again, it is certain that this money must be distributed under section 2799, and the Surrogate’s Court is bound to investigate and settle the “ rights and priorities ” of interested persons. What priorities are there to settle in such a fund except among classes of creditors under section 2793 ? We should scarcely think of using that phrase of the right of a creditor over a legatee or heir at law.

I think the decedent’s general creditors and funeral expenses ought to have been paid out of this fund, so far as necessary, and that the decree should have provided for such payment. There is no suggestion that any of these claims were barred by the Statute of Limitations, nor do I see how such a suggestion could have been reasonably made.

We, therefore, reverse the decree so far as it relates to appellants, and direct that they shall have their share of the fund, and that their costs of this appeal shall be paid therefrom as a part of the expenses of distribution. The judgment will be without prejudice to any remedy which the other creditors may have, if any.

Barnard, P. J., and Dykman, J., concurred.

Order reversed as to appellants ; they to have their share of the fund with costs of appeal as part of the expense of distribution. This judgment to be without prejudice to any remedy which other creditors may have.


source: Caselaw Access Project

author: Pratt, J.:

license: Public Domain

text:
    The People of the State of New York ex rel. The City of Yonkers, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      Compelling a railroad, company to take a street across its tracks — chapter 62 of Laws of 1853 — highways.

    An application by a municipality to compel a railroad company to take a street across its tracks, under the provisions oí chapter 62 of the Laws -of 1853, is without merit, when it appears that taking the street across the tracks would result in no public benefit, but subserve only private interests, and would subject the people oí the vicinity to danger and the railroad company to inconvenience in curtailing- its facilities for the operation of its road.
    Where a highway is dedicated to the public use, the amendment of 1861 of the Revised Statutes (Laws of 1861, chap. 311), which declares that every public road which is not opened or worked within six years after it is laid out, shall cease to be a road for any purpose whatever, applies.
    The fact that a highway has ceased to be a road, by force of said amendment of 1861, is fatal to an application to compel a railroad company to take such highway across its tracks under the act of 1853.
    When a railroad company has acquired title to a piece of land sought to be turned into a highway by a municipality, the land cannot be taken by the municipality for such other public use without special legislative authority and compensation to the owner.
    A railroad company cannot be required, under the act of 1853, to take a street across its tracks where the tracks are in constant use for storing cars and for freight depot and yard purposes.
    Appeal by the relator, the city of Yonkers, from a judgment of the Supreme Court, rendered at the Westchester Special Term, and entered in the office of the clerk of Westchester county on the 7th day of January, 1893, denying the relator’s application for a peremptory writ of mandamus after a trial by the court without a jury of the issues raised by the return to an alternative writ of mandamus.
    Among the facts found by the trial judge was one to the effect that some of the tracks across which it was sought to compel the defendant to take the extension of the street in question are used exclusively for storing cars and for freight depot and yard puiqioses.

      Ralph E. Prime, for the relator.

      Framh Loomis and Lra A. Place, for the respondent.
   Pratt, J.:

This is an appeal from a judgment denying the relator’s application for a writ of mandamus, and of costs to the defendant against the relator.

This proceeding was brought by the relator to compel the defendant by writ of mandamus to take Locust street, in the city of Yonkers, across its tracks, under the provisions of chapter 62 of the Laws of .1853. We think it is plain from the evidence and the findings that there is no merit in this application.

It could result, if granted, in no public benefit, but would sub-serve only private interests; indeed, the people of that vicinity would he subjected to danger in the operation of the railroad, and the defendant would be subjected to much inconvenience in the curtailing of their facilities for the operation of their railroad.

We also think that the point taken by the defendant that the road in question was not opened or worked within six years from the time of its being laid out was fatal to the application and brought it squarely within the amendment to the Revised Statutes passed in 1861 (chapter 311 of the laws of that year).

It is not necessary to discuss and distinguish the cases which do not seem to be in full accord upon the subject, for the rule seems to be that where a highway is dedicated to the public use the amendment before referred to applies.

The case shows that the defendants had acquired the title to the piece of land sought to be turned into a public highway. Under such circumstances it could not be- taken for another public use without special legislative authority and compensation to the owner; neither can the defendant be required to take the street across its tracks under chapter 62 of Laws of 1853, where the tracks are in constant use, as was proved in this case. (D. & H. C. Co. v. Village of Whitehall, 90 N. Y. 24; Prospect P'k & C. I. R. R. Co. v. Williamson, 91 id. 552.)

The judgment should be affirmed, with costs.

Barnard, P. J., concurred; Dykman, J., not sitting.

Judgment and order affirmed, with costs.


author: Pjratt, J.:

text:
    Thomas Cochran and William W. Flannagan, as Trustees, Respondents and Appellants, v. The Anglo-American Dry Dock and Warehouse Company and William G. Parsons, Defendants; William F. Buckley and Ira N. Stanley, Intervenors, Appellants.

      Corporation mortgage — bonds held as collateral security— right of redemption — judgment of foreclosure —insolmency of the corporation — proof as to the actual indebtedness to each bondholder.

    A judgment, in an action brought to foreclose a mortgage made by a corporation to secure its bonds, which gives to a person who holds certain of the bonds as collateral security for a debt of the mortgagor a right to a dividend, out of the proceeds of the foreclosure sale, on the face of the bonds held by him until he receives the amount of Ms debt and no more, and provides that the surplus of Ms dividend, if any, shall be applicable to the payment of other bond creditors under the mortgage, is, in effect, consonant with the finding that the mortgagor is entitled to redeem the bonds held as collateral security.
    The fact that a corporation was insolvent, to the knowledge of its directors, when it issued bonds and made a mortgage to secure the same, does not render the bonds utterly void, when they were given in fair business transactions with the mortgagor, the obvious purpose of which was to save the corporation and its property if possible, and they were reasonably adapted to that end and not out of the ordinary course of raising money or adjusting ordinary affairs, and the corporation received clear benefit from the transactions, and there has been no rescission or offer to rescind or restore the benefits which it received.
    When, in an action brought hy the trustees of a corporation mortgage for its foreclosure, the purpose of an order of reference is that every party in interest shall be allowed to appear before the referee and contest the validity of, or the amount due upon, any of the bonds secured by the mortgage, the referee should take such testimony as may inform the court of the actual indebtedness of the corporation, to each holder of a bond, no matter what may have been conceded as to the amount of indebtedness hy the corporation through its trustees.
    Appeals by tlie plaintiffs, Tilomas Cocbran and William W. Flannagan, as trustees, from parts, and by William F. Buckley and Ira N. Stanley, intervenors, from the whole, of a judgment of tbe Supreme Court, rendered at the Kings County Special Term, and entered in the office of the clerk of Kings county on the 29th day of December, 1892, confirming the report of a referee in foreclosure, and directing tbe sale of the mortgaged premises.

      Clwence ■ F. Birdseye, for tbe plaintiffs (appellants and respondents).

      Artemus H. Holmes, for Buckley, iuterveuor (respondent and appellant).

      William H. Dyclcman, for Stanley, intervenor (appellant).
   Pjratt, J.:

This is an action to foreclose a mortgage made by the defendant company to the plaintiffs, as trustees, to secure a series of 500 bonds of §1,000 each, dated August 5» 1886. All the bonds, save twenty, have been issued, and are still outstanding. The mortgagor did not defend. W. F. Buckley, a stockholder and creditor of the mortgagor, applied io be made a party defendant. An order of reference was made on that motion to compute the amount due, and Mr. Buckley was allowed to intervene with leave to defend and contest as to the amount due, and he and every other party in interest was thereby allowed to contest the validity and amount due upon any of the bonds. Mr. Buckley, in both above capacities, and Richard Gurney, Jr., and Ira N. Stanley, as stockholders, availed themselves of the privileges provided by this order of reference. The referee made his report. The plaintiffs and Buckley and Stanley excepted thereto. Their exceptions were argued before and overruled by the Special Term. Judgment was entered to this effect December 29,1892, directing a sale of the mortgaged premises. These exceptants have each appealed from parts of the judgment.

The referee found that the mortgagor was insolvent when the mortgage was made, and had been insolvent for a long time prior thereto, but that the mortgage was not made in contemplation of insolvency.

It appears by the findings, without exception, that the mortgage in suit was the third one which liacj been made by the mortgagor. The first one was made August 15, 1881, to said Buckley and the plaintiff Cochran, as trustees, to secure a series of 800 bonds of $1,000 each, bearing six per cent interest, payable on or before May 1, 1896. These bonds were all sold to the Guarantee Trust and Safe Deposit Company of Philadelphia, and are still outstanding. The mortgagor afterwards became indebted to that company in $43,500; and, on April 12,1886, made its second mortgage to that company to secure ¿he payment of that indebtedness on or before April 14, 1889, with interest. It also became indebted to other persons in large sums, and the mortgage and 500 bonds in suit were authorized by its board of trustees for the purpose of paying the debts accrued subsequent to the first mortgage, and in order to raise money for uses of the corporation. On August 11,1886, the mortgagor’s board of trustees resolved that after applying so many of these new (500) bonds at par as might be necessary to liquidate its existing floating indebtedness, the balance should be deposited with the Philadelphia company as collateral for the $43,500 debt secured by the second mortgage. It was contemplated that that company should sell those bonds and pay'that debt out of the proceeds of such sales and apply the balance of such proceeds to the uses of the mortgagor as it might require. That resolution authorized the delivery of the mortgagor’s note to the Philadelphia company for the $43,500 debt. The precise course authorized by this resolution was not pursued. On the contrary, the mortgagor’s officers settled with the Philadelphia Trust Company for the debt secured by the second mortgage by giving its note dated at Philadelphia, August 17, 1886, for $43,408.74, with interest, payable on demand, and delivered 284 of the 500 new bonds as collateral thereto, with the agreement that the holder might sell that collateral at any broker’s board or at public or private sale, -without advertisement or notice, and apply the proceeds in payment of that sum and interest, returning the surplus, if any, to the make]’, and the second mortgage was thereupon canceled. So that the mortgage in suit became the second mortgage and will be hereafter spoken of as such. This Philadelphia company did not sell any of these bonds as contemplated by the resolution of August 11, 1886. There was no market for them. It held the note and the 284 bonds until November 15, 1890, and then, after repeated demands for payment of the note, gave formal notice that it would sue the bonds. It also gave public notice of its proposed sale for November 25, '1890, at the exchange in Philadelphia, of which proposed sale the mortgagor had due notice. It was represented at the sale through Mr. Simpson, its treasurer. The bonds were sold at the time and place specified in the notice and they were bid in by the trust company at $5,000. But the referee has found that the sale was not fairly conducted; that the trust company intentionally discouraged and prevented any competition at tbe sale, and thus was enabled to,'and did, bid in tbe bonds at about one-eighth ol their value. The referee lias also found that the trust company before the sale agreed to give the mortgagor an opportunity to-redeem the bonds after the sale, and that it, in this way, prevented competition at the sale. lie holds that this sale ought not to prevent the mortgagor from redeeming these 284 bonds. The trust company subsequently sold these bonds and its claim to Drexel, Morgan & Co., for §43,862.10, on November 28, 1890, and they assigned them to Arthur C Yaughn. The proofs show that this sale to Yaughn was on February 14, 1891, in consideration of one dollar. The referee has included the whole principal sum of these 284 bonds and the interest thereon, in the amount due under this mortgage, but he has carefully stated that the debt for which they were held as collateral, including interest, was but $47,480.72, and that Yaughn is entitled only to that sum with interest for those bonds. The plaintiff contends that this is erroneous. We think not. The finding in substance is that Drexel, Morgan & Co. took no better title-than the trust company had to these bonds and that Yaughn is in no better position. We see no occasion to criticise this disposition • of Yaughn’s holdings.

The only question left, on this branch of the case, is whether or not the judgment follows these findings in this respect. As we read its provisions it protects the rights of the parties as thus decided by the referee, and that seems to be the view of the parties who have-appealed. It provides that the sheriff, in distributing the proceeds, of the sale, shall pay to' the holders of these bonds, not the sum due on the face of the bonds, but the sums found due to the individuals who hold them. The provisions of the judgment in reference to-payment in bonds and coupons by purchasers at the sale may seem somewhat confusing on first reading, but the effect thereof is simply to give the individual who holds bonds as collateral the right to a dividend on the face of his bonds until he gets the amount of his debt, but no more. If such holder’s dividend is greater than the amount actually due to him upon his debt, the surplus, if any, inures-to the benefit of the mortgagor; that is to say, it remains in the sheriff’s hands applicable to the sums due to other bond creditors-under the mortgage. This, in effect, enables the mortgagor to> redeem these bonds, and that, upon these findings and the evidence, is in consonance with justice in the premises.

We now proceed to examine other questions. It is claimed that because the mortgagor, being a corporation, etc., was insolvent, and its directors were cognizant of that fact, all acts through which they secured bonds under this mortgage and the bonds themselves in their hands are utterly void, because necessarily in contemplation of insolvency within the meaning of that phrase as used in the statute. We do not thus understand the rules governing the case. Speaking generally, these bonds were given in fair business transactions with the mortgagor, the obvious purpose of which were to save the company and its property, if possible; and they were reasonably adapted to that end, and not in any respect out of the ordinary course of raising money or adjusting ordinary affairs. The company received clear 'benefit from these transactions, and there has been nothing like rescission, or any offer to rescind or restore those benefits which it received. The case, therefore, seems to fall within the rule of Dunscombe Case (84 N. Y. 190). We think the referee was right in holding that the bonds were not utterly void.

We think, however, that the judgment must be reversed, and the case sent back to the referee to. take testimony with respect to the actual merits of the claims for which all the bonds, other than the 284 above alluded to, were held. The purpose of the order of ‘reference was that Buckley and every other party in interest should be allowed to appear before the referee and contest the validity or •amou/nt due upon any of the said issue of bonds. This means that the court desired information of the actual indebtedness of this company to each holder of a bond. No matter what may have been conceded as to the amount of indebtedness by the company through its trustees, that may have been erroneous or even fraudulent. . This intervention was allowed for the purpose of enabling stockholders .and creditors to raise and litigate in this summary manner any and ■every question which they could raise in any manner, or in any .action or proceeding. This, be it observed, is not at all inconsistent with the point above decided, viz., that the possessors of these bonds .should not be allowed to participate at all in the proceeds of this ■sale of the mortgaged premises. If they were honest creditors, or advanced money as a present consideration for the bonds, they stand secured for their honest claims, the same as any other honest creditors to whom bonds were issued, but only to the extent of the merits of their respective claims.

Without holding that the provisions of this judgment are erroneous in respect of the right of'a purchaser at the mortgage sale to make payment in bonds, we think that the new judgment should more clearly express the plan adopted in order to avoid confusion in that respect. For example, if Mr. Vaughn should purchase the property for the sum of $284,000, he shall not pay that sum by delivering his 284 bonds. Those bonds would pay only the amount of his claim, say $43,862.10, with interest on that sum. Doubtless this was the meaning of the judgment, but its language leaves this point in some confusion.

Many of the referee’s findings might stand, as supported by the evidence, but we think the wiser way will be to reverse this judgment wholly and set aside this report wholly, and to refer the case back to the referee with directions to treat the case before him as still open, and then proceed to take further testimony or listen to any motion which shall bear upon the honesty, fairness and justice of the claim of each bondholder, and then make a new report, so that the case may be presented de novo upon exceptions.

The costs and disbursements of this appeal sli mid be allowed to defendants Buckley and Stanley, and the disbursements on this appeal of the plaintiffs should be allowed to them, payable out of the proceeds of the sale of the mortgaged premises.

Barnard, P. J., concurred; Dykman, J., not sitting.

Judgment reversed and case sent back to referee to take testimony as to merits, in accordance with opinion. Order to be settled' by Judge Pratt.


author:
Barnard, P. J.:
      Pratt, J.

text:
    Maria L. Davis, as Administratrix, etc., of Ira C. Davis, Deceased, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      jOpinion evidence — -not competent, where the facts a/re descriptive gnd intelligible.

    On the trial of an action brought to recover damages for a personal injury caused - by the giving way of a partition or crib ” in certain coal storage bins, a civil engineer was permitted to answer, as a witness for the plaintiff, questions calling for his opinion as to the safety of the crib in question.

      Held, that this was improper, as the questions and answers trespassed upon the functions of the jury in deoiding upon questions of fact (Pratt, J., dissenting).
    The doctrine applied that opinions are to be admitted in evidence only where the facts are not descriptive and cannot intelligently be communicated to others.
    Appeal by the defendant, the New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Rockland county on the 5th day of December. 1892, upon a verdict rendered at the Rockland Circuit, and from an order denying the defendant’s motion for a new trial, made upon the-minutes.
    The action was brought to recover damages for the death of the plaintiff’s intestate,'which was alleged to have resulted from the ■defendant’s negligence in the construction and maintenance of a “ crib ” or partition in certain coal storage bins on a dock at Piermont, which gave way and precipitated a mass of coal upon the •deceased while he was engaged in shoveling coal as an employee of the defendant.
    It was claimed by the plaintiff that the defendant was guilty of negligence : (1) Because of improper construction of the “ crib ” or partition; (2) because of improper material used in the construction ■of the partition; (3) because of failure to properly maintain the partition, and (4) because of improper removal of the coal from the bins or compartments formed by the partitions.
    On the trial the plaintiff introduced as a witness John W. Ferguson, who testified that he was a civil engineer, and had been for about fifteen years ; that he had been in the employ of the defendant railroad company, and had constructed for it structures for retaining coal; that he constructed the trestle at Piermont on which tbe railroad track was tliere; that lie liad nothing to do with the erection of the coal bins there, but built the boxes by which they were partitioned.
    The witness continued as follows :
    “ These boxes consisted of hemlock planks two inches thick and twelve inches wide, I think, and about sixteen feet long. They were made by simply two sides, tliere being no bottom or top to them, and they were separated one from the other about eighteen inches with a vertical piece between the sides. (Referring to model) I should say that was a fair representation of the box.
    “ Q. What Avas the intent and purpose of these structures ? That is, was it intended that they should be permanent or temporary ? A. Temporary. This pier at Piennont Avas divided into a series of bins, separated by partitions called cribs. The cribs were made of the boxes I have just described.
    “ Q. How were these boxes intended to be fastened together, if at all ? A. They were not intended to be fastened together, that is, one above the other.

      “ Q. What was intended to keep them in their places ? A. By tie pieces extending out either side, and by the weight of the coal placed between the two boards forming the boxes. The tie pieces are called anchors. Those sticks (referring to model) represent those anchors.
    “Q. What was the length of those anchors ? A. Well, I could not say as to the length used at any one time, but when the bins were first used, they were hemlock boards about sixteen feet long.”
    Thereafter, in the course of his direct-examination, the witness was asked the following questions by the plaintiff’s counsel:
    “ Q. State what, in your opinion, should have been the length of anchors in the division cribs between these bins in this structure when the coal qii one side is built to the height of twenty-five to forty feet ? [Objected to on the same grounds as before. Objection overruled. Defendant’s counsel excepts.] A. From eight to ten feet to sustain it, extending on each side of the box or into the pile of coal that was high.
    “Q. What is the purpose of these anchors in this structure? [Objected to as incompetent and improper, as the witness cannot state Avhat the purpose is.]

      “ The Court. — If lie lias any special knowledge as to the purpose which they subserve in sustaining a pile of coal, he may state it. [Objection overruled. Defendant’s counsel excepts.]
    “ A. They serve two purposes. One to keep the boxes together, one above the other, by means of the cleats, and the other to tie the uppér ones back to the pile of coal.
    “ Q. State whether an anchor eighteen inches in length, at a jioint anywhere above a foot and a half from the surface, would sustain any pressure ? [Objected to by defendant’s counsel as incompetent and improper and a matter of speculation. Objection overruled. Defendant’s counsel excepts.] A. In my judgment, it would not.

      “ Q. State whether or not an anchor would have to extend into the coal beyond the line of the natural rest of coal in order to tie the structure to that pile of coal ? [Objected to by defendant’s counsel on same grounds as before. Objection overruled. Defendant’s counsel excepts.] A. Yes, sir; it worild have to. That line varies with the height from the ground, being as many feet from the crib as you are from the ground at any given point. That is to say, at a point ten feet from the ground, the line of rest would be ten feet from the crib, since the coal stands on an angle of forty-five degrees. I directed the making of the boxes used at Piermont. I was in the employ of the Erie Railroad Company. I did not have the anchors made.' The boxes were made of hemlock timber.”

      Lewis E. Ocurr¡ for the appellant.

      Frcmh Oomeshy, for the respondent.
   Barnard, P. J.:

The death of the plaintiff’s intestate was occasioned by the same accident which occasioned the injury to George Gerbig, whose case was heard upon appeal in the court at the last December (1892) term. The questions put to the witness Eerguson, a civil engineer, calling for his opinion as to the safety of the crib which gave way and caused the accident, are similar in principle to the questions considered in the Gerbig case. It was therein held that the questions admitted assumed the functions of the jury upon questions of fact. The judgment and order refusing a new trial should be reversed and a new trial granted, costs to abide event, on the opinion in the Gerbig case.

Dykman, J., concurred.

Pratt, J.

(dissenting):

This is an appeal from a judgment entered upon a verdict by a jury, and from an order denying a motion for a new trial upon the minutes.

It is objected that a photograph of a portion of the bin where the accident did not take place was admitted in evidence.

It was admitted solely for the purpose of showing the plan of construction, and so qualified by the court. There was no dispute that it correctly showed the general plan of construction, and in no way could mislead the jury or prejudice the defendant. (McCarragher v. Rodgers, 120 N. Y. 532, and cases there cited.)

Neither do we think it was error to admit the opinion of experts. The questions in issue were not subjects of general knowledge, but involved engineering skill and long practical experience to elucidate.

It has always been allowed to examine experts in mechanics, such as bridge building, the operation of all kinds of machinery; in fact, in almost every art and science.

The structure of these bins, the direction and amount of strain to be applied when used ; the size, strength and durability of the material and the manner in which it was constructed, were subjects that could not well be placed before the minds of the jury by a mere description. It required peculiar knowledge and skill, and was the result of practical experience.

In Oties v. Cowles Elecrtric S. & A. Co. (7 N. Y. Supp. 251), the plaintiff was injured by the fall of a derrick, and the court held that it was competent to show by the evidence of experts what was a safe and proper way of erecting and supporting the mast.

The rule is well stated by Mr. Justice Brown, in Van Wycklen v. The City of Brooklyn, The governing rule deduced from the cases permitting the opinion of witnesses is, that the subject must be one of science or skill, of one of which observation and experience have given the opportunity and means of knowledge, which exists in reasons rather than descriptive facts, and, therefore, cannot be intelligently communicated to others not familiar with the subject, so as to possess them with full understanding of it.” Under this rule we think the evidence was properly admitted.

It may be said that all expert evidence, although given in the form of an opinion is, nevertheless, this of facts which skill and experience have taught the expert always exist in connection with certain other facts.

Take the ordinary case of asking a physician or surgeon the cause of death where full history of the case is given. He answers in the form of an opinion, but it is, nevertheless, a fact which he knows from experience always follows the facts submitted in the particular case.

Such facts are known to the expert to the same degree of certainty that a mathematician knows the result of a problem in mathematics.

Much stress is laid upon the contention that the evidence does not support the verdict. If it was the duty of the jury to believe all the testimony of defendant’s witnesses without' qualification, and notwithstanding the other facts in the case, there may be some foundation for this contention, but it was the right of the jury to pass upon the whole evidence, and we cannot say the verdict is not fully sustained by the evidence.

Taking into consideration all the evidence, the jury were at liberty to find neglect of duty on the part of defendant in several particulars, and they have done so, and the verdict must stand.

The judgment must be affirmed, with costs.

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

       The opinion of the General Term, in the case of Gerbig v. New York, Lake Erie & Western R. R. Co., is as follows:
      “Barnard, P. J. The plaintiff, on the 27th day of November, 1891, was injured by the giving way of a partition by which a great mass of coal was thrown upon him. He was an employee of the defendant, and was loading coal from a bin on the pier at Piermont. After the bin in which he was working had been partially removed,- the partition between this bin and the next one east gave way, causing the accident. The partition was constructed with hemlock timber. The partition and bins were constructed in the usual way, and there was no objection that the accident was caused by an unsafe or faulty plan. Proof was given tending to show that the timber (hemlock) was such as is commonly used for that purpose. Under this state of evidence, it was improper to permit this question : ‘You have made cribs or bins or partitions to hold quantities of coal — fifty or a hundred tons. Is hemlock a proper material to use for that purpose ? ’ The question was objected to, and admitted under defendant’s exception. The answer was as follows: ‘ Well, it depends altogether on how you use it, of course. If you use hemlock alone, it is not worth much; but, where I have built bins, we take posts of chestnut, and then hoard them up. Well, the posts hold, certainly. The hemlock is just to keep the coal from running in through the posts. Question. Would the hemlock alone be sufficient to support ? [Same objection, ruling and exception as before.] Answer. No; it would not.’ It was error to permit the question of the sufficiency of the anchors. It was proven that braces of timber were connected with the partition, and run into the next bin, so that the weight of the coal in that bin, when it was filled, would hold, by means of these braces or anchors to the partition. The coal being filled in these braces, and holding them by its weight, a question was received, under defendant’s exceptions, that they were not sufficient to hold the crib work. The Court of Appeals, in a recent case, has examined the admissibility of such testimony. (Roberts v. Railroad Co., 128 N. Y. 455; 28 N. E. Rep. 486.) Under that case these questions were not proper, as exceptions to the general rule of evidence that testimony should consist of facts, and not opinions; that, whenever opinions are admitted, it is in cases where the facts are not descriptive, and cannot intelligently be communicated to others. (Van Wycklen v. City of Brooklyn, 118 N. Y. 424; 24 N. E. Rep. 179.) It is not, therefore, necessary to examine the question whether the proof established a case of negligence on the part of the defendant, under all the proof, as it was given, and assuming this evidence to have been properly received. A new trial may change it. The judgment and order denying a new trial should be reversed, and a new trial granted, costs to abide event. All concur.”


author: Van Brunt, P. J.:

text:
    Jonas H. Lane and Others, Respondents, v. John W. Wheelwright and Others, Appellants, Impleaded with Others.

      Transfers of property by a foreign corporation in contemplation of insolvency.

    The laws of the State of New York prohibiting the transfer by a corporation, in contemplation of insolvency, of any portion of its property, with a view to giving a preference to any of its creditors, do not apply to a foreign corporation.
    Such prohibitions being statutory and not existing under the common law, there is no presumption that the law of another State is the same as the law of New York on this subject, and, where the foreign law is not- proven, the presumption is that the common law still exists where it has once obtained.
    A Massachusetts manufacturing corporation consigned certain goods for sale to a firm in the State of New York, which made advances thereon, less in amount than the value of the goods. The corporation, in contemplation of insolvency, thereafter undertook to transfer the goods in the hands of the New York firm (subject to its claim for advances) to a creditor (being a firm of which the president of the corporation was a member), but no money passed at the time, nor was there any change in the possession of the goods, although the goods were charged to the creditor on the books of the corporation and credited to the corporation on the books of the creditor, and the charge to the New • York firm on the books of the corporation was canceled, and that firm notified. Thereafter, and while the goods were so in the State of New York, attachments were levied thereon in suits brought in that State against the corporation by other creditors.

      Held, that this transaction effected a transfer of the goods from the Massachusetts corporation, which, in the absence of fraud, was effectual to change the title and vest it in the transferee ;
    That this transfer, being by a foreign corporation, was not affected by the pro-u hibition of the New York statute against a transfer nby a corporation in contemplation of insolvency, and, Fence, that the subject of the attachment was not the property of the debtor in the attachments at the time of their levy.
    Appeal by the defendants, John W. Wheelwright and others, from a judgment of the Supreme Court, rendered on a trial at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 19th day of October, 1892, with notice of an intention to bring up for review upon such appeal an interlocutory judgment entered in said clerk’s office June 24, 1892, and an order denying a motion to make the complaint more definite, entered in said clerk’s office July 20, 1892.

      H. Wallis, for the appellants.

      W. R. BarricHe, for the respondents.
   Van Brunt, P. J.:

This action was brought by the sheriff and attaching and judgment creditors in aid of the attachments set forth in the complaint, and the judgments and execution issued thereon to enforce liens claimed to have been created by said attachments, and to remove obstructions to the collection of the judgments out of the attached property.

We think for the reasons stated in the opinion of the learned judge who tried the case in the court below, that the attachments were properly levied, and that the objections to the form of the complaint were waived by not being taken by demurrer or answer. And the only question in respect to which a satisfactory conclusion was not reached, was the question as to whether at the time of the levying of the attachments, the property in question was the property of the debtor in the attachment suits. The learned judge held that the attempted transfer of the property was void because prohibited by the laws of this State, and that in the absence of proof to the contrary, the laws of Massachusetts are presumed to be the same as the laws of this State — the prohibition contained in the laws of this State being against the transfer by a corporation of any portion of its property to give a preference to any of its creditors in conteim plation of insolvency. Therefore, the only questions necessary for us to discuss are: Was there a transfer by the Norton Manufacturing Company, the defendant in the attachment suits, to Eddy & Street of this property subsequently attached? And was such transfer void because contrary to the statutes of this State ?

It appears from the evidence in this case that Mr. Eddy, of Eddy & Street, was the president and treasurer of the Norton Manufacturing Company, the defendant in the attachment suits, a Massachusetts corporation, and that the property which formed the subject-matter of the attachment was situated within this State, having been consigned to the firm of Wheelwright, Eldridge & Co., defendants herein, for sale, upon which said firm had made advances, the amount of goods being more than sufficient to pay such advances. And it further appears that the Norton Manufacturing Company, being largely indebted to Eddy & Street, in July, 1888, a resolution was passed by the directors of said company authorizing Mr. Eddy to protect Eddy & Street against any goods that were sold them in the future, and that subsequent thereto and prior to the 19th of September, 1888, Eddy & Street had sold the Norton Manufacturing Company, goods amounting to somewhere near $5,000, and that the Norton Manufacturing Company had consigned the goods in question, as above stated, to Wheelwright, Eldridge & Co., upon which day Mr. Eddy, under the power given him in contemplation of the insolvency of the Norton Manufacturing Company, transferred all the goods in the hands of Wheelwright, Eldridge & Co. to Eddy & Street, and Wheelwright, Eldridge & Co. were notified thereof. Such transfer took place on the 19th of September, 1888, and Eldridge was present with Mr. Eddy. No money passed at the time, nor was there any change in the possession of the goods. The transfer was effected by such goods being charged on the books of the Norton Manufacturing Company to Eddy & Street, and credited on Eddy & Street’s books to the Norton Manufacturing Company, and the charge to Wheelwright, Eldridge & Co. of these goods by the Norton Manufacturing Company was canceled. These entries were made by Mr. Eddy personally, no one having any authority to act but himself.

It would seem that the result of these transactions was to change the title in these goods from the Norton Manufacturing Company to Eddy & Street; and that all was done which could be done to effect such transfer. The goods in question were in the possession of Wheelwright, Eldridge & Co. Neither the Norton Manufacturing Company, nor Eddy & Street, were entitled to the possession of the same, they being the subject of a pledge for advances made by Wheelwright, Eldridge & Co. Such being the case, unless the laws of New York prohibiting the transfer by a corporation of any portion of its assets to give preference to a creditor in anticipation of insolvency, applied to this transfer, the title to the goods in question were in Eddy & Street.

It seems to us clear that such laws do not apply to a foreign corporation. These prohibitions being statutory and not existing under the common law, there is no presumption that the law of Massachusetts was the.same as the law of New York, the only presumption being, where the foreign law is not proven, that the common law still exists in those countries where the common law obtained.

Applying this rule to the case at bar, there was no prohibition against the Norton Manufacturing Company transferring these goods to Eddy & Street; and in the absence of fraud such transfer was effectual to vest the title in Eddy & Street.

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

O’Brien and Ingraham, JJ., concurred.

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


author: Yak Brunt, P. <L :

text:
    John B. Hagenbuchle, Respondent, v. Louis Schultz, Appellant.

      Partnership accounting — referee’s report — statement of accounts — extra allowance.

    The referee’s report in an action brought to obtain a partnership accounting, should contain a plain, simple and intelligent statement of the accounts between the parties, and show how the balance was struck or arrived at.
    Articles of copartnership provided that letters patent owned by the individual partners should remain their individual property, but that the copartnership should be entitled to the use of the improvements which were the subject of such letters patent during the existence of the copartnership, upon assuming and meeting all the expenses and payments which might be incurred in maintaining title to such patents.

      Held, that one of the partners was not'entitled to have allowed him moneys paid hy him for obtaining patents, and which were not expenses incurred in maintaining letters patent.
    In an action brought to obtain a dissolution of a firm and for an accounting it appeared that the articles of copartnership provided that the partners should be entitled to draw certain stated salaries, to be charged as expenses of the business before any division of profits, and that there should also be paid before’ any division of profits, to one of the partners (the defendant) as expenses of the partnership, three per centum of the gross receipts of the business. A substantial part of the copartnership business was transferred to a corporation, in the stock of which both partners were interested; they agreed that their stock should be voted as a unit, and the defendant agreed that if he should be elected president of such corporation at a certain salary the plaintiff should be released from all liability by reason of the provision of the copartnership articles giving the defendant three per cent on the gross sales o'f the firm.

      Held, that this agreement was a recognition of the continued existence of the copartnership, and of the rights of the parties thereunder, including the right to draw the fixed salaries stated in the articles, until the dissolution of the copartnership.
    For the purposes of granting an extra allowance in an action for a partnership accounting, the amount for which judgment is obtained is to be deemed the amount involved.
    Appeal by tlie defendant, Louis Schultz, from a judgment of tlie Supreme Court, entered in the office of the clerk of the city and county of New York on the 30th day of March, 1892, upon the report of a referee, and from an order of the Supreme Court, also brought up for review, made at the New York Special Term at Chambers, and entered on the 21st day of March, 1892, granting the plaintiff an extra allowance.

      JEseh Oowen, for the appellant.

      W. T. M. Melliss, for the respondent.
   Yak Brunt, P. <L :

The plaintiff and defendant in this action were copartners doing business under the firm name of The Excelsior Quilting Co., L. Schultz & Co., proprietors; ” and this action was brought for the dissolution of such copartnership, and to require the defendant to render an account of all money received by him in said business,' and to pay to the plaintiff his share thereof, and also for the disposition of certain personal and real estate. The defendant answered, and upon the coming in of said answer it was stipulated between the parties that thé complaint should be amended, and it was deemed amended by striking therefrom all allegations in respect to the real estate therein described, and also as to certain personal property ; and the action was left to proceed for a dissolution of the firm and an accounting. A reference being ordered of the issues remaining, a trial was had before the referee, who reported in favor of the plaintiff, and a motion being made for an extra allowance, an order for an extra allowance of $2,000 was made; and from the judgment entered upon said report and order this appeal is taken.

The investigation of the facts supposed to be contained in this record has been rendered exceedingly laborious because of the manner in which the record has been made up, the alleged judgment roll containing a large number of papers which have no proper place in a judgment roll, viz., the findings of fact which have been refused, the exceptions to the findings which do not appear to have been filed before judgment, and the affidavits and order in respect to the extra allowance ; and our investigation has been by no means aided by the manner in which the counsel for the respondent has presented the facts of the case in his brief, it being claimed in the brief that certain facts are established by the evidence, without any reference whatever, except in one or two immaterial instances, to any testimony given in the case And, furthermore, upon an investigation of the findings of fact and conclusions of law contained in the referee’s report it has been impossible to ascertain the basis upon which the referee arrived at the amounts for which he rendered judgment. Even the plaintiff’s, attorney seems to have given this up as a hopeless task as, from the statement he has presented, it is apparent he has not solved the riddle. The duty of the referee was to make a plain, simple, intelligent statement of the accounts between the parties and to show how the balance was struck or arrived at. This he has utterly failed to do, and from the figures contained in his report, it is impossible to arrive at the amount which he has reported. The discrepancy may not be large, but accuracy is certainly essential in cases of this description. If such an account had been presented in the referee’s report, this court might have disposed, perhaps, of all the questions involved without ordering a new trial, but as the case now stands it is impossible for us to determine what is the judgment •which should have been entered. And it is to be observed that the defendant seems to have thrown every obstacle in the way which it was possible for his ingenuity to suggest, to hinder and hamper the investigation of the facts relating to his connection with the business of the copartnership, which by this action was sought to be dissolved, and his conduct and attitude are not such as commend his case particularly to the favorable consideration of the court.

We will, however, endeavor to point out some of the contentions advanced upon the part of the defendant which cannot be sustained, and others upon the part of the plaintiff which are evidently erroneous, and also to show that the various experts examined were evidently entirely ignorant of the business which they professed to perform.

In order that the questions to be discussed may be understood, it will be necessary to refer to the articles of copartnership entered into between the parties in February, 1886, and which seem by agreement to have been extended to the time of the commencement of this action. Such articles, after providing for the formation of the copartnership and that the copartners shall contribute to the copartnership certain stock and good will, provide that letters patent owned by the individual partners, not excepting a certain license owned by the defendant, should remain the individual property of the partners, but that the copartnership should be entitled to the use of the inrprovements which are the subject of such letters patent and license during the existence of the copartnership, upon assuming and meeting all the expenses and- payments which might have been incurred and might be incurred in maintaining title to suoli patents, it being understood that for the use of the patent, under the license the copartnership should jray all sums which might t>e due and become due, and which the defendant should be obligated to pay at the time of his acquiring such license, together with all expenses of litigation in which such letters patent might be involved.

Now it is claimed upon the part of the defendant that certain items should have been allowed him which were excluded by the referee in reference to these patents, under the clause in the articles above quoted. But we are of opinion that the referee was entirely right in excluding these items, for the reason that they were evidently moneys which were paid by defendant for letters patent, and were not expenses which were incurred in maintaining letters patent. This is apparent from the defendant’s own testimony in reference to the $6,250 paid in respect to the Koch patent. The defendant testifies as follows : I had no agreement with Koch any more than that he was to assign the patent to me for the consideration of $6,250.”

The same is true of the item of $808.20. It appears from the bill of items furnished that certainly all of that amount (except, perhaps, the sum of $72.25) was paid in the procuring of letters patent. And the same applies to the item of $700. These items were not expenses incurred in maintaining title to the letters patent. And that they were not intended to be so embraced is evident from the provision that upon the dissolution of the partnership, each party was to be placed in the same position, with respect to these letters patent and licenses, as though the partnership had never-been formed, the provision being that on the dissolution of the partnership or the retirement of the plaintiff the latter loses all right to the letters patent owned by the defendant, and the defendant loses all right to the plaintiff’s letters patent.

The next question is that presented in respect to the salary pro-, vided for the plaintiff and the defendant in the articles. It was provided therein that the defendant should be entitled to draw $2,500, and the plaintiff $1,200, in weekly sums, and that these payments should be charged as expenses of the business before any division of profits, and that there should also be paid before any division of profits, to the defendant as expenses of the partnership, three per centum of the gross receipts of the business. It appears from the evidence that in February, 1888, a substantial part of the business was transferred to a stock corporation called the Excelsior Quilting Company, and that both the plaintiff and the defendant were interested in the capital stock, and on the 23d of February, 1888, an agreement was entered into between the parties to this action that-their stock was to be voted upon as a unit, and the defendant agreed that if he should be elected president and secretary of the company for two terms at a salary of $5,000, and five per cent of the net. profits, so that he would have received such salary for two years, the plaintiff should be released from all liability by reason of the provision of the copartnership articles, which gives to the defendant three per cent on the gross sales of the firm of L. Schultz & Co. This agreement clearly contemplated the continuance of the business of Schultz & Co., and that it should not be deemed dissolved, and in fact it never was dissolved as found by the referee. It also contemplated the fact that the parties were entitled to draw certain sums to be charged as expenses against that business, and they agreed, one with the other, that under certain circumstances the defendant should relinquish a certain portion of his rights under the copartnership agreement, a clear recognition of the existence of the copartnership and the rights of the parties thereunder.

Therefore, as to the amounts which the partners were entitled to ■draw, the'provisions of the copartnership articles continued until the dissolution of the copartnership, and the defendant was entitled to the salary as claimed by him.

The question as to the salary of Wagner, who was employed by the copartnership as bookkeeper and assistant, is a question of more difficulty. It is exceedingly doubtful upon this record whether Wagner was entitled, after the formation of the quilting company and after he had ^ virtually ceased to render any service to the copartnership, to draw his salary under this agreement.

There is also a manifest error in the manner in which the expert for the plaintiff makes up his accounts. In the statement prepared by him showing the partnership assets and liabilities of Schultz & Go., he remarks that the figures indicate that the plaintiff had drawn $1,745.55 less than the defendant, and that that amount was, therefore, due to the plaintiff at the date of the account, and he treats it apparently as a liability as against the defendant. This is clearly erroneous. All that there was due to him, so far as this item was concerned, from the defendant, was one-half of that amount, because as soon as he received one-half of the amount from the defendant, the drawings of both were equal.

The learned referee, in the imperfect statement, of the account which he makes, commits several errors. In the first place, he does not commence such account with the commencement of the partnership. Then, in the giving of credits, he excludes all payments to the partners individually, which would seem to be a very necessary item in the making up of the accounts as between these parties. Furthermore, he treats all drafts made by either of the partners upon the firm as overdrafts which in any way exceeded the money contributed by such copartner, utterly ignoring the rights of the partners to profits, a manifestly erroneous method of stating the account.

There is no explanation given of the various items which enter into the account stated by him, and it is impossible- to understand what these items represent, particularly the item of machinery, amounting to $17,070.65. If that is intended to represent the cash received for machinery sold, the money must have passed into the. bank account, and thus the defendant would be charged twice with the same. If it represents machinery on hand, then the defendant is also charged twice, certainly in respect to some of the same, because he is expressly charged, in addition to that item, with sums amounting to over $9,000 for machinery. It further seems to have been supposed that the defendant had no right to sell his interest in any of the copartnership property.

This, clearly, was erroneous. He had a perfect right to sell his interest in any of the property owned by the copartnership, the purchaser taking the same, subject to the equities of the other partner and of the creditors of the concern.

Without further consideration of the facts appearing upon this record, it is evident that the whole construction of the account proceeded upon an erroneous basis, and results were arrived at which were not sustained by the evidence.

It is proper here to say a word in regard to the extraordinary allowance which seems to have been granted to the plaintiff upon the coming in of the referee’s report. The referee reported $8,819.11 due the plaintiff, with interest from January 31, 1891, and an allowance of $2,000 was granted. This seems to us to have been an exorbitant allowance, even had the amount involved been the whole assets of the firm, without deducting the payments made on account of those assets, which seems to have been the theory upon which the allowance was granted.

The amount involved in the action was the amount for which judgment was obtained, and nothing else. We are of opinion, therefore, that this order should be reversed, with ten dollars costs and disbursements; and that the judgment appealed from should be reversed and a new trial ordered before a new referee to be appointed by this court, with costs to tbe appellant to abide the event.

O’Brien and Follett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and judgment reversed and new trial ordered before a new referee to be appointed by this court, with costs to the appellant to abide the event.


author: Van Brunt, B. J.:

text:
    Sarah Lazarus and Others, Respondents, v. The Metropolitan Elevated Railway Company and Another, Appellants.

      Elevated railroads — rental value of premises affected thereby — vacant rooms— evidence — effect of the road upon onds business not a conclusion but a fact — evidence as to accessibility of premises — easements of nominal value — pa/rties plaintiff.

    On the question of the rental value of a building in which there are vacant rooms, as affecting the amount of damages claimed by reason of the construction and operation of an elevated railroad, it is error to exclude evidence as to the amount of rent demanded for the .vacant rooms, and then exclude such rooms from the computation of present rental value.
    The vacancy of a building or of rooms in a building, caused by the demand of exorbitant rents, is not an element of damages imputable to an elevated railroad.
    The exclusion of competent and material evidence sought to be elicited by the defendant from the plaintiff’s witnesses, in an action against an elevated railroad involving the question of rental value, as to the occupancy and rental during periods covered by the plaintiff’s evidence when the premises were rented as a whole and sublet, cannot be sustained upon appeal on the ground that the witnesses had no personal knowledge on the subject, when that objection was not raised below, and the witnesses did not claim inability to answer on account of ignorance.
    Questions put to the occupant of premises, as to whether his business was injured by an elevated railroad, and whether access to his premises was affected by the road, are not objectionable as calling for conclusions and not facts.
    When the situation of premises alleged to have been damaged by an elevated railroad, the construction of the road, and the location of a station near the premises, have been proved before a referee, it becomes his province to judge as to whether the premises were rendered more accessible by the road and station, and it is then proper to exclude the evidence of witnesses, even though they may be experts as to value, in regard to the effect of the road upon the accessibility of the premises.

      Basements appurtenant to land taken for railroad uses, apart from any damages to the land, have in themselves only a nominal value; and it is error for a referee to refuse a request for a finding to that effect, in an action against an elevated railroad involving the question of damages caused by its construction and operation.
    The executors of a deceased ancestor are not necessary parties in such an action merely because of the existence of a power of sale in the will of such ancestor from whom the plaintiffs took the premises in suit, and it is incumbent upon the defendant railroad company, before it can render available an objection based upon the nonjoinder of the executors as parties plaintiff, to show some reasonable ground for apprehending some infirmity of title by reason of the unsettled condition of the ancestor’s estate.
    The provisions of the Code of Civil Procedure, which require defects appearing upon the face of a complaint to be deemed waived, unless taken advantage of by demurrer, do not apply to actions in equity in such a sense as to relieve a court of equity from the duty of bringing in, before rendering judgment, all parties who may be interested in the result, whether upon demand of the parties or not.
    Appeal by the defendants, the Metropolitan Elevated Railway Company and the Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the city and county of New York on the 19th day of October, 1892, upon the report of a referee.
    A. 0. Townsend, for the appellants.

      N. S. Spencer, for the respondents.
   Van Brunt, B. J.:

This action was brought to enjoin the operation of the defendants’ road in Trinity place in the city of New York in front of plaintiffs’ premises, situate on the northeast corner of Trinity place and Exchange alley, having a frontage on Broadway and extending along Exchange alley to Trinity place.

The referee before whom this action was tried has not thought it necessary to give any intimation as to how he ai’rived at the results which were included in his report, which contains some rather novel conclusions of law; and, as a consequence, this court has been com. pelled to examine the whole of the bulky record presented upon this appeal for the purpose of ascertaining, if possible, the theory upon which the referee has reached the conclusions embodied in his report, and these labors have resulted in but little success. But it seems to be apparent, from an examination of such report, that the referee has fallen into serious errors, in consequence of which a new trial must be had.

There is one peculiar feature which is presented by his finding in his report, in respect to past damages, and the evidence which was introduced in respect thereto, which shows that he seems to have been of the opinion that vacant rooms, caused perhaps by the demand of exorbitant rentals, formed an indication of the damages sustained by the maintenance and operation of the defendants’ railroad. Because all evidence was excluded by the referee in the case of rooms which were vacant in the building, as to the amount of rent which was asked for the same; and the amount of annual rentals at the time of the making of the report, included therein, was the amount for which the building was then rented exclusive of such vacant rooms. We find that certain rooms which had been accustomed to be rented, happened to be vacant at this time, and the question was asked of the witness who had charge of the premises: What is the charge or price at which you hold that room at the present time ? ” This question was objected to. and excluded, and the referee finds the actual rentals of the premises excluding the vacant rooms, and we have no indication whatever as to whether the cause of such vacancy may not have been the demand of exorbitant rents. If such a rule were to prevail, all that it would be necessary for the owner of premises upon the line of the elevated railroad to do, would be to ask rents far beyond the amounts which persons always pay for similar accommodations, and he would have an empty building, and could claim that it was the result of the operation of the railroad, and could recover as damages the total value of his property. The results of this ruling necessarily affect both past and future damages, because the value of the premises is necessarily affected by the annual rental received therefrom.

These premises having been let during certain of the periods covered by the evidence, as a whole, and sublet, the referee excluded evidence upon the part of witnesses upon the part of the plaintiffs as to the occupancy of these buildings, and the rent thereof during the times when said building was rented as a whole to certain tenants and sublet by them.

It is sought to sustain such ruling now by the claim that the witness had no personal knowledge in regard to this matter and, therefore, cotdd not testify thereto, and that a subsequent witness did give testimony upon that point. But no objection was taken upon that ground, and it is impossible for the court to determine whether the witness had personal knowledge or not, until he claimed inability to answer because of ignorance. The objection was based upon the ground apparently that such evidence was incompetent and immaterial, which clearly was error. And although a subsequent witness may have given testimony which covered this ground, which we have been unable to determine by an inspection of this record, the rulings show that the referee had an erroneous view in regard to the relevancy of testimony affecting the question of value, and it may have pervaded the whole of his action.

The referee further excluded evidence from occupants of the premises as to whether in fact the structure of the railroad and the operation of its trains interfered with the business of such occupant, upon'the ground that it called for the conclusions of the witness. The witness had already testified to the physical effects of the building and operation of the road, and that his rental had steadily risen until it had nearly doubled, and that most of his goods were delivered at Trinity place. And he was then asked the question whether, as matter of fact, the elevated structure and the operation of trains in Trinity place interfered with his business as a restaurant keeper, and this was excluded upon the ground that it called for a conclusion of the witness. And the further question was asked : Have you ever* noticed any difficulty attending the delivery of goods in the rear of your building, which was excluded, for the same reason.

These questions certainly called for no greater conclusion of the witness than much which he had testified to in regard to the physical effects resulting from the maintenance and operation of the road. They were facts which he was as competent to testify to as anybody else, as to whether his business was injured by that road, or whether access to his premises was affected thereby.

It might as well be said that the witness could not testify as to the distance between two given objects in sight, as that is a conclusion as much as was the evidence asked from the witness. Both are the results of mental operations. These questions would seem to be especially pertinent, as the witness was examined upon the part of the plaintiffs.

Another witness who was examined on the part of the plaintiffs for the purpose of establishing the facts of the maintenance and operation of this road, and having testified upon this point, was asked the question : “ The elevated road has never interfered with your work and occupation there, has it, personally ? ” This question was objected to as calling for a conclusion, and was excluded. And, subsequently, the witness was asked : “ Did you personally experience any inconvenience in your work from the presence of the elevated railroad % ” This was answered : “ It has never interfered with me in any way.”

Objection is also taken to the refusal of the referee to permit certain witnesses to testify, some of whom were examined as experts as to value, whether the premises in suit were rendered more accessible from uptown and distant points by reason of the presence of the elevated road at Rector street, and whether this station is located conveniently to these premises, or whether the premises are easily reached from the Rector street -station, and whether the railroad in Trinity place renders the premises in suit more accessible than they otherwise would be.

There seems to be no error whatever in these rulings, because the referee was as competent to judge of these facts as the witnesses. The situation of the premises, the construction of the road, etc., were facts proven before the referee, and it was his province so to do and not that of the witness.

There seems also to be an exception to a refusal to find which requires notice. The referee was asked to find that the easements appurtenant to the plaintiffs’ land taken for railroad uses, apart from any damages to said land from such taking, have in themselves only a nominal value, which was refused. In the case of Bookman v. N. Y. El. Ry. Co. (50 N. Y. St. Repr. 703), a similar request was made and refused, and the court held that the request should have been found, and the refusal to find showed that the sourt misapprehended the principles of law laid down in the cases of Newman v. Metropolitan Elevated (118 N. Y. 618) and Bohm v. Metropolitan Elevated (129 id. 576).

The learned counsel for the respondent claims that the referee committed no error by this refusal, because the case at bar is substantially different from the cases in which this rule was enunciated in the following particular : That in the Sperl!>, Boolcman and Stotro cases the court said they had carefully read the evidence and failed to find that the plaintiffs had suffered any damage by reason of the defendants’ acts. And the counsel urges that from that fact the court reasoned that the trial court must have failed to apply the proper rules of law, and that they were confirmed in that conclusion by the refusal to find not only the request in question, but several others of like tenor, all tending to show to them that the proper rule had not been applied.

TVe have read all that the opinion in the Bookman case contains, and we fail to find that the court anywhere stated that they failed to find that the plaintiffs had suffered any damage by reason of the defendants’ act. What they did say is that they were satisfied that in the estimate of damages, injustice was done to the defendant, and the proper rules of law were not applied in awarding the judgment, a very different condition of affairs from that assumed by the counsel. It is true that other findings are referred to as having been refused without any just reason. But the court expressly stated that the finding to which their attention was called, was in that case a crucial test as to the principles under which the court acted ; and they say that because of the principles laid down in the Newmam, and Bohm cases, it was important for the defendant to have a finding that substantially all the damages were consequential, so as to give room for the allowance of benefits. This importance is as great in the case at bar as it was in the Bookmcm case. But it seems to us that the requirements of that case were met by the finding of the referee that the plaintiffs were not entitled to recover damages in this action, except to the extent, if any, by which the disadvantages of defendants’ railroad have exceeded the advantages thereof to the said premises, which seems to indicate that he had in mind the points which were pronounced to be so important in the Bookman case.

It is also urged upon the part of the appellant that it was error not to compel the bringing in of the executors as plaintiffs in the action, upon the ground that they had a power of sale, and there was no proof that debts and legacies had been paid, or that the estate had been administered upon. We do not see that the executors of the ancestor were necessary parties merely because of the existence of a power of sale in the will of such ancestor, and it was incumbent upon the defendants to show some reasonable ground for apprehending some infirmity of title by reason of the claimed unsettled condition of such estate.

The point is also made that the referee erred in allowing all the past damages to the plaintiffs in this action. It appears that Moses Lazarus, the ancestor, died on the 9th of March, 1885, and the past damages recovered are computed from this date. lie left seven children, the plaintiffs, and their mother, who under his will were devisees of the premises in question. Emily Lazarus died on the 19th of February, 1887, intestate, leaving the plaintiffs her only heirs at law and next of kin. It is perfectly clear that her administrator is entitled to her share of the damages accruing between the 5th of March, 1885, and the 19th of February, 1887. But the difficulty with the appellant’s objection is that this question was raised for the first time upon this appeal. If it had been raised at the trial, we think the court should at least have excluded her share from the amount recovered. But the better practice would have been to bring in her administrators in order that the whole matter might be settled. It is urged that under the provisions of the Code as to defects appearing on the face of the complaint, it must have been taken advantage of by demurrer or it is waived. But the counsel confuses the rule prevailing in actions at law and actions in equity. The court in equity is bound before rendering judgment, to bring in all parties who may be interested in the result, whether upon the demand of the parties or not.

There are various other exceptions to which attention might be called, but it does not seem to be necessary to discuss them in detail, as we have been left entirely in the dark, as already suggested, as to the method by which the referee has reached his conclusions, and it is impossible for us to say but that he may have been affected, to the injury of the defendant, by the errors to which attention has been called. And it would seem probable from the nature of many of the rulings that the referee had an erroneous view of the effect of evidence.

Under these circumstances, therefore, there is nothing to be done except to reverse tlie judgment and order a new trial before a new referee to be appointed by this court, with costs to the appellants to abide the final event.

O’Brien and Follett, JJ., concurred.

Judgment reversed and new trial ordered before a new referee to be appointed by this court, with costs to the appellants to abide the final event.


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    The People of the State of New York, Respondent, v. Leonardo Larubia, Appellant.

      Jurors in criminal actions —prejudice against the defendant — statement of causes of challenge — actual bias.

    On the examination of a juror as to his qualification to serve on the trial of a prisoner under an indictment for murder where the homicide was committed by the defendant with a pistol which he had been in the habit of carrying, the juror stated that he had a great prejudice against the defendant by reason of the fact that he carried a pistol, and that he did not believe a man had any right to carry a deadly weapon; the juror was not asked to, and did not, declare that he believed such prejudice would not influence his verdict.

      Held, that the juror was incompetent, and that it was error to overrule a challenge for cause interposed by the defendant.
    When, on the trial of a criminal action, it is understood by the court and by both parties that a challenge to a juror for actual bias is being tried, an exception to the overruling of a challenge for cause may be available, althougn the requirements of section 380 of the Code of Criminal Procedure — that in a challenge for implied or actual bias the causes stated in the Code must be alleged, and that whenever the challenge, is overruled they-must be entered upon the minutes — may not have been strictly complied with.
    Appeal by the defendant, Leonardo Laruoia, from a judgment of the Court of Oyer and Terminer' for the city and county of New York, rendered on the 2d day of June, 1892, convicting the defendant of the crime of murder in the second -degree.

      8. 8. Blake, for the appellant.

      H. B. B. Stapler, for the respondent.
   Van Brunt, P. J.:

In the consideration of this appeal, it will only be necessary to consider the exceptions raised to the overruling of the challenge of one of the jurors. The proceedings in reference to this juror are short, and they are inserted here precisely as they appear upon the record.

Abner McKinley, who was sworn and examined, testified as follows:

“ Direct-examination by Mr. Simms :
I have no conscientious opinion in respect to capital punishment such as would preclude me from finding the defendant guilty of murder in the first degree, provided the evidence satisfied me of his guilt beyond all reasonable doubt. I do not know that I have any prejudice against the infliction of the death penalty by electricity. It would have no weight upon my mind in the consideration of the evidence in this case or determining the degree of your verdict, I am not acquainted with Mr. Blake, the counsel for the defendant, and have no prejudice against the defendant on account of his nationality. I have not heard of this case before, and have no impression or opinion now as to the defendant’s guilt or innocence.
“ Q. Do you know of any reason to prevent you from acting as a fair and impartial juror if selected in this case ? A. Yes, I do.
“ Q. Please state it ? A. I am not a citizen of this State, and I do not believe I am liable to jury duty, and I, therefore, feel I am forced here against my will.
“ Ti-ie Court.— I have decided that the juror is liable to jury duty under the laws of this State. That requires him to serve and he should serve.
“The Juror.— With all due deference to your honor’s decision, I differ.
“ Mr. Simms.— Challenge withdrawn.
“ Cross-examination by Mr. Blake :
“ Q. What is your business ? A. I am an attorney at law, but I do not practice here in this city; I practiced in Ohio, I have been in practice — I was in active practice for fifteen or sixteen years; I have. tried criminal cases.
“ Q. You can give this man a fair and impartial trial ? A. I don’t know whether I could or not.
“ Q. On the merits ? A. I don’t know “whether I could or not.
“Q. Do you know of any prejudice growing out of this case other than that you are not liable to jury duty ? A. I do not believe the defendant wants me.
“ Q. I may want you. A. I do not want to deceive you if I got into that jury ; any little pique I may have will not be taken for or against the defendant, and I do not believe the defendant wants me ; I have no prejudice against his nationality.
“ Q. Or any prejudice against him by reason of the fact that he cai’ried a pistol ? A. Yes; a great prejudice; I don’t believe any man has any right to carry a deadly weapon.
Q. Not even with a permit ? A. No, sir ; he should be responsible for his acts; if he is a quarrelsome fellow he should be responsible for his acts.
“ Q. Sometimes men are assaulted without any provocation whatever — you are a lawyer — what is he going to do ? A. There are so many cases where people have had deadly weapons, if they did not have them there would be no murder nor no great bodily harm.
“ Q. Sometimes if they did not have them they might be dead men. A. Not as a general rule; I am absolutely honest in this matter.
“ Q. You do not want to serve? A. I do not and it would be a Very great hardship if I should be compelled to serve.
“ Mr. Blake.— I submit the challenge''for cause.
“ The Court.— The challenge is overruled ; exception taken.
“ Mr. Blake.-— I suppose the challenge is witli the People.
“ Mr. Weeks.— We have no peremptory challenge.
“ Mr. Blake.— He is charged peremptorily on the part of the defense.”

It is claimed upon the part of the defendant that the overruling of the challenge was error prejudicial to the defendant, and we are of opinion that this point is well taken.

It appeared that the killing in question was committed by the prisoner with a pistol which he had been in the habit of - carrying; and upon the examination of the juror he was asked whether he had any prejudice against the prisoner by reason of the fact that he carried a pistol. His answer, as appears above, was, “Yes, a great prejudice; I don’t believe any man has any right to carry a deadly weapon.

“Q. Not even with, a permit? A. No, sir, he should be responsible for his acts; if he is a quarrelsome fellow he should be responsible for his acts.

“ Q. Sometimes men are assaulted without any provocation whatever— you are a lawyer — what is he going to do? A. There are so many cases where people have had deadly weapons; if they did not have them there would be no murder nor no great bodily harm.

“ Q. Sometimes if they didn’t have them they would be dead men. A. Not as a general rule. I am absolutely honest in the matter.”

As far as this examination went it showed a prejudice against the prisoner from the fact of his carrying a pistol, and from the juror’s answers it appeared to be a strong prejudice. The witness was not asked to declare on oath that he believed such prejudice would not influence Lis verdict, and that he could render an impartial verdict according to the evidence. But with this statement of prejudice against the defendant standing almost unqualified the challenge is overruled, and the juror pronounced by the court to be competent. While we think that if the juror had declared upon oath that such prejudice would not affect his verdict, and the court was satisfied of that fact, its existence would not have disqualified him as a juror, without such declaration upon oath by the juror, there was nothing to show but what that prejudice would influence the juror in the rendition of his verdict, and, therefore, he was incompetent.

It is urged, however, upon the part of the People that this exception should not be allowed to prevail, because the submission of the challenge fails to show the ground of challenge.

It is undoubtedly true that by section 380 of the Code of Criminal Procedure it is provided that in a challenge for implied or actual bias the causes stated in the Code must be alleged, and that whenever the challenge may be overruled they must be entered upon the minutes of the court, and that such requirement was not strictly complied with in the case at bar.

It will be seen that it was the understanding of all the parties as to what the nature of the challenges were. We find the People, upon the juror being sworn, conducting an examination upon the assumption that a challenge had been interposed for implied bias upon one or more of the causes stated in the Code, and also a challenge for actual bias for the cause stated in the Code; and at the conclusion of the examination appears a statement that the People withdrew the challenge. Then the prisoner cross-examines the juror as though the challenge had been renewed upon his behalf; and at the end of the examination, the counsel submits the challenge for cause, which challenge is overruled and an exception is taken.

It is clear that it was the understanding of the court and counsel that a challenge for actual bias was pending, and such challenge was overruled by the court. In fact, the only provisions for the examination of a juror arise upon the trial of a challenge to a juror, and the court had no authority to proceed unless the challenge was before it. Prior to this examination, it. would appear from the record that the question of a general challenge (viz., that the juror was disqualified from serving in any case) had been passed upon by the court, and, therefore, there remained no causes for challenge before the court but those for implied and actual bias, as to which he was examined by the parties.

We think that the question as to the competency of the juror was before the court, and although the provisions of the Code were not strictly complied with, yet it was the understanding, both of the court and the parties, that a challenge for actual bias was being tried.

It is claimed upon the part of the People, under the authorities of The People v. Carpenter (102 N. Y. 238) and People v. McGonegal (136 id. 62), that jurors, similar to the one now under consideration, were pronounced qualified, and it was held not to be error. But it will be found in all those cases that the juror had declared upon oath that the seeming disqualification would not in any manner influence his verdict; a feature conspicuously absent in the case at bar.

We think, for the error committed in the overruling of the challenge to this juror, the judgment should be reversed and a new trial ordered.

O’Brien, J., concurred.

Judgment reversed and new trial ordered.