text:
    George High, Respondent, v. Charles F. Chick, Appellant.

      Communications between the court a/nd jury, after the submission of a cause, except in court, vitiate the verdict.

    The court is forbidden to bold any communication with the jury after the trial and submission of a cause, except in open court, and where practicable in the presence of the counsel for the respective parties to the action, and a failure to comply with such rule vitiates the verdict rendered by the jury.
    Appeal by the defendant, Charles F. Chick, from a judgment of the County Court of Genesee county in favor of the plaintiff, entered in the office of the clerk of the county of Genesee on the 27th day of February, 1893, upon the decision of the court affirming the judgment of a justice of the peace of the town of Pembroke, Genesee county, and also from an order affirming said judgment, entered in said clerk’s office on the 27th day of February, 1893.

      G. H. Bean, for the appellant.

      W. F. Qla/rlt, for the respondent. '
   Dwight, P. J.:

The only question we deem it necessary to consider in this case relates to an alleged error in fact in connection with the trial of the action. The facts upon which the question arises appear in part by the return of the justice and more fully by a stipulation of the attorneys for the respective parties, and are as follows:

After the case had been submitted to the jury all persons except the jury and the constable, who was sworn to attend them, withdrew from the room in which the trial had taken place, and the jury remained there to deliberate on their verdict. The room was in an' unoccupied house owned by the justice, and opened off from the main hall of the building. After the jury had been engaged in their deliberations several hours they sent the constable to find the justice, and inform him that they wished to see him. The constable found the justice at his house, in company with the attorneys for both the parties, and informed him in their presence that the jury had not agreed and wished to see him. The justice thereupon "proceeded to the building where the jury was confined, and the attorneys accompanied him to the front door. There they stopped, and the attorney for the defendant protested against the justice’s going into the jury room. He went in, however, without inviting either of the attorneys to accompany him, and closed both doors behind him. In the jury room, no other person being present unless possibly the constable, he was asked and answered a question in respect to the effect of a verdict, if one should be rendered, and then left the jury to their further deliberations. They afterwards found a verdict for the plaintiff.

We think the proceeding constituted an error for which the judgment must be reversed. We had occasion, at the last term, in the case of The People v. Linzey (79 Hun, 23) to consider the question of the effect upon the verdict of a communication by the justice to the jury while engaged in their deliberations, and held that the effect, under the circumstances there disclosed, was to vitiate the verdict. The proceeding in this case seems to us still more objectionable than what occurred in that case. But the rule is very strict and forbids any communication whatever by the court to the jury after the cause has been submitted to the latter, except in open court, and, where practicable, in presence of the counsel in the case. (See the cases cited and quoted from by Haight, J., in the opinion in the case of Linzey, supra) Among those cases is that of Taylor v. Betsford (13 Johns. 487) where the language of the court is closely applicable to this case. The court said: The only error necessary to be noticed in this case is, that the justice went into tlie room with the jury at their request, privately and apart from the parties, to answer certain questions proposed to him by the jury. This we have repeatedly held to be erroneous, unless done with the consent of the parties. Whether the information given by the justice were material or had any influence upon the verdict of the jury, is a matter which we will not inquire into.”

The justice in his return intimates that he regarded the court as opened when he went into the room, and that counsel were at liberty to go in with him if they had seen fit to do so. But he gave no such intimation to the counsel at the time, but left them 'standing at the outer door of the building, the counsel for the defendant protesting against the justice’s going in. The action of the justice, although no doubt innocent in its intent, was inconsiderate. He would have avoided the error complained of if he had answered to the objection of the defendant’s counsel, that the court was to be considered open while he conferred with the jury, and invited them both to be present with him.

For the error in fact here considered the judgment of the County Court and of the justice must be reversed.

Lewis, Haight and Bradley, JJ., concurred.

Judgment of the County Court of Genesee county and that of _ the justice reversed.


source: Caselaw Access Project

author: JBradley, J.:

license: Public Domain

text:
    Alfred C. Dodge, Appellant and Respondent, v. Nelson Miller, Respondent and Appellant.

      Paurol contract for the sale pf real estate — when relieved from the Statute of Prauds — ■ assignment thereof — equitable Men — action for specific peiformance — discretionan'y relief — granted, only subject to equities.

    Tie right of a vendee to the specific performance of a parol contract for the sale of real estate, of which there has been such a part performance as to relieve it from the Statute of Frauds, may be transmitted, for the purposes of equitable relief, to another by assignment.
    The loan of money to the owner of real estate upon his parol promise to secure it at some future time by mortgage upon the land, is not effectual to create an equitable lien upon the promises. The promise, without something further, would be within the Statute, of Frauds and void.

      An action brought to obtain the specific performance of a parol contract to sell real estate, of which there has been such a part performance as to relieve it from the Statute of Frauds, is addressed to the sound discretion of the court; the party seeking the relief must come into court with clean hands; and, seeking equity, must do equity. Such discretion should not be arbitrary or capricious, but its exercise is qualified by the application of recognized principles.
    By a parol contract for the sale of certain real estate, one Miller agreed to convey to Jones certain premises on the payment to him of $120. Jones went into possession and erected a house on the premises, and made to one Dodge a written assignment of his interest in the contract and premises as security for the payment of an indebtedness to him. In the meantime Miller had loaned and advanced to Jones §520 to aid him in the erection of such house, upon the promise of Jones that he would pay Miller or secure to him the amount so loaned as soon as he (Miller) could give him a deed of the premises. Dodge took the assignment from Jones with knowledge of such indebtedness of Jones to Miller.
    In an action brought by Dodge against Miller for the specific performance of the parol contract between Miller and Jones,
    Held, that there had been such part performance of the parol contract to sell real estate as relieved it from the Statute of Frauds for the purposes of equitable relief;
    That Dodge took the assignment from Jones subject to the equities existing ' between Jones and Miller ;
    That a judgment providing that on payment to Miller of the $120 and interest, Miller should convey the premises to Dodge subject to his (Miller’s) judgment against Jones for the amount of money loaned by Miller to Jones, was equitable and proper.
    Cross-appeals by tbe plaintiff, Alfred C. Dodge, and by the defendant, Nelson Miller, from portions of a final judgment of the. Supreme Court, entered in tlie office of tbe clerk of tlie county of Livingston on tlie 12th day of April, 1893, upon tbe decision of tbe court rendered after a trial at the Livingston Special Term, adjudging tbat tlie defendant deliver to tlie plaintiff a good and sufficient deed of certain premises upon tlie plaintiff’s paying to him $120, with interest, and that such deed be made subject to tlie judgment in favor of the defendant against one Frank Jones, and awarding tlie costs of the action to the defendant.
    The action was brought for specific performance of a parol contract between the defendant and Frank Jones, by wliiclithe defendant agreed to convey certain premises to Jones on payment by Mm of $120. The latter went into possession and erected a liouse on tbe premises. He made to the plaintiff a written assignment of his interest in tlie contract and premises as security for tlie payment of bis indebtedness, etc., to him. In tlie meantime tlie defendant bad loaned and advanced to Jones $520 to aid Mm in the erection of the bouse. The court found that tlie money was loaned to Jones upon bis promise that lie would pay tlie defendant or secure to liim the amount so loaned as soon as the defendant could give him a deed of the premises, and that the plaintiff took the assignment from Jones with knowledge of such indebtedness to the defendant.
    The court determined that on payment to him of the $120 and interest, tlie defendant by deed convey the premises to the plaintiff subject to the defendant’s judgment recovered against Jones for the amount of money so loaned to him, and that if the judgment be not paid within the time specified, the defendant might, by virtue of an execution issued upon his judgment, cause the premises to be sold.
    . The defendant appeals from the judgment and the plaintiff appeals from so much of it as makes the conveyance subject to the defendant’s judgment against, Jones and permits a sale upon execution, also from the award of costs to the defendant.

      G. A. Norton and E. A. Nash, for the plaintiff.

      Geo. W. Daggett, for the defendant.
   JBradley, J.:

The only proposition urged in support of the defendant’s appeal is that the plaintiff could not by the assignment to him effectually take the relation and rights of vendee which Jones had to the parol contract with the defendant. It is not - questioned that there had been such part performance as to relieve it from the Statute of Frauds for the purposes of equitable relief, but it is insisted that such relief is available to Jones only. No reason appears why the equitable right to specific performance perfected in him might not be transmitted by assignment to the plaintiff, and the execution of the contract in his behalf directed. The subject of the controversy mainly is whether the defendant’s judgment for the money advanced by him to Jones is entitled to or should have priority to the claim of the plaintiff.

When the parol agreement of sale to Jones was made the defendant’s title was incomplete, but he contemplated perfecting it,. and did so after the assignment to the plaintiff, and thereupon tendered a deed to Jones and required him to pay the purchase money and the amount of money so loaned to him or secure the payment of it by mortgage on the premises. This Jones declined to do. It may reasonably be supposed that the defendant having the legal title advanced the money to Jones to aid him in the erection of the house upon the land, as the value of it thus enhanced would be adequate security for the loan and with a view of having the benefit of it as such. He would not, however, have a vendor’s lien for the money so loaned unless it could be treated as a part of the purchase money. If the legal title had been in Jones, the loan of money to him upon his parol promise to secure it by mortgage at some future time upon the land, would not have been effectual to create an equitable lien upon the premises. The promise without something further would be within the Statute of Frauds and void. (2 R. S. 134, § 6.) The English doctrine, that the deposit of title deeds as security for money advanced constitutes an equitable mortgage, has been recognized in this State. (Rockwell v. Hobby, 2 Sandf. Ch. 9; Chase v. Peck, 21 N. Y. 581, 584.)

In the present case Jones had no muniment of title. The evidence does not permit the inference that the money loaned by the defendant to Jones became a part of the purchase money of the premises. And it is not seen that an equitable mortgage or lien is supported by the fact that the defendant in his relation of vendor held the title in trust for Jones.

The difficulty with the defendant’s claim of lien is that his loan was made upon the mere oral promise of Jones to secure it when he obtained the title.

In Smith v. Smith (51 Hun, 164), cited by the defendant’s counsel, money was expended by the plaintiff in the erection of a building upon premises pmsuant to an arrangement with the owner that he should have á lien upon it for the amount so expended, with the right to sell, if necessary, for his protection. It was there held that the lien was not dependent upon the agreement alone, but was also founded upon the fact that it would be repugnant to natural justice to permit the owner of the legal title to retain the building without compensating the plaintiff for the money so expended by him.

This was affirmed. (125 N. Y. 224.) While in the case at bar the facts do not establish an equitable lien in behalf of the defendant, enforcible by affirmative action on his part, there is, in view of the fact that the money was advanced to aid in the erection of the house on the premises and on Jones’ promise to so secure it, an equity which the court may recognize in- an action for specific performance of the parol contract. An action for such relief is addressed to the sound discretion of the court in such sense that the party in pursuit of it must come into court with clean hands, and seeking equity must do equity. Such discretion is not arbitrary or capricious, but its exercise is qualified by the application of recognized principles. (Seymour v. Delancey, 6 Johns. Ch. 222; 3 Cow. 445.)

The circumstances, as found, of the advance of the money to-Jones, were such as to legitimately bring the subject within the consideration of the court. The purpose of it in its relation to the premises in question, and the promise and faith of the contemplated security upon which the loan was made, were such as to justify as between the defendant and Jones the direction of the court that the amount be paid or secured, pursuant to the understanding, as a condition of granting specific performance on the contract in behalf of the latter. (Canajoharie Church v. Leiber, 2 Paige, 43; Sutphen v. Fowler, 9 id. 280.)

And upon the facts found by the trial couijt the plaintiff took the assignment from Jones subject to the equities between him and the defendant. (Reeves v. Kimball, 40 N. Y. 299.)

The judgment, therefore, should be affirmed, without costs of this appeal to either party.

Dwight, P. J., Lewis and Iíaight, JJ., .concurred.

Judgment appealed from affirmed, without costs.


author: Dwight, P. L.:

text:
    In the Matter of the Trusts Created in and by the Will of Allen Ayrault, Deceased.

      Action for an accounting by a trustee — the jurisdiction of the Supreme Court once obtained is exclusive — a Swrogate’s Court cannot compel an accounting when the Supreme Court has prior jurisdiction.

    In an action brought in the Supreme Court by a testamentary trustee, praying for the construction of the clause in the will creating the trust and for the direction of the court as to the disposition of the trust fund, the Supreme Court, if it obtains full and complete jurisdiction over all the parties to the action and over the trust fund, has power to make a full determination, disposition and distribution thereof among the various parties entitled to share in such distribution, and it retains jurisdiction until the execution of its judgment.
    The jurisdiction of the Supreme Court is exclusive, and an application made in a. Surrogate’s Court, by the administrator of a person whose estate is entitled to share in the distribution of the trust fund, to compel an accounting there by the trustee, must be denied even though such administrator was not a party to. the action in the Supreme Court in his official capacity (no administrator of such estate having been appointed until after judgment was rendered in the action in the Supreme Court and until sixteen years after the death of his intestate), provided that all of the persons whom he represents were parties to the action.
    Appeal by tbe petitioner, Ernest F. Ayrault, as administrator, etc., of Mary Ayrault, deceased, from a decree of tbe Surrogate’s. Court of tlie county of Livingston, entered in tbe Livingston County Surrogate’s Court on tbe lltb day of April, 1894, dismissing tbe petition of tbe said Ernest F. Ayrault, praying for an order compelling Charles P. Bowditcb, as trustee under tbe will of Allen Ayrault, deceased, to render an account of bis proceedings.

      E. F. Ayrault, appellant, in person.

      J. G. Milburn, for tbe respondent, Charles P. Bowditcb, as-trustee, etc.
   Dwight, P. L.:

Tbe petitioner prayed for an accounting by tbe trustee of Allen Ayrault of all such moneys as bad come to his bands, belonging to tbe estate of Mary Ayrault, under tbe provisions of tbe will of Allen Ayrault.

Allen Ayrault died in 1861, leaving a large estate and a will by which lie disposed of tbe same under various trusts. Mr. Bowditcb, the respondent, was appointed trustee in 1868, and has acted as such, ■under occasional direction of this court procured on his application, until this time.

The dispositions of the will resulted in a large residuary estate into which the subjects of several life estates fell from time to time, as those life estates expired, and the final distribution of the residuary estate did not become practicable before the year 1890. Two-thirds of the residuary estate was given by the will to such of the children of the testator’s brothers and sisters as should be living at the time of his decease, and to the descendants of such of said children as should be deceased when said residuary estate or any part thereof should be distributed. Mary Ayrault, the petitioner’s intestate, was one of the residuary legatees under the former of the two designations, and she was ■also the legatee of a life interest in a fund which should fall into the residuary estate at her decease. She died unmarried and intestate in August, 1877, and sixteen years later — in September, 1893— the petitioner took out letters of administration upon her estate.

In February, 1890, the trustee commenced an action in this court to procure a final distribution of the residuary estate. In his complaint in that action there were alleged, among others, the facts above stated, specifying among the funds which had fallen into the residuary estate and been received by the trustee, and for which he" was ready to account, that in which Mary Ayrault had held a life ■estate. ■ It was alleged that she was the daughter of a brother of the testator; that she died, at the date above mentioned, unmarried, intestate, leaving no descendants, and that no administration had been granted upon her estate.

In his complaint the trustee also alleged that partial distributions ■of the residuary estate had already been made by him and his predeoessor in the trust, from time to time, on the theory, as they had been advised, that the several interests in that estate did not vest until actual division was made, and that if a legatee had died before the time of any division, the share he would have taken, if living^ did not pass to his personal representatives, but to his descendants, if he left any, and if not, then to the other residuary legatees. He also alleged that grave questions had arisen in regard to the proper construction of that clause of the will (§ 25) which provided for the disposition of the residuary estate, viz., whether such estate vested absolutely in the residuary legatees at the death of the testator, or, as to each of the funds which fell into it, at the time it so-fell in, or at the time of actual division; and in respect to these questions he asked for a construction of section 25 of the will, and for the directions of the court to enable him to distribute the estate remaining in his hands among those entitled to receive it. He prayed for a final accounting by himself as trustee to be taken and finally settled by the court, and that he be finally discharged from duty and responsibility as such trustee.

All the heirs at law and next of kin of Mary Ayrault, including the petitioner in his individual capacity, were made parties defendant to that action, and all appeared therein and litigated the issues raised by the pleadings.

The controversy terminated in the Court of Appeals, where it was held that the gift of the residuary estate vested in the designated legatees at the time of the testator’s death, and that distribution of the fund remaining in the hands of the trustee should be made upon that basis, but it was adjudged that all payments theretofore made by the several trustees of the residuary estate, upon their several accountings and settlements to the several legatees and distributees, should be confirmed as final and conclusive. The matter was then sent to a referee to ascertain and report who were the persons entitled to share the residuary estate under the decision of the Court of Appeals, and the share of each; he reported the share of Mary Ayrault as the one-thirty-fourth, and that it was payable to her administrator to be appointed, and judgment was entered on the report directing distribution in accordance therewith. That judgment was entered August 9, 1893; letters of administration were granted to the petitioner herein September i, 1893; he filed his petition herein November 3, 1893, in which he prayed for an accounting, de novo, by the same trustee, of all the moneys that have come into his hands belonging to the estate of Mary Ayrault under the will of Allen Ayrault, deceased. The judgment of the Supreme Court above described is still in force unexecuted, no distribution having yet been made in accordance with its direction.

We think that the foregoing statement justifies the conclusion of law of the learned surrogate to the effect that by the action so brought by the trustee in the Supreme Court, that court obtained full and complete jurisdiction over all the parties to said action, and over the residuary estate of Allen Ayrault, deceased, of which the said Bowditch is trustee, to make a full and complete determination, disposition and distribution thereof among the various parties entitled to share in such distribution, and ‘still retains jurisdiction thereof; and accordingly that the petition in this proceeding must be dismissed.

The jurisdiction of the Supreme Court, being first obtained, was, necessarily, exclusive. It is impossible that two tribunals should entertain jurisdiction of the administration and settlement of the same estate at the same time, a proposition which seems to require no citation of authorities in its support. But to the application of .this proposition the petitioner objects that he was not made a party, in his representative capacity, to the action in the Supreme Court. There seem to us to be two answers to this objection, first, that it was unnecessary that he should have been a party, for the complete adjudication of all the rights of those whom he represents, since all those were themselves parties in their own person and litigated all the issues involved in their own behalf; and, second, that if it were necessary for him to be a party to that action in order to obtain the rights of those whom he represents, he may still become such by intervening therein. The jurisdiction of that court was not exhausted by the rendition of its judgment, but continues until that judgment is executed. (Wayman v. Southard, 10 Wheat. 23; Wegman v. Childs, 41 N. Y. 159.) It is not yet too late for the petitioner, if he can satisfy the Supreme Court that he represents rights and interests in connection with the settlement of the estate in controversy, which have not had their day in court, to obtain an order permitting him to intervene and obtain such a modification of the judgment as those rights and interests may require.

And we think the other answer to the objection is equally conclusive. It is not pretended that any rights of creditors are involved in the controversy as — after the lapse of sixteen years from the death of the intestate — there cannot be. The petitioner, therefore, stands solely as the trustee for the next of kin of Mary Ayrault. (Ledyard v. Bull, 119 N. Y. 62, 72.) But all the next of kin, including the petitioner himself, in his individual capacity, were parties to the litigation and are bound by the judgment. Shall their mere representative be permitted to assail in their bebalf an adjudication which is completely binding upon them, and that too collaterally and in another tribunal of inferior jurisdiction ?

We think the negative answer to this question is compelled by many obvious considerations, and that the lately constituted trustee of the next of kin of said Mary Ayrault must either be content to abide with them the adjudication of their rights already made, or seek to intervene in the same action in which that adjudication was rendered and there to obtain a modification of the judgment complained of.

The decree of the surrogate should be «affirmed, with costs.

Lewis, Haight and Bradley, JJ., concurred.

Decree of the Surrogate’s Court of the county of Livingston appealed from affirmed, with costs.


author: Dwight, P. J.:

text:
    Anna Bundschuh, Respondent, v. Albert Mayer, Appellant.

      Dogs — ownership thereof— liability of the owner.

    Where a man, as the head of a household, occupies certain premises and supports his family, and with them several dogs, which are kept on the place, the dogs, so far as the public are concerned, are presumed to belong to him.
    On the trial of an action brought to recover damages for personal injuries it was shown that the defendant kept certain dogs which were of a vicious character, as he well knew, that they were suffered to go at large without being properly guarded, and that the plaintiff had been injured by them; that the defendant was a householder, occupying with his family premises owned by his wife; that he supported his family, supplied his 'table and was the head of his own household; that the dogs were fed from the table and had the freedom of the premises. The defendant testified that he did not own the dogs and did not own the premises where he lived.

      Held, that the question of the title was of little importance, and that the defendant, as he kept and harbored the dogs, was liable under a proper state of facts for the injuries which they inflicted.
    Appeal by the defendant, Albert Mayer, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 29th day of September, 1893, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of January, 189J, denying the defendant’s motion for a new trial made upon the minutes.

      F. J. Ilone, for the appellant.

      O. F. Miller, for the respondent.
   Dwight, P. J.:

The action was to recover damages for injuries to the plaintiff resulting from an attack by dogs. The complaint alleged that the dogs were kept by the defendant; that they were of vicious character, as l;e well knew, and that they were suffered to go at large without being projierly guarded, etc.

These allegations were supported by the evidence. It was shown that the defendant was a householder of the city of Rochester, occupying with his family and for the purpose of his business, premises which belonged to his wife. He was a milkman, and he kept the cows, horses and wagons used in.his business in a barn on the same premises. He supported his own family, supplied his own table, and was in fact, as well as in contemplation of law, the head of his own household. He kept three dogs on the place, which were fed, as dogs usually are, from their master’s table, and they had the freedom of the premises, except that one of them, which seems to have been recognized as the vicious one of the three, was occasionally kept chained in the barn.

All three of the dogs joined in the attack on the plaintiff, tearing her clothes, snapping at her hands and frightening her badly. She was in a delicate condition at the time, and the evidence tends to show that she suffered from the nervous shock.

The defendant’s answer is a negative pregnant, which can hardly be said to put in issue any one allegation of the complaint. On the trial he was a witness in his own behalf and contented himself with testifying that he did not own either of the dogs, and that he did not own the premises where he lived.

The question of the title to the dogs is of little importance. That they were kept and harbored by the defendant is unquestioned, except as it is contended in his behalf that the fact of his wife’s title to the real property on which they lived makes her, of necessity, the keeper and harborer of the dogs. Of course this contention cannot be maintained. A man may keep dogs, if he is permitted to, on premises which belong to his wife as well as on premises which belong to anybody else. We do not deem it necessary, under the facts of this case, to discuss very fully the effect of the Married Woman’s Acts on the question of who keeps the family dog. That has been done in the case of Quilty v. Battie (opinion by Maynard, J., 135 N. Y. 201), and we are quite assured that the conclusion which we reach in this case does no violence to the principles declared in that case. There a judgment which had been recovered jointly against husband and wife was reversed as to the husband for the sufficient reason, as stated in the opinion, that “ he has been made liable, not on the ground that he was the owner of the dog or that he co-operated with his wife in the commission of a wrong, but solely on the ground of his marital liability for the torts of his wife.”

There are several exceptions to particulars of the charge and refusals to charge as requested in this case, none of which seem to us to have been to the prejudice of the defendant. The cardinal facts which determine his liability are that he was the head of the household; that, as such, he occupied the premises; that he supported his family and with them the dogs which were kept on the place. They were as to the public his dogs, and they were unquestionably kept and harbored by him.

The judgment and order appealed from should be affirmed.

Lewis, Haight and Bradley, JJ., concurred.

Judgment and order appealed from affirmed.


text:
    Hampton Dodge, Respondent, v. Henry Weill, Appellant.

      Commissions on the purchase of real estate — burden of proof.

    In an action brought to recover the amount of certain commissions alleged to have been earned by the plaintiff, under a special contract with the defendant by which the defendant agreed to pay him a certain percentage of the pur-’ chase price of all lands, the sale of which to the defendant should be procured by the plaintiff, the burden of proof is upon the plaintiff to establish the performance upon his part of the alleged contract.

      Appeal by tbe defendant, Henry Weill, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 26th day of September, 1893, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 6th day of September, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Moses Shire, for the appellant.

      S. S. Rogers, for the respondent.
   Dwight, P. J.:

The action was to recover the amount of certain commissions alleged to have been earned by the plaintiff under a special contract with the defendant to pay him two and one-half per centum of the purchase price of all lands, the sale of which to the defendant should be procured by the plaintiff.

The question presented by this appeal is purely a question of fact, upon which the verdict of the jury was, as we think, so far contrary to the just effect of the evidence as to have justified the granting of the defendant’s motion for a new trial at the Circuit, even though that question was properly submitted to the jury. (Colt v. Sixth Ave. R. R. Co., 49 N. Y. 671; Smith v. Ætna Life Ins. Co., Id. 211; Kaare v. Troy S. & I. Co., 139 id. 369.)

The plaintiff’s theory of the contract, under the circumstances of the case, was such as to suggest a careful scrutiny of the testimony bearing upon the question of its performance by the plaintiff. The latter is the question upon which, as we think, the testimony, as it stands in the record before us,' fails to support, to the full extent, the verdict which was rendered. On this question the testimony of each of the parties to the action is directly opposed to that of the other, and at the same time the testimony of several of the vendors in the contracts of sale, alleged to have been procured through the agency of the plaintiff, not only fails to support, but, on the other hand, directly contradicts his testimony in that behalf. Upon this question, material to the plaintiff’s recovery, the burden of ]iroof, which was upon him, was, plainly, not successfully borne in respect to several of the items embraced in the verdict, and for that reason the motion for a new trial should have been granted.

There was, besides, evidence received in the case under the objection of the defendant, to which there is reason to apprehend that undue weight and effect was given. The defendant, when on his cross-examination, was subjected to the inquiry as to what profits he finally made on sales of the several pieces of land for the purchase of which commissions were claimed. The questions were objected to generally, without specifying any ground of objection. The evidence was clearly impertinent to the question which was litigated on the trial. Its apparent object and probable effect was to create the impression in the minds of the jury that the defendant could well afford to make a small dividend of profits to the plaintiff. It is true that the complaint in the action in stating the alleged oral contract of the defendant adds to the allegation of an agreement to pay commissions the following : “ And that if such purchases turned out well that plaintiff should have a handsome percentage on the profits besides.” But when a bill of particulars of the plaintiff’s claim was demanded and supplied, there was no mention of any claim for a share of the profits; when the plaintiff had the case no evidence was given or proposed in support of such a claim, and when the case was submitted to the jury this partial allegation was equally disregarded. It must be understood, therefore, that the cause was not tried upon the theory that there was any such issue in the case, and if the evidence in question had been objected to on the ground that the claim was not in the bill of particulars, its admission would certainly have been error. If its admission now escapes that condemnation the evidence itself does not escape animadversion as having probably tended to create an unfair prejudice in the minds of the jury and to -prodnee'a- verdict, to some extent at least, against the just weight of the evidence in the case.

The judgment and order appealed from should be reversed and a' new trial granted, with costs to abide the event.

Lewis, Haight and Bradley, JJ., concurred.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.


text:
    Joseph Colvin, Respondent, v. Josiah Colvin Young, Appellant, Impleaded, etc.

      Peeunia/ry legacy — when charged on the testator’s real estate — power of a Ufe tenant to dispose of the estate — resting of a legacy to he paid in the executors discretion.

    Where a testator does not leave sufficient personal property to pay his debts, funeral expenses and the pecuniary bequests contained in his will, and the disposition of the residuary estate accords with that construction, it will be presumed that it was his intention to charge the legacies on the real estate of which he died seized.
    Where a will directs that a legacy be paid by a devisee named in the will, the legacy is. charged upon the real estate so devised, whether that devisee be the executor of the will or not.
    The following clause appeared in the last will and testament of a testator:
    “ After all my lawful debts are paid and discharged, I give and bequeath to Josiah Young, my nephew, four hundred (8400.00), to be paid to him when twenty-one years of age, by my executrix, provided that she then judges that he will make proper use of the money ; if she judges otherwise, she shall retain the same, at her discretion, until such time as she shall decide to pay it to him. It is also to be understood that she is to pay no interest on the money if retained by her.”
    Held, that the limitation iihposed by the terms of the bequest, as to the payment of the legacy, had no effect upon the character or the vesting of the gift, which vested absolutely in the legatee upon the death of the testator, and that the limitation related to the time of payment only ; that such limitation was renjoved by the death of the testator’s widow and executrix, and that the legacy became payable at once upon her death.
    The following clause also appeared in such last will and testament:
    “All the rest, residue of my estate, both real and personal, I devise and bequeath to Eleanor Maria Colvin, my wife, to have and to hold as her own during her natural life, it being my will that she be entirely unrestricted in its use, and that she have full power to sell the real estate and give a deed for the same to the purchaser as though it were hers, and her warranty is herein fully authorized by me. If there shall be anything left after her decease, of the estate above given and bequeathed to her, it shall be equally divicled among,” etc.

      Held, that by such language the widow, who was appointed executrix by such will, was given the absolute power of disposition, except by will, of all the residue of testator’s estate remaining after the payment of the pecuniary legacies .bequeathed by the will.
    Appeal by the defendant, Josiab Colvin Young, from, a judgment of the Supreme Court in favor of the plaintiff, in an action brought for the partition of certain real estate, entered in the office of the clerk of the county of Cayuga on the 26th day of March, 1894, •upon the report of a referee, with notice of an intention to bring up for review on such appeal an interlocutory judgment dated the 24th day of March, 1894.

      O. B. Berry and J. D. Teller, for the appellant.

      A. B. Bieh, for the respondent.
   Dwight, P. J.:

The action was for the partition of a farm of fifty acres of land, situate in the town of Aurelius, in Cayuga county, of which Josiah Colvin died seized. There were a great number of parties defendant, none of whom appeared in the action, except the appellant, Josiah Colvin Young, and two infants, both of whom made the usual general answer by guardian ad litem appointed to represent them. The only issue made was by the answer of the appellant, which set up a lien on the property sought to be partitioned, by virtue of a bequest contained in the will of the deceased, and the question whether that bequest constituted a charge on the real estate of the testator is the only question presented by this appeal. The referee appointed to ascertain the rights and interests of the parties, and “ to construe the said will so far as may be necessary,” found and reported in favor of the charge and lien of the legacy on the real estate to be partitioned, while the court at Special Term, on motion to confirm the report of the referee, and for judgment accordingly, held and decided otherwise, and directed a sale and distribution of the proceeds of the real estate without payment of the legacy in question. It is from the judgment entered on the latter direction that this appeal is taken.

The disposing clauses of the will of Josiah Colvin are as follows, and the final clause appoints Eleanor M. Colvin, his wife, its executor:

“First. After all my lawful debts are paid and discharged I give and bequeath to Josiah Young, my nephew, four hundred ($400.00), to be paid to him when twenty-one years of age, by my executrix, provided that she then judges that he will make proper use of the money; if she judges otherwise, she shall retain the same at her discretion until such time as she shall decide to pay it to him. It is also to be understood that she is to pay no interest on the money if retained by her.
“ Second. I give, devise and bequeath to Harriet N. Blakeman, my niece, one hundred dollars ($100.00), to be paid her by my executrix two years after my decease.
“Third. All the rest, residue of my estate, both real and personal, I devise and bequeath to Eleanor Maria Colvin, my wife, to have and to hold’as her own during her natural life, it being my will that she be entirely unrestricted in its use, and that she have full power to sell the real estate and give a deed for the same to the purchaser, as though it were hers, and her warranty is herein fully authorized by me.
“Fow'th. If there shall be anything left after her decease of the estate above given and bequeathed to her it shall be equally divided among my brothers and sisters; where any of them are deceased the share . of said deceased to be given to the legal heirs of the same. This last clause of my will I desire to have executed by the executor or executors of my said wife.”

The personal property of the testator, at the time of the execution of his will, and at his death, exclusive of the farm stock and implements, which it must be supposed he intended to remain on the farm for the use of his wife, was not sufficient in value to pay his debts and funeral expenses and the two pecuniary bequests. This fact, and the manner of the disposition of the residuary estate, go far to bring the case within the doctrine of the familiar cases of Hoyt v. Hoyt (85 N. Y. 142); Briggs v. Carroll (in this court, 20 N. Y. St. Repr. 552; S. C., on appeal, 117 N. Y. 288); McCorn v. McCorn (100 id. 511); Brill v. Wright (112 id. 129), and thus to raise the presumption of an intention on the part of the testator to charge the legacies on the real estate. But the contention of the appellant in this case is not required to rest upon the mere presumption arising out of the form of the testamentary dispositions and the insufficiency of the personal estate. It is, we think, supported by the much more certain and definite rule, of at least equal authority, to the effect that where the will directs that a legacy be paid by the .devisee of the real estate, whether that devisee be the executor of the will or another, the legacy is charged upon the real estate so devised. (See Brown v. Knapp, 79 N. Y. 142, and the cases there cited in the opinion of Eael, J.; also Van Rensselaer v. Van Rensselaer, 113 id. 207.)

If it is objected to the application of this rule in this case that the devise to the executrix is of a life estate, and that there is a final remainder over to devisees not charged with the payment of the-legacy, the objection is, we think, avoided when the particular character of the devise for life and of the final remainder is considered. It will then be seen that the devise to the executrix is by no means that of a mere life estate, but that it gives to her the absolute disposition of the whole of the residue of the estate and the right to exhaust the whole of it in its use by her if she sees fit. The language is : “It being my will that she be entirely unrestricted in its use; and that she have full power to sell the real estate and give a deed for the same to the purchaser as though it were hers,” and then, “if there shall he cmythvng left, after her decease, of the estate above given and bequeathed to her, it shall be equally divided among,” etc. This language plainly gave to the widow and executrix the absolute power of disposition except by will, of all the residue of the estate after, as we say, the payment of the legacies before given. (Leggett v. Firth, 132 N. Y. 7; Thomas v. Wolferd, 1 N. Y. Supp. 610; Flanagan v. Flanagan, 8 Abb. N. C. 413.)

The limitation imposed by the terms of the bequest to the appellant, upon the payment of the legacy, had no effect upon the character or the vesting of the gift. It vested absolutely in the legatee upon the death of the testator, and the limitation related to the time of payment only. (Van Rensselaer v. Van Rensselaer, supra; Hone’s Ex’rs v. Van Schaick, 20 Wend. 564.) But even that limitation was necessarily removed by the death of the widow and executrix. It was her judgment, alone, which was deferred to by the testator in respect to the time of payment of the legacy, and there is no authority anywhere to substitute any other discretion in the place of hers. The gift, necessarily, became payable at once upon her death. •

The executrix had paid twenty-five dollars of the amount during her lifetime, and, by the terms of the bequest, the estate is relieved of the obligation to pay interest during the suspension of payment of the principal in the discretion of the executrix.

The judgment appealed from should be modified so as to declare» tbe legacy in question a lien on the lands to be sold to the extent of $375, with interest from the death of the executrix, and so as to direct the payment of the amount specified to the appellant, out of the proceeds of sale before distribution ^hereof.

Lewis, Haight and Bradley, JJ., concurred.

Judgment appealed from modified so as to declare the legacy to Josiah Colvin Young a lien on the lands to be sold to the extent of $375, with interest from the death of the executrix, such amount to be paid to the appellant out of the proceeds of the sale before the distribution thereof, and as' modified affirmed, with costs of this appeal payable out of the fund.


author: Bradley. J.:

text:
    Hymon Bloom, Suing on His Own Behalf, etc., and Others, Respondents, v. The National United Benefit Savings and Loan Company and Others, Appellants.

      Trial of an action — order of reference continuing a trial begun at Special Term, how reviewed, — waiver of the error in the order of reference — liability of the directors of a corporation for the misconduct of its officers — action to cha/rge them with it — burden of proof.

    Where the trial of an action has taken place at Special Term and the evidence taken therein has been closed, it is not within the power of the Supreme Court to make an order permitting the plaintiff to introduce further proof, and referring the action to a referee to hear the additional evidence, and upon it and the stenographer’s minutes of the evidence taken on the trial to determine the action, without the consent of the parties; if the court make such an order it may be reviewed by an appeal from the same.
    It cannot be reviewed under the provisions of section 1316 of the Code of Civil Procedure, upon an appeal from the final judgment rendered in the action, as the order does not necessarily affect the final judgment.
    Where no appeal was taken from the order of reference, and both the parties to the action participated in the trial so ordered before the referee, an objection taken by one of them before the referee, that the referee had no right to proceed with the trial because the court had no right to make such order, is deemed to have been waived and is not available upon an appeal from the final judgment ■ rendered in the action.
    The directors of a corporation are its managing officers, and are primarily liable to it for losses occasioned by their negligence, for which it has a remedy by an action at law. Their legal privity is with the corporation only, but when a corporation refuses, to sue for such cause, or when it is controlled by the directors who are charged with liability, and, therefore, may be supposed not to permit a faithful prosecution of themselves, a shareholder may bring an action in equity for the requisite relief, to which action the corporation must be made a party defendant, and the practical purpose of the, action is the restoration, for the benefit of all concerned, of the corporate funds or property wasted or lost by the culpable fault of the directors of the corporation.
    ^The directors of a corporation must exercise the same degree of care and prudence in the management of the affairs of the company that men directed by self-interest generally exercise in their own affairs, and where the directors are advised of the misconduct of the officers of the corporation, and unduly permit them to remain in office without taking any action for their removal, they subject ' themselves to the imputation of negligence, and become liable for the consequences of the subsequent peculations of the officers to the prejudice of the corporation; they are, however, neither insurers nor sureties for the fidelity of the officers of the company, and are liable only for losses of its funds attributable to their negligence.
    In an action brought to charge the directors of a corporation with personal liability for the loss of the corporate property, the burden is upon the plaintiff to prove that the misappropriation of the moneys of the corporation by the guilty officers thereof was permitted by the negligence of the directors.
    Appeal by the defendants, The National United Benefit Savings and Loan Company and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 31st day of January, 1891, upon the report of a referee, with notice of an intention to bring up for review on such appeal the interlocutory judgment entered in said clerk’s office on the 20th day of November, 1893, and an order entered in said clerk’s office on the 13th day of June, 1892, reopening the proof in the action and referring the same to a referee to hear and determine, and the order entered in said clerk’s office on the 31st day of January, 1891, confirming the referee’s report on an accounting.

      John H. Uoplvms, for the appellants.

      J. JB. M. Stevens, for the respondents.
   Bradley. J.:

The defendants other than-the company were directors of, The National United Benefit Savings and Loan Company. The action. is brought against them to recover damages resulting from their alleged negligent mismanagement of the affairs of the company. The trial proceeded at Special Term and the evidence was there deemed closed. But upon motion made by the original plaintiff and opposed by the defendants, an order was made by the court that the plaintiff be permitted to introduce further evidence for certain purposes, and that as a condition of reopening the proofs the cause be sent to a referee to hear the additional evidence, and upon it and the stenographer’s minutes of the evidence taken on the trial at the Special Term he determine all the issues in the action, and it was referred to a referee named to hear and determine them. When it came on to hearing before the referee the defendants’ counsel objected that he had no right to proceed with the trial under the order because the court had no power to make it. The objection was overruled. Exception taken, and the trial proceeded.

It was not within the power of the court to make the order of reference, and submit to the referee the evidence before taken, without the consent of the parties, and the error was reviewable by appeal from the order. No appeal from it was taken by the defendants within the time prescribed by the statute for that purpose.. But they took part in the trial before the referee.

The defendants seek to review the order on appeal from the final judgment pursuant to the statute, which provides that an appeal from a final judgment brings up for review “ an intermediate order which is specified in the notice of appeal, and necessarily affects the final judgment.” (Code Oiv. Proc. § 1316.)

The order did not necessarily affect the final judgment, and, therefore, does not come within the provisions of that section. And since given by the judgment was reached, the objection taken by the defendants at the outset before the referee is not available to them on this review. The failure to appeal from the order and proceed-now assert objection to the reference. the parties participated in the trial upon the merits until the result ing to the trial may be treated as a relinquishment of the right to

The defendant company was a corporation created pursuant to “ An act for the incorporation of building, mutual loan and accumulating fund associations.” (Laws 1851, chap. 122.) It was organized August 14, 1890. The articles of association were subscribed by the defendants and by E. I. Nagelstein, W. B. Home and Charles Pscherhofer. Thereupon, Tracy was elected president, Nagelstein vice-president, Pscherhofer treasurer, and Horne secretary. The business existence of the company was short. Oi]/Gctgbei’_15, _1890, the directors, other than the three last above named, and Makk, joined in a petition to the court for its voluntary dissolution, in which petition it was represented that in the meantime 1,320 shares had been subscribed to the capital stock, upon which $2,327.25 had been paid, and that there was no money in the treasury to make the loans contemplated by the payment of the money upon such shares. The losses suffered by the corporation were occasioned by the malfeasance in office of the vice-president, secretary and treasurer.

There is no support in the evidence for any charge of bad faith or affirmative breach of trust on the part of the defendants. The charge made against them is that of negligence. The funds W'ere those of the corporation for certain legitimate purposes. The legal} privity of the directors is with the corporation only. They are its| managing officers, and are primarily liable to it for losses occasioned} by their negligence, for which it has a remedy by action at law. j; (Hun v. Cary, 82 N. Y. 65.) But when a' corporation refuses to! sue for such cause, or when it is controlled by directors who are; charged with liability, and, therefore, may be supposed not to per-J mit a faithlul prosecution of themselves, a shareholder may bring an¡ action in equity for the requisite relief. (Robinson v. Smith, 3 Paige, 222; Greaves v. Gouge, 69 N. Y. 154.)

This right arises out of the interest the stockholders have in the | preservation of the corporate property and the trust relation of the j directors to them. The corporation must necessarily be made a Í party defendant. And the practical purpose of the action is the res- j toration, for the benefit of all concerned, of the corporate funds or ¡ property wasted or lost by the culpable fault of the directors. (Davenport v. Dows, 18 Wall. 626; Craig v. Gregg, 83 Penn. St. 19; Brinckerhoff v. Bostwick, 99 N. Y. 185, 194.) The substantial interests are in the stockholders, and in the present case it seems that the corporation has for all practical purposes ceased to have any potential existence. The directors undertook to exercise ordinary care in the management of the affairs of the company, and as was said in Hun v. Cary, “ the same degree of care and prudence that men prompted by self-interest generally exercise in tbeir own affairs.”

The burden is with the plaintiff to prove that the appropriation of the moneys of the corporation by the guilty officers was permitted by the negligence of the defendants. It now appears that such officers were not worthy of any trust, and the chargeis made of want of_diligence on the part of the defendants in not learning that they were unfit for the offices before their election.to them. The defendants then evidently had confidence in their ability and integrity. One of the defendants had known Pscherhofer for four years and spoke highly of him to one or more of the other defendants, who had known him much less time. He assumed to be familiar with the contemplated corporate business, and Nagelstein and Horne ■co-operated with him in organizing the company. They assumed a knowlédge of the business not possessed by the other directors. They were, therefore, placed in those official positions. The secretary and treasurer were respectively required to give bonds with .surety to be approved by the president. It was done. This apparently was reasonably sufficient to render their relation to the offices satisfactory.

They alone were authorized to receive the money. It was not within the duties of the vice-president to handle any of the money •of the corporation. The defendants cannot well be .charged- with negligence in the outset.

The Union Bank of Kochester was designated as the place for ■deposit of the corporate funds. The by-laws provided that checks ■drawn upon the loan fund should be signed by the president, secretary and treasurer, and those drawn on the expense fund be signed by the secretary and treasurer. And it appears that some of the officers of the bank were so advised.

A few days prior to August 27, 1890, one Groh made application for forty shares of stock of the par value of $100 each, and he assigned to Nagelstein and Horne a mortgage against one Kraft, which exceeded in value that of the stock by something over $300, which was paid to him. On that day the mortgage was transferred to the bank to secure the payment of a note made to obtain a loan ■of the sum of $3,000, of which $2,500 was there credited to the loan fund and $500 to the expense fund of the corporation. This loan was in excess of that which the company was authorized to-make. (Laws 1851, chap. 122, § 5.)

Afterwards Groh asserted that the assignment of the mortgage was obtained from him by fraud, and sought to reclaim it, and his attorney upon such charge obtained restoration of it to his client, and the amount paid to him at the time of the assignment was refunded. And thereupon Pscherhofer and four other directors, who are the defendants other than Makk, gave their individual notes-to the bank in place of that before mentioned, and those four defendants paid the amount of it, aided in doing so by the proceeds,, amounting to about $1,600, of a mortgage taken on the loan of a portion of that $3,000. It is not seen that the imputation of negligence of the defendants, resulting in the loss of any of the money of the corporation, arises out of the transaction of the loan from the bank. The amount of it was all paid without the use of any of the funds of the company other than the portion before mentioned of the amount of such loan. It is, however, urged that the Kraft mortgage should not have been surrendered to Groh. No certificate-of stock had been issued to him. He made the charge of fraud, and it seems that it was deemed advisable to avoid a contest in the matter by giving it back to him. The circumstances of the fraud charged do not appear in the record. It must be assumed that the directors acted in good faith in returning it to him, and if there was any mistake made in doing so it was mere error of judgment for which they are not chargeable with liability.

The unfaithfulness and dishonesty of Nagelstein, Pscherhofer and Horne in their relation to the company appears. And the defendants are charged with culpable negligence in _ permitting them to remain in the positions to which they had been elected as officers and. assigned as members of the executive committee. If the-defendants were advised of the misconduct of those persons, and unduly permitted them to remain in those places without any action for their removal, they subjected themselves to the imputation of negligence, and became liable for the consequences of their subse-l quent peculations to the prejudice of the company.

About the, first of_ September the attention of the directors was called to the fact that Nagelstein had received $600, and the matter was called up, and, as appears by the minutes of a meeting of the directors, he then said such amount had gone into his pocket as commissions for obtaining' shares for another company which were transferred to this company, and the matter was then dropped for the time being to be thereafter examined. There seems to be no further account of that money nor does it appear how or from whom he received it. Afterwards he was required to and .finally did resign his position as an officer of the company. It does not appear that he subsequently received any other money.

On September thirteenth, at a meeting of the directors, one of them called attention to the fact that the secretary, Horne, was inattentive to his official duties, and it also appeared that his habits were bad. He was soon after dismissed from his office. It seems that 57= ----- Pscherhofer, the treasurer, retained longer the confidence of the directors, and he joined with them in demanding the resignation of the vice-president and the removal of the secretary.

He, as treasurer, was called upon to submit his book for examination, and after some delay it was produced. It was found to be incorrect. He said he would look it over and submit it at the next meeting. Then it was found that some pages had been torn out and a new account entered. This was found to be incorrect and charge was made against him to that effect. He became excited and tore the book to pieces.

This was near the time that the company ceased to do business. There is evidence tending to prove that the secretary and treasurer were requested from time to time to render their accounts. They stated that it was necessary to have a certain kind of books adapted to the purpose, and that they had been ordered from the city of New York. This seems to have been a method or pretext employed for delay. N

It is quite evident that the defendants were the victims of misplaced confidence. -They possibly may have been less vigilant than they would have been if the bonds of the secretary and treasurer had not been given, and they may have deemed the loan fund in the bank comparatively safe from the fact that the by-laws did not permit it to be drawn without the check of three officers, of whom the president (Tracy) was one. This requirement was not observed in drawing upwards of $600 of that fund. The condition of insolvency of the company was reached in less than two months after its organization. Some money was required and used for expenses, and in the payment ot officers’ salaries. The amount paid upon subscriptions to shares in excess of those expenses and'salaries was illegally appropriated by the three officers before mentioned or some of them. It appears that the moneys deposited in the bank, before then, were drawn out prior to September 13, 1890.

A considerable portion of the moneys paid in by subscribers to shares did not go into the bank. Although the by-laws required that certificates of stock should be signed by the president he signed none. It seems that the subscriptions were not reported to him, and that he was not advised that the certificates had been issued until shortly before the company ceased to do business.

After the defendant Sheridan took the position of secretary, and before the condition of the company was fully ascertained, he and two other directors each contributed $100 to his credit in the bank to place the company in a situation to take care of its matters. But as it turned out on further investigation the sum so contributed was only little aid toward relief.

The only support found in the evidence for the charge of culpable negligence on the part of the defendants is in their omission to get rid of those officers respectively without delay after their unfitness,; was or should have been ascertained or suspected by them. The» question as to the amount of money of the corporation lost for such cause after that time is not answered by the findings of the referee, nor does it appear by the evidence that the defendants were upon such charge liable to the original plaintiff and those who came in as such for the amount awarded to them upon the direction given by the interlocutory judgment.

The defendants are neither insurers or sureties for the fidelity off the officers of the company. They are liable only for the losses of» its funds attributable to their negligence. (Briggs v. Spaulding, 141 U. S. 132;. Arthur v. Griswold, 55 N. Y. 400.) There was a period; in the short time within which the mischief was done that the defendants were not required to suspect those persons of peculate ing purposes. And the treasurer retained their confidence longer than the other two.

The learned referee found many facts, and then added substantially, that by reason of those facts the shares of the company were rendered worthless, and by reason thereof and of the debts and liabilities negligently incurred by the directors, the plaintiff has sustained damages to the amount paid in by him, with interest, and the proportion for which he may be personally liable of the debts and liabilities so incurred, and that the other shareholders of the company similarly situated have respectively sustained like damages, and judgment was directed accordingly. Six others came in and took the benefit of the direction, and with the plaintiff also recovered.

The specific facts found did not necessarily require the direction of the judgment recovered against the defendants, nor was the recovery had warranted by the evidence. The reason urged by the plaintiff’s counsel for the suggestion that the determination is not reviewable, is deemed not well founded. (Code Civ. Proc. §§ 1301, 1316.)

The final and interlocutory judgments should be reversed and a new trial granted, costs to abide the final award of costs.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Fiual and interlocutory judgments appealed from reversed and new trial granted, costs to abide the final award of costs.


text:
    John A. Smith, Respondent, v. Henry W. Foote, Appellant.

      Executory sale of goods by sample— damages for a breach of warranty — not waived by a failure to counterclaim it in an action for the price — evidence as to a special meaning of word ‘ ‘ like improper rule of damages, when nota ground for reversal.

    The principle is well established that, upon an executory sale of goods by sample with warranty, the goods must correspond with the sample, and the vendee is not precluded from claiming and recovering damages for breach of warranty, although he has accepted the goods after an opportunity for inspection.
    The claim of the vendee for damages for a breach of warranty on the sale of goods by sample is not necessarily dependent upon the vendor’s claim to recover the contract price, and is not waived by the vendee’s failure to set up such breach of warranty as a counterclaim in an action brought by the vendor to recover the contract price of the goods sold.
    Upon the trial of an action brought to recover damages for the breach of an alleged warranty, embraced in an executory contract for the sale of a quantity of stained glass, it was shown that the plaintiff wrote the defendant, inclosing a piece of stained glass and inquiring the price at which the defendant would furnish him with 1,500 feet of glass “like the sample inclosed,” and when he could furnish it. The defendant answered that he could ship immediately the full amount required of glass “ a little lighter than the sample;” that he had on hand about 600 feet “like the sample,” and that he could ship him the full amount “of the same shade” within two or three weeks, as it would shortly arrive; and he quoted the price at which the glass would be furnished. The plaintiff wrote that the price was satisfactory, and gave the order, provided the defendant would ship the 600 feet at once, and the balance within fifteen days, “the glass to be like the sample sent.”

      Held, that the contract plainly embraced a warranty on the part of the defendant that the glass should be of the same shade of color as that of the sample;
    That under the circumstances of the case the plaintiff was entitled to recover the actual damages sustained by him in the use of the glass up to the time when he did in fact ascertain, or ought by the exercise .of reasonable care to have ascertained, that the glass was unfit for the use to which it was put;
    That an offer of the defendant made upon the trial to prove that the word “like” had some special meaning in the glass trade was properly refused.
    Where no exception is taken to the rule of damages applied by the court upon the trial of an action, and it is not apparent upon an appeal that any injustice has resulted from the same, the judgment rendered will not be reversed on account of an improper rule of damages having been prescribed.
    Appeal by the defendant, Henry ~W. Foote, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 11th day of December, 1893, upon the verdict of a jury, rendered after a trial at the Monroe Circuit, (|nd also from an order entered in said clerk’s office on the 12th day of February, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      FT. Bull, for the appellant.

      E. F. TurTc, for tlie respondent.
   Dwight, P. J.:

The judgment appealed from awarded damages to the plaintiff for the breach of an alleged warranty embraced in an executory contract for the sale of a quantity of stained glass. The contract was by letters which passed between the parties. The plaintiff at Rochester wrote the defendant at New York, inclosing a piece of stained glass, and inquiring for the price at which the defendant would furnish him with 1,500 feet of glass “ like the sample inclosed,” and when he could furnish it. The defendant answered that he could ship immediately the full amount required of glass “ a little lighter than the sample ; ” that he had on hand about 600 feet “ like the sample,” and that he could ship him the full amount of the same shade ” within two or three weeks, as it would shortly arrive; and he quoted the price at which the glass would be furnished. The plaintiff wrote stating that the price was satisfactory and giving the order, provided the defendant would ship the 600 feet at once and the balance within fifteen days, “ the glass to be like the sample sent.”

This was the contract. It plainly embraced a warranty on the part of the defendant that the glass should be of the same shade of color as that of 'che sample. The language of the order was “ like ” the sample sent or inclosed. On the trial the defendant offered evidence to prove that the word “ like ” had some special meaning in the glass trade. The offered evidence was excluded, and, as we think, properly, because whatever meaning the word may have had in the general usage of the trade, its meaning as used in this transaction was fixed by the terms of the contract itself. The inquiry was for glass “ like ” the sample. The answer was that, the defendant had on hand about 600 feet “ like ” the sample, but could ship at once the whole 1,500 feet “ a little lighter than the sample,” or the whole amount “ of the same shade ” within a time named, and the acceptance was of the latter proposition. Here the defendant himself makes the clear distinction between glass like the sample and glass only a little lighter in shade, and the contract is closed for glass of the former description only. On the principle so strongly enforced in the case of Zabriskie v. The Central Vt. R. R. Co. (131 N. Y. 72) this was a sale by sample and with a warranty which survived the acceptance of the goods. In that case the sample referred to was not present nor even in existence at the time the contract was made, being the coal sold by plaintiff to the defendant and consumed by it in the previous year; but its qualities had been observed in the results of its use, and these afforded a standard of comparison to which the subject of the later sale should conform. In that case the Court of Appeals adopted the opinion prepared by its late Chief Judge Huger, in which he said: “The principle is well established, that upon an executory sale of goods, by sample, with warranty that the goods shall correspond with the sample, the vendee is not precluded from claiming and recovering damages for breach of warranty, although he has accepted the goods after an opportunity for inspection,” citing Kent v. Friedman (101 N. Y. 616); Brigg v. Hilton (99 id. 517); Gurney v. The Atlantic & G. W. R. R. Co. (58 id. 358).

In the present ease there can be no question but that the sale was by sample and with warranty that the glass should be of one shade of color, and that the same as of the sample furnished. The glass was received by the plaintiff in sheets of varying size, which he cut into the sizes required by the work for which it was intended, and set it in the sashes which had been prepared to receive it. It was only when the sashes, thus glazed, had been framed in the church windows for which they were designed, and a uniform light was transmitted through the glass, that its defects were first apparent. It was then discovered to be of several different shades of color, and to present so mottled and variegated an appearance as to be unfit for its purpose. The windows so glazed were rejected by the architect and the committee having charge of the work, and the plaintiff was compelled to take out the glass furnished by the defendant and supply its place with other and fitter glass procured elsewhere; and, failing to obtain the allowance of his claim for damages, he paid the defendant’s claim in an action for the contract price, and brought his own action for the breach of warranty.

The action was, no doubt, properly brought and maintained. The plaintiff’s claim on the warranty was not necessarily dependent upon the defendant’s claim to recover the contract price, and was not waived by his failure to set it up as a counterclaim to the defendant’s action. (Muller v. Eno, 14 N. Y. 597; Schwinger v. Raymond, 83 id. 198.)

We are inclined to think that the rule of the measure of damages applied by the court in its instructions to the jury was correct under the peculiar circumstances of the case. It was, in effect, that the plaintiff was entitled to recover the actual damages sustained by him in the use of the glass in question up to the time when he did in fact ascertain, or ought, in the exercise of reasonable care, to have ascertained, that the glass was unfit for the use to which it was put. The ordinary rule on that subject is not of universal application (Swain v. Schieffelin, 134 N. Y. 471), and, probably, the particular facts of this case justified the application of a different rule. But no exception was taken by the defendant to the rule actually applied, and since it is not apparent that any injustice resulted therefrom we do not feel called upon to examine that question more fully in this case. There is no other exception in the case which seems to require discussion.

The judgment and order appealed from should be affirmed.

Lewis, Haig-ht and Bradley, JJ., concurred.

Judgment and order appealed from affirmed.


author: Bradley, J.:

text:
    Cleon Stone, by his Guardian, etc., Respondent, v. The Town of Poland, Appellant.

      Damages for personal injuries — the question as to the credibility of witnesses is for the jwry — exception to evidence received for a limited purpose — evidence as to the value of services.

    Upon the trial of an action brought to recover damages, alleged to have resulted through the negligence of a highway commissioner in leaving a highway out of repair, it was shown that a horse driven by the plaintiff stumbled and fell down an embankment which constituted the approach to a bridge. There was a conflict of evidence as to whether the accident was occasioned by the horse stepping into a hole in the highway.

      Meld, that it was for the jury to determine the credit to which the testimony of the plaintiff was entitled in view of all the evidence, and also whether the accident was occasioned without fault on the part of the plaintiff.
    Shortly after the accident the approach to the bridge was covered with plank, and about a year after the accident a witness who had observed the hole on the day the accident occurred, and also shortly after it, went to the place of the accident with an engineer, took out some of the plank and examined the hole. He was asked upon the trial to state the condition of the same, to which objection was taken. The plaintiff’s counsel stated that he expected to prove that the hole was there in the same condition in which it was at the time of the accident. The court held that the evidence was admissible only for the purpose of identifying the condition of the hole when the accident occurred, and overruled the objection.
    The witness testified that it was just the same except that one more chunk had been put into it, and that the surface of the approach was the same as it then was; that planks were taken up to make measurements, and that he pointed out the hole to the person with him who made the measurements.

      Held, that the changed situation, about a year after the accident, only incidentally appeared in the evidence by which the plaintiff sought to establish the condition of the locus in quo at the time of the occurrence of the accident, and as the testimony was received with that view and for such purpose only there was no error in the ruling of the court admitting the same in evidence.
    Upon the trial of an action brought to recover damages for personal injuries, as bearing upon the question of damages, a witness was asked: “What is the value of ordinary farm labor of a young man twenty-one years of age, by the year, in the town of Poland and vicinity?” The defendant’s objection to this question was overruled and an exception was taken. The answer given was §350, followed by further proof that the value of the services of the plaintiff as such laborer was fifty dollars per year. The evidence was evidently intended to relate only to the time since the plaintiff arrived at the age of twenty-one years, which was only nine months before the trial of the action, and to prove that his ability to labor was at such period impaired by his injuries. If it was shown that his occupation was that of working on a farm,

      Held, that it was competent to.prove' the fact, although the action was commenced more than two years before the trial;
    That, although the general inquiry made may not have been proper, as it should have been confined to the value that his services on a farm would have, if he had not been injured, yet' as no objection on that ground was specifically made, the exception to the ruling admitting such testimony was not well taken.
    Appeal by tbe defendant, The Town of Poland, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 5th day of October, 1893, upon the verdict of a jury rendered after a trial at the Chautauqua Circuit, and also from an order made at the Chautauqua Special Term on the 19th day of June, 1893, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon a case and exceptions as settled.

      Framih TP". Stevens, for the appellant.

      ‘A. O. Wade, for the respondent.
   Bradley, J.:

On May 22, 188T, the plaintiff was driving a horse and carriage, in which he was riding, on a highway in the town of Poland, county of Chautauqua, and having crossed the bridge over Oonewango creek, he, with the horse and carriage, was suddenly precipitated over and down the easterly side of the embankment, which constituted the northerly approach of the bridge, and was injured.

lie charges that his injury was occasioned solely by the negligence of the officers of the defendant charged with the duty of keeping the highways within it in repair. And to support the charge, evidence on his part is given tending to prove that there was a hole in the highway at that place, which caused the accident, and that it had been there a length of time sufficient to charge the commissioner of highways with notice of it., The evidence was such as to warrant the imputation of notice to the- commissioner of the existence of the hole in the highway there. The main matters of controversy on the trial were whether at the time in question there was any material defect in the highway at that place, and if there was, whether it caused the plaintiff’s misfortune and injury. The width of the inside of the bridge was twelve feet. The width of the northerly approach was ten feet on top, with rounding slope of about one foot on eithgr side, below which was an abrupt steep descent of about nine feet'near the bridge and for some distance from it. At the outer edge of the easterly track was a hole variously estimated in length, width and depth. The plaintiff testified that his horse in passing from the bridge was scared, sprang to the right, stepped into the hole' and was thrown over and down the embankment, taking the buggy with the plaintiff in it down piso. His evidence is to-the effect that the stepping into the hole caused'the horse to stumble with the result before mentioned.

Whether or not the horse stepped into the hole was an important question of fact on the trial, as the court held that if the injury was occasioned by any other cause the plaintiff could not recover, and so charged the jury. No person other than the plaintiff was present at the time of the accident. But such question was, on the part of the defendant, forcibly contested by evidence of facts and circum stances bearing upon it.

■ There had been that day erected on the westerly side of the approach, below and near to it, a boat house. For this the commis sioner was in no way responsible.

The horse was young and active, and the inference is permitted that it took fright on seeing this structure and suddenly sheered to the right. There is evidence tending to prove by reference to marks made by wheels of the buggy upon the side of the bridge, occasioned by the horse so springing to the right on passing it, that the horse was not, at the time of going over the bank, far enough advanced in the highway from the bridge to step into the hole in view of the distance of it from the end of the bridge.

There was, however, some conflict in the evidence as to the distance the hole was from the planking of the bridge. And there were some conflicting circumstances arising from the testimony of witnesses who first saw and talked with the plaintiff at the place of the injury, to the effect that he then said nothing about the hole. It also appears that some blocks of wood had been put into it. And its condition, at the time of the accident, was matter of controversy in so far that evidence was given to the effect that the hole was by that means then substantially filled up even with the surface, or nearly so, while that was controverted by evidence tending to prove that the hole was open to the depth of eight inches. The horse in some manner went or fell over and down the bank. The cause of it was, upen the evidence, a question for the jury. They saw the witnesses and heard them testify. And the credit to which the testimony of the plaintiff was entitled was, in view of all the evidence and circumstances, for the jury to determine. The question whether the calamity was occasioned without any fault on his part was also for them to consider. He testified that he drove the horse on a walk over the bridge, and sought to keep it under his control by the use of the lines. This was disputed by evidence to the effect that the horse crossed the bridge at a rapid trotting gait. So far as that question was essentially matter for consideration, it may be deemed to have been disposed of by the jury. The case was fairly submitted to them with proper instructions by the court. And we see no occasion to interfere with the conclusion of the jury upon the questions of fact.

Shortly after the accident the approach at the place in question was covered with plank. And afterwards, in April, 1888, a witness, who had observed the hole shortly after the accident, and.the day of its occurrence, went there with an engineer, who was also a witness, took up some of the plank and examined the hole. He was asked to state its condition, to which the defendant’s counsel objected. The plaintiff’s counsel stated that he expected to prove that the hole was then in the same condition as it was at the time in question. The court, holding that the evidence was admissible only to identify the condition of it when the accident occurred, overruled the objection, and exception was taken. The witness testified that it was just the same, with the exception that one chunk more had been put into it, and that the surface of the approach was the same as it then was; that planks were taken up to make measurements, and that he pointed out the hole to the person with him, who made measurements.

In support of the exception is urged the rule which excludes evidence of the fact that changes have been made in conditions existing at the time of an injury and to which it is attributed. (Dale v. D., L. & W. R. R. Co., 73 N. Y. 468; Corcoran v. Village of Peekskill, 108 id. 151.)

But in the present case the changed situation about a year after the accident only incidentally appeared in the evidence by which the plaintiff sought to establish by proof the condition of its loeus ini guo at the time of its occurrence. It was in that view and for such purpose that the evidence was received. There was no error in the ruling. This question had some consideration on the review of a former trial of this action. (58 Hun, 21.)

As bearing upon the question of damages a witness was asked, What is the value of ordinary farm labor of a young man twenty-one years of age, by the year, in the town of Poland and vicinity ? ” The defendant’s objection was overruled and exception taken. The answer given was $350, followed by further proof that the value of the services of the plaintiff as such laborer was fifty dollars per year. This evidence was evidently intended to relate only to the time since August 11, 1890, when the plaintiff arrived at the age of twenty-one years, which was only nine months before the trial, and to prove that the extent of his ability to labor was, as of such period, impaired by his injury in question. It was competent to prove the fact although the action was commenced more than two years before the trial. (Cuming v. Brooklyn City R. R. Co., 109 N. Y. 95.) It appeared that his occupation was that of working on a farm.

The general inquiry may not have been strictly proper, as it should have been confined to the value his services on a farm would have if he had not been injured, but as no objection on that ground was specifically made and might have been obviated if it had been, the exception was not well taken.

There was no error in any ruling on the trial to the prejudice of the defendant.

The judgment and order should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.


text:
    The People of the State of New York, Respondent, v. Edward Hodnett, Appellant.

      Action in the name of the People by the State Dairy Commissioner — when the costs awarded the defendcmt cannot be cha/rged against the county— Code of Civil Procedure, § 3243.
    Where the defendant is successful in an action, brought in the name of the People of the State by one of the assistants of the State Dairy Commissioner, charging the defendant with bringing to a cheese factory adulterated and impure milk in violation of chapter 183 of the Laws of 1885, and obtains a judgment for costs therein, he is not entitled to an order charging the judgment for costs against the county in which the action was prosecuted.
    The reasonable intendment of section 3243 of the Code of Civil Procedure is that the benefit therein referred to must be one peculiar .to the county in its relation to the main object sought to be obtained by the prosecution of the action therein referred to, and it is then only that the burden of the costs awarded to defendants, resulting from the unsuccessful prosecution of actions, is cast upon the county.
    Appeal by the defendant, Edward Hodnett, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Allegany on the 9th day of February, 1894, denying the defendant’s motion to amend the judgment therein in favor of the defendant for costs, by making such judgment for costs a charge against the county of Allegany.

      E. E. <& G. W. Harding, for the appellant.

      Oha/rles H. Brown, District Attorney, for the respondent.
   Bradley, J.:

In this action, prosecuted by one of the assistants of the State Dairy Commissioner, the defendant was charged with bringing to the Filmore Cheese Factory in Allegany county, adulterated and. impure milk to be made into cheese, in violation of the “ Act to prevent deception in the sale of dairy products, and to preserve the public health.” (Laws of 1885, chap. 183.) The trial resulted in a. verdict for the defendant and a judgment in his favor for costs. He seeks to have his costs awarded against the county of Allegany, pursuant to the statute, which provides that in an action brought in the name of the People of the State to recover money or property, or to establish a right or claim for the benefit of a county, “ costs shall not be awarded against the People, but where they are awarded to the defendant they must be awarded against a body for whose-benefit the action or special proceeding was brought.” (Code Civ.. Proc. § 3213.)

The State Dairy Commissioner is charged with the enforcement, of the provisions of the act (Laws of 1885, chap. 183, §§ 12, 19; Laws of 1887, chap. 583, § 2), and. the expenses incurred in the discharge of his duties are paid from, the State treasury. No duty is by the statute devolved upon the officers of any county as such to prosecute actions against those violating its provisions. The money obtained on recovery is, however, divided equally between the State and city or county where the prosecution is had (Laws of 1886, chap. 577, § 5), except that money recovered in actions prosecuted by a citizen of the State is divided equally between him and such city or county. (Id. §§ 6, 25.) The products of cheese factories are articles of commerce, go into the markets of the country, and are dealt out to the public through the retail trade in the towns, villages and cities, of the State. The resulting benefits contemplated by the provisions of the act, in their observance and enforcement, are to the community at large, and they are not necessarily any less to other counties than to those within which the prosecutions are had. The penalty is not.imposed as a benefit, but is a means prescribed to render the beneficial purposes in view impressive and effectual. The recovery of it, therefore, is merely incidental to the object to be attained, and the contribution to the county whose courts are employed to determine such prosecutions is quite reasonable.

It is urged that, for the purposes of the relief sought, it is-sufficient that the object of the action was to benefit the county in any degree.

The protection of the public health is an aim of the act. The-people of the county where the prosecution is had participate in the benefits in that respect, as well as in the money which may be derived from a successful result of such prosecution. But the sanitary advantages to the county are in common with those to other portions-of the State. The reasonable intendment of section 3243, before mentioned, is that the benefit there referred to is one peculiar to the county in its relation to the main object sought to be attained by the prosecution of the action, and it is then that the burden of the costs awarded to defendants resulting from the unsuccessful prosecution of actions is cast upon the county. Then, it may be assumed, that actions would and should be somewhat under the control or direction of the local official authorities.

They do not necessarily have any such relation to those prosecuted pursuant to the act in question, and, as has been observed, the recovery of the penalty is not the chief purpose of it or the ultimate object in view by the prosecution of actions therefor. The purpose is well expressed in the title before mentioned of the act.

In People v. Alden (112 N. Y. 117) it was held that the costs were necessarily awarded against the county of Warren, because the statutes under which the action was brought “ assume that the protection of game and the enforcement of the game laws is a county interest.” To the same effect is People v. Smith (20 N. Y. Supp. 332; 41 N. Y. St. Repr. 170).

That interpretation cannot, we think, be given to the Dairy Act, and, therefore, those cases do not seem to aid the defendant in the present case. The view taken is that the county of Allegany is not chargeable with his costs.

The order appealed from should, therefore, be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Order appealed from affirmed, without costs of this appeal to either party.