text:
    Lizzie Wilson, Respondent, v. Maria Heath, as Executrix of the Last Will and Testament of Orin Heath, Deceased, Appellant.

      Newly-discovered evidence — cumulative evidence — hnowledgeof handwriting — com-pa/rison of signatu

    When newly-discovered evidence is merely cumulative to that given on the trial, it does not furnish a ground for granting a new trial.
    On a motion for a new trial, on the ground of newly-discovered evidence, in an action which involved a disputed question as to the genuineness of the signature of a witness to the written contract of1 a deceased person, affidavits as to procurable evidence were submitted, in which the affiants stated that they had received letters from such witness or had seen him write at or near the time the contract was alleged to have been made, which was some fifteen years before, and had been shown the original contract, and did not hesitate to say that the signature of the witness to the original contract was written by the person whose name it was, but the affiants did not produce the letters or writings referred to. It appeared that the signature of the person in question, attached to his deposition made for and used at the trial, differed from the signature of his name on the contract.
    Held, that it was incredible that the affiants should be able, after such a lapse of time, if produced as witnesses at a new trial, to describe, from recollection merely, the change which the handwriting of the person in question had undergone between the date of the signing of the contract and the signing of his deposition taken in this case.
    On the motion for a new trial, an affiant, who had taken an active part in the case on behalf of the moving party, and had been impeached on the trial, produced certain signatures of the name of the alleged witness to the contract in suit, who was the affiant’s son, which signatures he declared he had discovered since the trial, and which he alleged were genuine, but their genuineness was unsupported by other proof.
    Held, that it was extremely doubtful if such signatures, if offered in evidence upon a new trial, would be held sufficiently proved to furnish a basis for a comparison of them with the signature to the contract, under the statute (Chap. 555 of Laws of 1888), and that it would, under all the circumstances, be an unsafe precedent to grant a new trial upon the ground of such alleged newly-discovered signatures.
    Appeal by the defendant, Maria Heath, executrix of the last will and testament of Orin Heath, deceased, from an order made by Mr. Justice Daniels, and entered in the Orleans county cleric’s office November 11, 1891, granting to the plaintiff a new trial upon the ground of newly-discovered evidence.

      The plaintiff is the daughter of one Robert Hannan. She ■brought this action against the defendant, upon a contract alleged ■to have been made by the defendant’s testator, Orin Heath August 20 1877. That contract is, literatim, as follows:
    “West Barbe, August 20th, 1877.
    “This is to Certify that Mr. Heath of Medina agrees to pay Lizzie Hannan, daughter of Robt. Hannan if she Stays with him and goas by the name of Lizzie Heath and his daughter he would Provide for hir in every respect as his own Child if She gets married and Sattle in life I do bind myself to Pay hir Two thousand dollars also give hir a good fitout and She will also have a Daughters share .in all that I have. ORIN HEATH.
    “ Robert Hannan, Witness.
    '“Wm. Hannan, Witness.”

      ■8. E. Filhvns and E. L. Pitts, for the appellant.

      John J. Pycm, for the respondent
   Macomber, J.:

The complaint in this action is based solely upon the above-quoted ■contract, and prays for judgment for the $2,000 and an outfit, mentioned in the contract, and also for a daughter’s share in all of The property left by Orin Heath, amounting in all to $35,500. The ■answer put in issue the execution of that instrument by the testator.

The plaintiff is one of eleven children of Robert Hannan. In the ;year 1871, when she was ten years of age, she left her father’s home ■and went to live in Medina ■with Orin Heath and his wife, and there •Temained, going generally by the name of Lizzie Heath, until June '20, 1888, when she intermarried with one Samuel J. Wilson. The Trial of the issues came on at the Orleans Circuit in May, 1891, and 'was quite protracted, lasting about a week, and resulted in a verdict of the jury in favor of the defendant. Thereupon a motion for a ■new trial was made upon the minutes of the court, upon the following grounds: (1) Upon the exceptions; (2) upon the ground of newly-discovered evidence; (3)* on the ground that the verdict was contrary :to the evidence; (4) for irregularities and surprise; and (5) upon the ground that the jurors were tampered with. Subsequently, ¡affidavits were prepared and served, asking for a new trial upon the ground of newly-discovered evidence, and these, together with those read in opposition thereto, were considered and passed upon by the trial justice at a time subsequent to the trial term of the court, and that hearing resulted in the order granting a new trial upon the ground of newly-discovered evidence alone.

The learned justice presiding at the trial has written an opinion in which he clearly shows that no error was committed at the trial. The order granting the new trial is, by its terms, made “ on the ground of the newly-discovered evidence of Elisha H. Gage, Hannah Turner, Warrington Paige, Artemus J. Goodwin, Clara A. Goodwin, Cqrnie L. Morgan, John J. Swobe, and the newly-discovered signatures and writing of William Hannan, made about the time of- the contract.”

It becomes necessary, therefore, to examine these affidavits seriatim, to see if they contain any such newly-discovered evidence as to warrant the granting of an order for a new trial. The affidavit of Elisha H. Gage is to the effect that about ten or fifteen years before making the affidayit he met Orin Heath in Medina, when “ Mr. Heath said that he had taken a girl, and he went on to speak of her and of his property, and as I recollect the statement, he. said: ‘ I have taken a little girl, and if she proves a dutiful girl, the same as a daughter to a parent, I intend she shall be an heir, and give,her a share of my estate, the same as though she was my daughter.’ ” Hannah Turner’s affidavit is to the effect that in the spring or early summer of 18Y6 or 18J7, Orin Heath was driving by deponent’s house, and stopped in the road and had a conversation with deponent, whereupon he said that he had just come from Bobert Hannan’s house, that he had been there to get Lizzie, but that he did not find her, as she had gone over to Mr. Cozzins’, and that he was going over there after her; that Lizzie’s sister had been sick, and that Lizzie had been home to see her, and that now her father said she could not go back with him to live unless he would make a written contract as to the property he would give her. Orin Heath then said further, that he would make a written contract, just as Hannan wished him to, for he wanted her to live with him just as she had done.

Both of these affidavits relate to a mere declaration of a deceased person made many years ago, and were the facts therein stated adduced upon a trial, would be regarded as evidence of a very unreliable character. But irrespective of those considerations, it seems to us, that in character and kind, though not in the identical fact there mentioned, they are obnoxious to the rule against allowing new trials where the proposed evidence is merely cumulative. Much evidence of the general character and description of this contained in these two affidavits was actually given upon the trial, namely, the declaration of Orin Heath, made at or about the time the plaintiff went to live with him, and subsequently, all of which was designed to, and did, tend to the same general result sought upon the trial, presenting a condition of things where the jury might say that the testator was likely to have made a contract similar to the one relied upon in this action. This was conspicuously so in the testimony given by Robert Hannan. But Robert Hannan, in order to break the great weight of suspicion which his concealment of the contract until after the death of Orin Heath naturally awakened, testified that its existence was kept secret by him at the request of Mr. Orin Heath himself. Hence it is that these affidavits, particularly that of Mrs. Turner, go far to upset an important theory of the plaintiff’s case as made at the trial.

The affidavits of Artemus L Goodwin, Clara A. Goodwin and Cornie L. Morgan may be considered together. They are in substance, that they had received letters from William Hannan, or had seen him write at or near the time this contract is alleged to have Jjeen made, and that what purported to be the original contract in this action was shown to them, and they did not hesitate to say that the signature, as a witness, of William Hannan, together with the word witness,” was written by William Hannan himself. But these proposed witnesses do not produce the letters or writings of William Hannan, and it is incredible that they should be able, at this late day, if produced as witnesses on a new trial, from recollection merely, to describe the changes which the handwriting of William Hannan had undergone between the time of witnessing the contract and the time of signing his deposition taken in this case.

The affidavit of Warrington Paige was, in substance, that Heath told him that about the year 1877, that he had no heirs or descendants to whom to leave his property, but that there was a young girl living with him who would have his property, who would be pretty well off wlien he got through with it. This evidence, if given upon the trial, would be of the same general character as that already produced, and at best would show no more than an expression of a purpose by Mr. Heath that was never carried out, of adopting this girl under the statute.

Swobe’s affidavit is,' that about the year 1875, he saw Orin Heath and Lizzie Heath, now Lizzie Wilson, in Orin Heath’s garden; deponent asked Heath if that was his girl, and he replied yes, and deponent asked him how many children he had, and he replied

None of our own, this is a girl we have taken.” ' Then deponent asked “ Is it one you have adopted?” and he replied “Yes/’ and then deponent and he talked on the topic of children. That, he .appeared to be very proud of her and he then said that he had taken her as one of his own children, and to be as one of his own, and she should have all that he had got, the same as though she was his own, when he got through with it. This, too, is of the same character as Paige’s affidavit, and the same comment would apply to this as to the other.

But the greatest stress is laid upon the newly-discovered signatures of William Hannan, one of the witnesses to the alleged contract. These signatures are produced in connection with, and are described in the affidavit of Bobert Hannan, the father .of the plaintiff, and the person who has had the principal management of the case in behalf of the plaintiff and in procuring the evidence for the trial. In his affidavit he says that some days before the beginning of the trial of this action, the plaintiff’s counsel urged him to search for and to obtain signatures in the handwriting of deponent’s son William Hannan. That he was unable to procure ■any at that time, as William Hannan was in the State of Washington, but since the trial he has searched and made the following discoveries of such signatures : that after the verdict, he says, he was searching an old cupboard upstairs among a lot of very old books and found a book entitled “ History of M. E. Church, by Doctor Bangs, Yolume 12,” on the back part of the frontispiece of which ■deponent found the' following signature and handwriting of William • Hannan : “ W. Hannan, Braggs Corners, July 4, 1875, at home" with a sore hand.” the alleged original of which was produced upon the hearing. He then testifies that this was the genuine signature of William Hannan; that the n’s and m’s used in this signature are sharp pointed, and the signature is almost identical with that of William to the contract in question. The second new signature he - found in possession of his son-in-law; Earnest Myhill, in a copy of “ Robinson Crusoe,” which belonged to William, wherein it was written “ William Hannan’s book, April 4th, 1881.” This was also exhibited at the hearing and contains the same characteristics of handwriting as that upon the contract in suit. Another one he found in the possession of one of his daughters, Jennie, in a book entitled “ The Daughters of America,” wherein it is written “Wm. Hannan to Jennie ITannan, January 6th, 1878.” At the same interview his daughter. Jennie produced an arithmetic containing the signature of William Hannan.

It is a singular fact that neither the affidavit of Earnest Myhill nor' that of Jennie was made to these important matters. All of those signatures rest solely upon the unsupported and ex parte oath of Robert Hannan himself, who was impeached upon the trial as a man unworthy of credit in any case where he was interested. Though the defense was not confined to an effort to prove that Robert Hannan signed Orin Heath’s name to the contract, yet it is very evident that the jury believed that he was the author of the entire instrument, including all the signatures. That conclusion was borne out by the testimony of many witnesses *who were called in the defense.

It was conceded at the trial that Robert Hannan wrote the body of the instrument. That instrument was before the jury and it has been placed before us, and we are not prepared to say that the jury was' not warranted, from the appearance of the paper itself, and from the history of the case as related by the several witnesses, in arriving at the conclusion that Robert Hannan was the sole author and signer of that instrument. Shall the ex pa/rte affidavit of a witness, so interested as Robert Hannan clearly is, touching these new signatures, fie regarded as of sufficient moment to warrant a court 'in setting aside a verdict and granting a new trial ? There is nothing in his affidavit which would bring the case within the rule that, in all probability, such evidence, if obtained at the trial would have produced a different result. He himself knew, as he says in his affidavit, that there had been a change in the handwriting of William Hannan from the time that this contract was made to the; time of the trial, when William Hannan’s testimony was taken by-commission ; yet he did not offer himself as a witness upon that subject at the time of the trial.

The controversy over William Hannan’s signature arose incidentally, though it was anticipated by the plaintiff’s managers. It was there claimed that his two signatures upon the deposition taken on commission, which of course were genuine, were so unlike his supposed signature as a witness to this agreement, that the signing by him of that instrument was denied at the trial. We cannot say that the question whether or not he was a bona fide signer of that, paper is not an important one, although whether he signed it or not would make no difference, provided it had been shown that Oria Heath himself had signed it.

Were these several signatures of William Hannan which are now produced, offered in evidence upon a new trial, it is extremely doubtful if it could be held that such signatures had been sriffciently proved to furnish a basis for a comparison of those writings with the* signature to the written contract. By chapter 555 of the Laws of 1888, which materially amended chapter 36 of the Laws of 1880, relating to this subject, it is permitted to give evidence of comparison, but it must be shown that the subject of the comparison is the. genuine handwriting of the person claimed on the trial to have executed the disputed writing or instrument. We must assume that, the proof in relation to these new signatures of William Hannan would be the same at the trial as they are in this record. They would stand, therefore, as having been produced by Robert Hannan and upon his oath in regard to their genuineness, unsupported by any other proof. The court, under such circumstances, would, under chapter 555 of the Laws of 1888, probably feel compelled to* exclude such comparison. But, however that may be, it is the common experience of courts and juries that there is scarcely a kind of evidence which is more susceptible- of abuse in actual practice than a resort to a comparison of signatures. Such testimony is at the-best but opinion testimony, not having within itself any element of fact. We think, therefore, that it would be an unsafe precedent in-this instance to grant a new trial upon this ground, and we are constrained to differ from the learned justice before whom the case was; tried, in respect thereto, as well as upon the sufficiency of the other affidavits relied upon by counsel for the plaintiff.

The order appealed from should be reversed.

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

Order appealed from reversed, with costs.


source: Caselaw Access Project

author: Macomber, J.:

license: Public Domain

text:
    Daniel McIntosh, Appellant, v. Michael Battel, Catherine Battel and Maria McElroy, Respondents.

      ■Contract to sell real estate, claimed to home been made by the agent of the vendor — specific performa/nce — proof of a,gency — ratification.

    To entitle a vendee to specific performance of a contract to sell real estate alleged to have been made by the agent, of the vendor, the proof of agency must be clear, certain and specific, or a subsequent ratification by the vendor must be shown.
    A vendee who takes a contract for the sale of real estate, executed by a third party purporting to act as agent for the vendor, has no light to assume that such third party has any authority to sign on behalf of the vendor a contract which contains conditions which, to the knowledge of the person taking the contract, are contrary to the vendor’s expressed wish.
    Negligence of a principal in failing to discover and prevent an agent’s unauthorized and fraudulent acts does not estop the principal from disavowing such acts.
    Appeal by the plaintiff, Daniel McIntosh, from a judgment of the Supreme Court, entered in the Erie county clerk’s office June 14, 1892, on a decision rendered at the Erie Special Term, dismissing the plaintiff’s complaint, without costs.

      Balter, Schwartz & Dahe, for the appellant.

      Framk P. Perlams, for the respondents Battel.

      John T. Gardner, for the respondent McElroy.
   Macomber, J.:

This action was brought to compel the specific performance of a contract, alleged to have been entered into between the plaintiff and the defendants, Maria McElroy and Michael Battel, January 2Y, 1892, for the conveyance to the plaintiff of a farm of sixty acres of land in Cheektowaga, Erie county, at the agreed price of $12,000, to be paid partly in cash, and the balance by the assumption of mortgages.

The alleged contract was made by one James McElroy, the husband of the defendant, Maria. McElroy, who assumed to act as agent of all the defendants. The plaintiff’s counsel filed exceptions only to the refusal of the court to find upon certain questions of fact, which he had requested, as follows: That James McElroy was authorized tu execute the contract on which this action is brought, and that the defendants ratified the contract which James McElroy assumed to have executed as their agent.

The land in question was owned in common by the defendants, Maria McElroy and Michael Battel, and was incumbered, to the amount of $6,400, by two mortgages. The other defendant is the wife of Michael Battel. Two contracts were executed by Jamefe McElroy, the first providing for the sale of this property to the plaintiff for the sum of $12,000, the vendee to assume the two mortgages; this was signed as follows : “ James McElroy, agent for Michael Battel and Catherine Battel and Maria McElroy.”

By the second contract, the defendant, Maria McElroy, was to take a lot on Main street, in the city of Buffalo, owned by the plaintiff, at the value of $2,200, as part payment of her share from the sale of the Cheektowaga farm. This contract was signed as follows: “ James McElroy, agent for Maria McElroy.”

These contracts, which were executed at the same time, without the knowledge of the defendants, were made after several conversations had between the plaintiff and the defendants and James McElroy; but nothing took place between the parties from which the plaintiff had a right to assume'that James McElroy was authorized to execute these contracts. To entitle plaintiff to specific performance of a contract to sell real estate alleged to have been made by the agent of the vendor, the proof of agency must be clear, certain and specific. In tins case, the plaintiff has failed to show that James ‘ McElroy had either authority or a clear and unequivocal appointment as agent, and on this ground [if it appears that there was no subsequent ratification of his unauthorized act] the finding of the learned justice at Special Term must be affirmed.

"While the defendants were anxious to sell their farm, they were unwilling to receive other real estate in' exchange. In fact, the refusal of the defendants to consent to that portion of the contract relating to the Main street lot was well known to the plaintiff, and he had no right to assume that James McElroy had any authority for signing contracts over the heads of these defendants, which contained conditions contrary to their expressed wish, the import of which he well knew.

On the trial, Michael Battel testified that he never told Mr. McIntosh that he would accept the Main street lot, but told him that he would not; that he never authorized James McElroy to make any contracts for him; that he was living not three blocks from McIntosh’s house, and thought that he had sufficient time to go and sign those papers himself, without asking McElroy to sign them for him. And Mrs. McElroy says : “ I told him (McIntosh) that I did not let Mr. McElroy sell my property; Mr. McElroy never sold any of my property, for I would not let him; he never bought any real estate for me; I never gave him any instruction or any authority to sell this Cheektowaga property, or to take the Main street property, because when I sold that farm I intended to get the money for it to help me out of the difficulty I was in.”

From this and other testimony, it is clear that James McElroy was unauthorized to sign these contracts.

As regards the refusal to accept the contracts by the defendants, but little need be said. It was evident that they were ready and willing to sell the farm, but such sale must be for cash. As soon as the plaintiff sought their signatures to the deed, under the alleged agreement, they immediately repudiated the authority of James McElroy, and then and there refused to ratify the contracts. No part of the $100 paid by the plaintiff to James McElroy has ever come to the hands of the defendants.

As the contracts were made on the twenty-seventh of January, "Wednesday, it was not more than two days subsequent when the refusal was made, and James McElroy, in the meantime, having left for parts unknown, without fully explaining his action, the defendants cannot be held responsible for negligence in refusing to ratify the contracts, under the rule contended for by the appellant, that after a party fails to disavow the acts of a person assuming to act as his agent, as soon as he can after they come to his knowledge, he makes these acts his own. But the defendants are upheld by the case of Schmidt v. Garfield National Bank (64 Hun, 298), where it is held that negligence of a principal in failing to discover and prevent an agent’s unauthorized fraudulent acts, does not estop the former from disavowing such acts.

Though the appellant’s counsel in an elaborate course of reasoning, gives a suspicious aspect to the apparent contradictions in the testimony of Mrs. McElroy, tending to show that her reason for refusing to ratify the alleged contracts was because she had heard that the price of land in that neighborhood was likely to rise, and that, in fact, she soon after sold this farm for $30,000, yet, upon the testimony as presented, we see no reason to interfere with the. decision of the trial court on that ground. She repudiated the contract executed by James McElroy at the first opportunity, and it was ten or twelve days after this before the negotiations for the sale at the larger price were had.

For these reasons we think that the trial court committed no error-in his refusals to find as requested by the plaintiff’s counsel. His contention that such refusals were against the weight of the evidence, is not substantiated by the testimony. Therefore, the judgment appealed from should be affirmed.

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

Judgment appealed from affirmed with costs.


author: Macomber, J. :

text:
    Lizzie Briel, Respondent, v. The City of Buffalo, Appellant.
    . , Action for personal injuries — motion for a new trial on the ground of newly-

    When, in an action brought to recover damages iora -personal injury, the defendant is abundantly apprised by the complaint of the extent of the claim made or which may be made by the plaintiff upon the trial, he has no right or reason to be surprised by testimony given by the plaintiff as to the extent and permanency of his injury in such a sense as to.entitle the defendant, on a motion made after the close of the term at which the case is tried, to a new trial on the ground of newly-discovered evidence tending to show that the plaintiff's injury was not as great as claimed by his witnesses át the trial.

      When so apprised, the failure of the defendant to ascertain before the case is moved for trial whether such evidence is available or not, or to move at the trial term for a postponement which will enable him to obtain the necessary witnesses, shows an absence of that due diligence in preparing for trial which is an essential element of the case which a party must make to entitle him to a new trial on the ground of newly-discovered evidence.
    Appeal by tbe defendant, the city of Buffalo, from a judgment of the Supreme Court, entered in the Erie county clerk’s office August 3, 1892, on a verdict for the plaintiff' rendered at the Erie Circuit, and from an order made at the Erie Special Term, and entered on the same day, denying its motion for a new trial.
    The motion for a new trial was made on affidavits and on the minutes of the court. No notice of motion for a new trial upon the minutes was made at the term at which the action was tried. The order from which this appeal is taken is as follows: “ Upon reading amd filing the affidavits produced before me_by the defendants herein, and the affidavits of plaintiff and others in opposition thereto, and after hearing Phillip A. Laing, counsel for defendant, and Wallace Thayer, counsel for plaintiff, it is now ordered that the application of the defendant for a new trial in the above-entitled action on the judge’s minutes be and the same hereby is denied, with ten dollars costs to the plaintiff for opposing the said motion.”

      PhilVvp A. Laing, for the appellant.

      Wallace Thayer, for the respondent.
   Macomber, J. :

This appeal must be treated as one from an order denying the defendant’s motion for a new trial upon the ground of newly-discovered evidence, and from the judgment entered in pursuance of the verdict of the jury.

The action was to recover damages for personal injuries sustained by the plaintiff on the 16th day of June, 1890, on Niagara street, in the city of Buffalo, by being thrown from a wagon on account of an obstruction consisting of a pile of dirt in the street lying between Pennsylvania and Jersey streets. At the trial the plaintiff gave evidence, consisting of her own testimony and that of others, tending to show not only that her injuries were considerable, but that they were of a permanent character, preventing her from doing, as successfully as formerly., ordinary b.ousework. The plaintiffs attending physician, who was called as a witness in her behalf, on cross-examination gave eyidence to the effect that plaintiff would, in his opinion, entirely recover from her injuries at the end of three or four’months. The verdict was for $1,150.

The moving affidavits, used in behalf of the defendant, are designed to impeach the character of the plaintiff, and to show that, her injuries were not as great as her witnesses claimed them to beat the trial. These are met by counter affidavits denying the imputations against the plaintiff’s character, and reaffirming the evidence-adduced at the Circuit in respect to the extent and permanency of her injuries.

e are of the opinion that if it was the intention of the defendant, to deny the facts claimed to exist in behalf of the plaintiff, the time to do so was at the Circuit. The affidavits are insufficient to show that the defendant had any right or reason to be surprised at the. nature of the testimony adduced; for it was abundantly apprised of the claim-made by the plaintiff in the complaint itself where, among-other things, it is alleged that, by reason of the injuries, “ this, plaintiff suffered and sustained serious and permanent injuries to-her head, face, arms, body, limbs and back; that this plaintiff’s head and face. were bruised, and her face was wounded, lacerated and grievously injured. * * * That this plaintiff was thereby prevented from using her body, and attending to her usual business, and work. * * * That plaintiff was informed and verily believes, that her injury is of a permanent and lasting character ; that her features have been seriously disfigured; that she is permanently disabled,” etc. Through these allegations of the complaint the defendant was fully apprised of the extent of the claim made, or which might be made, by the plaintiff upon the trial. And if it be true that the defendant at that time was unprepared to meet such allegations by proof, and still believed that it could, if given time, be able to do so, its proper course was to apply to the court, for a postponement of the trial, in order that the witnesess might be. obtained. But no such motion was made. Due diligence would have required the agents of the defendant, with the plaintiff’s, complaint before them, to ascertain before the case was moved for trial, whether such evidence was available or not, and having failed to do so, they encountered the objection interposed by one of the cardinal rules governing motions for a new trial made upon the ground of newly-discovered evidence, namely, that due diligence was exercised in preparing for the trial.

The judgment and order appealed from should be affirmed.

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

Judgment and order appealed from affirmed.


text:
    Ludwig Herbst, Respondent, v. The Vacuum Oil Company, Appellant.

      Stipulation, as to reading testimony given in another action — application of, to a second, trial.

    A stipulation in writing, signed by tbe attorneys for the respective parties to the action before the first trial thereof, that the testimony given in a certain other action “may be read by either party upon tho trial of the above-entitled action,” is binding and applicable to a second or any other trial of the action in which it is made, so long as the party objecting thereto is not relieved from its obligation by an order of the court, procured on an affirmative application for that purpose, notwithstanding a hotice has been served by one of the parties after the first trial that he would not any longer be bound thereby.
    Appeal by the defeudaut, the Vacuum Oil Company, from a judgment of the Supreme Court, entered in the Monroe county clerk’s office on the 6th day of July, 1892, and from an order denying its motion for a new trial, entered in said clerk’s office on the same day.

      M. H. Briggs, for the appellant.

      Q-eorge Truesdale, for the respondent.
   Macomber, J.:

This action was one of many like actions brought against the defendant to recover damages for personal injuries, received through the explosion of naphtha in the city of Rochester on the 21st day of December, 1887. The case has been twice tried. On .the first trial a- verdict of $6,800 was rendered for the plaintiff, which was set aside by-the trial judge on the ground of being excessive, and on an appeal from that order to this court the decision was.affirmed. On the second trial, now under review, the verdict was for the plaintiff in the sum of $4,000.

It is not needful to go into the facts of the case, because they do not differ in any material aspect from those so often considered by the courts in .other cases arising from the same cause. The verdict clearly was not, in this instance, excessive, and the judgment should be affirmed unless certain errors complained of by the learned counsel for the appellant are of sufficient moment to lead to a different result. An exception was taken to the reading of evidence under a stipulation made by the parties in this case before the first trial, which was in the following words : It is hereby stipulated that the evidence of any of the witnesses testifying on either side of the case of Ann Lee, as Administrator, etc., v. Vacuum Oil Company, tried at the June Circuit, in the year 1888, may be read by either party upon the tidal of the above-entitled action to the same effect as though said witnesses were present and examined orally. Either party to have the right to call any of said witnesses for further examination.” This was signed by the attorneys for the parties respectively. The point was made at the second trial, and is now urged upon us, that it was not competent for the plaintiff to avail himself 'of this stipulation and to read the testimony given in the Ann Lee case upon the second trial. The objection was overruled by the trial court and such evidence offered was read, to which an exception was taken.

We find in this stipulation no limitation as to- the trial at which it should be applicable. The language is “that such testimony may be read by either party upon the trial of the above-entitled action,” etc. We have examined each of the several cases to which counsel has directed our attention as to the construction of stipulations and agreements, but we fail to find any case among them which is an authority for the contention now made. The claim by the defendant does not arise upon an application to the court, to the favor, to be relieved of the terms of the stipulation, and the question addressed to the Circuit and to us is solely one of the construction and meaning of the - writing itself; and we have no doubt but that the learned justice at the Circuit was clearly right in holding that the same was binding and applicable to any trial so long as the defendant was not relieved from its obligation by order of the court procured in an affirmative application for that purpose, notwithstanding the notice served by the defendant after the first trial that it would not longer be bound thereby.

Another exception is made to the rejection of certain testimony of Dr. Rider sought to be adduced upon his cross-examination by counsel for the defendant. Dr. Rider had given evidence designed to show, that among other injuries was that to the eyes of the plaintiff caused by the flames of exploding gas. It was shown, however, that the plaintiff had been engaged at times, among other things, in pecking and drilling stone, and it was sought to bring out upon the cross-examination of this witness an opinion that the injury complained of might have been inflicted by pieces of stone or steel flying from a chisel in the hands' of the plaintiff. The question was : “Assume that a speck of steel or stone flies and strikes the eye, may it jn-oduce such a condition ? ” Objected to. Objection sustained. “ Q. I will ask you whether a piece of steel or stone striking the eyeball, or any other hard substance, will produce similar conditions to those that you saw ? ” Objection by plaintiff’s counsel. Objection sustained. Defendant duly excepted.

But the witness did immediately answer that anything that produces an inflammation of the cornea might produce similar specks to those which he had discovered in the eyes of the plaintiff. But the counsel seems to have recurred to the same subject later on, and his persistency was rewarded by procuring from the doctor the opinion which he had sought. He said: “ If we -have a perfect eye, and then a burn and then a scar afterwards, with no other probable cause, no matter what our prejudice or theories are, logic is inevitable. Ve must assume that which preceded was the cause. If there are two causes which can be assumed in the case, one, the sharp point of an irritating substance, and another, a burn on the white of the eye, no matter how profound, and the condition observed was a minute point of a scar, I should say the scar was caused by the pointed instrument.”

"We think, on the whole, that these exceptions, which alone furnished the basis of the oral argument presented by the learned counsel, do not afford any ground for reversing the judgment.

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

Judgment and order appealed from affirmed.


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    Moses D. Tenant, as Administrator with the Will Annexed of William H. Renouard, Deceased, Respondent, v. Eugene Dudley, Appellant.

      Life insurance policy, as collateral security — right to the proceeds,

    "When a policy or certificate of life insurance has been assigned by the insured to a creditor as collateral security by inserting in such certificate the creditor’s name as that of the beneficiary, such beneficiary, on payment to him of the amount of the certificate, by the insurance company, on the death of the insured, will be entitled to retain, as'against the personal representative of the insured, only the actual amount of the indebtednesss due to him from the decedent.
    Appeal by the defendant, Engene Dudley, from a judgment of the Supreme Court, entered in the office of the clerk of Chautauqua county January 26, 1892, on the verdict of a jury at the Chautauqua Circuit; and also from an order entered in said clerk’s office January 16, 1892, denying his motion for a new trial made on the minutes of the court.
    Cooke, JFis'her ~Wade, for the appellant.
    8.' TP. Mason, for the respondent.
   Macomber, J. :

This action was brought to recover the amount received by the defendant upon a policy or certificate of life insurance issued by a, company, known as the Equitable Aid Union, in the sum of $1,800’ upon the life of the plaintiff’s testator, William H. Benouard. Tin's; certificate or policy was originally made payable to the insured, or to his wife, but subsequently it was surrendered and a new certificate or policy-taken, made payable to the defendant Eugene Dudley. This policy was originally issued in the year 1886. In November of that year the arrangement for a change in its terms in respect to the beneficiary or payee, was made by the insured and the defendant, and the same was ratified and carried into effect by the company.

The complaint proceeded upon the ground that this assignment of the original policy, or the arrangement by which the new certificate was issued to the defendant, was made as collateral security to the defendant for the payment of an indebtedness of about $180 owing to him by the insured.

The answer averred that such indebtedness amounted, at the time of this arrangement, to upwards of $1,300, and that the defendant took an absolute title to the policy and was entitled to the payment ■of the entire sum of $1,800. It was also avei-red in the answer and proved, that after the assignment of the policy to the defendant, ■ the latter continued to pay all premiums falling due until the 29th <day of January, 1889, the date of .the death of the insured. No ■question was raised with the company touching the right of the ■defendant to receive, under the assignment, the entire sum of $1,800. This action is brought to recover such sum, less the amount of the indebtedness owing by the insured to the defendant.

The evidence shows with much conclusiveness that the defendant received the assignment of this policy or certificate as collateral .security only for the payment to him of any sum which might be ■owing by the insured to him. The verdict of the jury was in the ■sum of $1,196 for the plaintiff. This result is amply sustained by :a clear preponderance of the evidence. Indeed, in view of a writing put in evidence, executed by the defendant, with others, on the 5th day of March, 1889, any verdict more favorable thaii this to the defendant could hardly be expected, and if such verdict had ■been rendered the same could not have withstood a motion for a mew trial upon the ground that it was against the weight of evidence. By this written agreement, under seal, executed within two .months of the death of the insured, the defendant agreed to receive ■as his part of the sum to be paid by the insurance company, the ■sum of $500 in full discharge of all his claims upon the policy, and the residue of that sum was to be divided in a manner not necessary to state for the purposes of this decision except that it was to go to the supposed next of kin or hems at law of the insured. "With this unmistakable evidence in the case, the claim now set up by the defendant must be deemed to be wholly untenable.

Certain exceptions appear to the rulings of the court upon the .~recqption of evidence which have been a subject of examination by üs, but they are not, in our judgment, of sufficient moment to call upon us for any discussion.

Tbe judgment and order appealed from should be affirmed.

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

Judgment and order appealed from affirmed.


text:
    Augustus F. Purdy, Appellant, v. Hezekiah C. Bennett, Impleaded with William M. Smith, Petitioner, Respondent. Same v. Same.

      Vacating a judgment in ejectment on the application of the “ assignee ” of the defendant — Code of Oivil Procedure, § 1536.
    Smith, the purchaser of land on the foreclosure of a mortgage made by one Paul, brought an action to recover possession of the land from a person named Bennett, whose possession had originated under Paul, and recovered a judgment against Bennett for the possession of the land; thereafter, Smith discovered that, by agreement with Bennett, one Purdy had taken judgment in two actions against Bennett for portions of the land.

      Held, that Smith was the assignee of Bennett, within the meaning of the provision of section 1536 of the Code of Civil Procedure, which authorizes the opening of a judgment in, ejectment, obtained otherwise than on the trial of an issue of fact, “upon the application of the defendant, his heir, devisee or assignee,” and that an order, made upon the petition of Smith, opening the judgments . obtained by Purdy against Bennett, and letting Smith in to defend the actions, was proper.
    Appeal in each of the above-entitled cases by Augustus F. Purdy, the plaintiff, from an order of the Erie Special Term, made September 19, 1892, opening judgments which had been entered in these actions in Allegany county clerk’s office February 25, 1890, and allowing the petitioner, the respondent, William M. Smith, to interpose a defense in each of them, and making him a party defendant therein.

      G. W. Harding, for the appellant.

      John S. JRoohwell, for the respondent.
   Macomber, J.:

The respondent, "William M. Smith, presented his petition to the court, under section 1526 of the Code of Civil Procedure, asking that he might be made a party defendant. This application was granted, and from the order entered thereon this appeal is taken.

The petition alleges that William M. Smith is the owner of certain premises described in the complaint, known as the north half of the village tract of the Caneadea reservation, in the town of Hume, Allegany county. His title was procured as follows: One Joseph M. Paul, who was then the owner in fee of the premises, executed, with his wife, a mortgage to the petitioner upon those premises, dated the 17th day of April, 1886, to secure the payment to the petitioner of the sum of $2,000; that default was made in the payment of such mortgage, and thereupon the same was foreclosed, which proceeding resulted in the conveyance of the lands by the sheriff of Allegany county to the petitioner. These allegations are not disputed by the appellant.

After obtaining his deed, the petitioner found that Hezekiah C. Bennett, the defendant above mentioned, was in possession of the premises and refused to surrender the same to the petitioner; whereupon an action was brought by the petitioner against him, which resulted in a judgment in favor of Mr. Smith, on the 11th day of March, 1892, for the possession of these lands.

Bennett’s possession and right of possession originally existed under Joseph M. Paul, to whose rights the petitioner had succeeded as above mentioned. Not until after the judgment was procured by the petitioner against Bennett was it that the petitioner learned that the plaintiff, Augustus F. Purdy, made claim to the premises. One of the above actions was brought on the 23d day of August, 1880, and the other, March 9, 1886. On the 27th day of September, 1889, an agreement was entered into between Purdy and Bennett, providing that Purdy should take judgment against Bennett for certain portions of this village tract, and that Bennett should have the privilege of leasing the same from Purdy for five years, which agreement resulted in the judgments of February 25, 1890, above mentioned.

The respondent brings himself clearly within the provisions of section 1526 of the Code of Civil Procedure. This section provides that in an action of ejectment wherein judgment was obtained by the plaintiff, otherwise than upon the trial of an issue of fact, * * * within five years after the judgment roll is filed, the court, upon the application of the defendant, his' heir, devisee or assignee, * * * must make an order vacating the judgment, and granting a new trial, if it is satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained and established, but not otherwise.” The respondent is certainly the assignee of Hezekiah C. Bennett, within the meaning of this provision of the Code, and within the decision of Howell v. Leavitt (90 N. Y. 238).

The only question, therefore, which was before the Special Term, was, whether the court should grant the prayer of the petitioner, upon the terms stated in the order, or whether it should drive him to his affirmative action of ejectment against Purdy, and ~w,e are satisfied, equally with the ’‘Special Term, that justice will be promoted by opening these judgments and letting the petitioner defend the actions.

The orders appealed from should be affirmed.

Dwight, P. J., and Haight, J., concurred, Lewis, J., not sitting.

Order in each case appealed from affirmed, with one bill of ten dollars costs and disbursements of appeal.


text:
    Herbert H. Charles, Respondent, v. William W. Prentice, Appellant.

      Case presenting a question of fact onty — 'determination of the jury not disturbed.

    When, on a trial before the court and jury in a County Court, on appeal from a Justice’s Court, Of an action brought to recover the value of labor and materials, all evidence adducible upon the question in issue is given, and the charge states the issues between the parties with distinctness and precision, - and every question properly cognizable by the jury is turned over to them for their decision, and no exception is made to any portion of the charge, nor any request to add to it, the case presents purely a question Of fact, and in the absence of any meritorious exception to the admission or rejection of evidence, the determination of the jury will not be disturbed by the General Term upon an appeal from a judgment entered on the verdict.

      Appeal by tbe defendant, "William W. Prentice, from a judgment of the County Court of Wyoming county, entered in the office of the clerk of Wyoming county on the verdict of a jury January 13, 1892, in a case taken to that court on an appeal for a new trial by the defendant, from a judgment of a justice of the peace of the town of Warsaw.

      F. W. Brown, for the appellant.

      Elmer E. Charles, for the respondent.
   Macomber, J.:

The action is brought to recover the value for labor . performed and materials furnished by the plaintiff to the defendant in drilling a well for the latter; and also for the value of a pump sold by the plaintiff to the defendant, and for labor in setting the same.

The defense alleged, as part of the agreement between the parties, that the well should be drilled to a sufficient depth to obtain plenty of good and wholesome drinking water for the defendant’s domestic purposes and for such uses as a well is ordinarily put upon a farm, and that in case of failure thereof the plaintiff was to have nothing for his services or for the materials furnished in drilling the well. Thence follows an averment that the plaintiff failed to fulfill his part of the contract, and did not drill such a well as was called for by the agreement, and that the well did not produce plenty of good and wholesome drinking water for the defendant’s use.

The case was tried before the county judge of Wyoming county and a jury, and all evidence addueible upon the questions in issue appears to .have been given. The cljarge of the learned judge stated the issues between the parties and the questions for the jury with distinctness and precision, and every question that was properly cognizable by the jury was turned over to them for their decision. No exception was made to any portion of his charge and no request by either party to add to it anything which the learned judge had failed to mention to the jury. It was, therefore, purely a question of fact, and the determination of the jury, which was in favor of the plaintiff in a verdict of $145.20, cannot be disturbed by us upon this appeal. Some exceptions to the rejection of evidence appear in the record, but they are wholly without merit and am Worthy of no comment.

Judgment appealed from should be affirmed.

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

Judgment of the County Court of Wyoming county appealed from affirmed, with costs.


author: Maoomber, J.:

text:
    Esther C. Townsend and Another, Appellants, v. Joshua Rackham and Others, Respondents.

      Mortgage containing a testcmenta/ry provision merely — no trust created — effect off a satisfaction of the mortgage.

    When it is apparent that the sole purpose of a mortgagee in taking back, on , making successive conveyances of bis land, purchase-money mortgages, after-wards satisfied and discharged of record by him, conditioned for his own support, during life and for tbe payment after death of certain specified sums to persons, named therein, was to make provision for himself during his life and to make a, testamentary provision for the beneficiaries named therein, and not to create any-irrevocable interest in tbe lands, and it appears that the beneficiaries named im tbe mortgages bad no knowledge of tbe execution and delivery thereof, nor in any-manner accepted or assented to - any of tbe mortgages, or to any provisions: thereof in their favor, prior to tbe satisfaction of tbe mortgages by tbe mortgagee, no trust is created in behalf of tbe beneficiaries named in tbe mortgages: ' which can be enforced by them, after tbe mortgagee’s death, against tbe lands on which tbe satisfied mortgages have been given.

      McPherson v. Hollins (107 N. Y. 316), distinguished.
    Appeal by the plaintiffs,. Esther C. Townsend and Willard Brown, from a judgment of 'the Supreme Court, entered in Orleans county clerk’s office March 19,1892, on the decision of the court at the Orleans County Special Term, dismissing their complaint upon the merits.

      Henry M. Dams, for the appellants.

      George Bullard, for the respondents.
   Maoomber, J.:

The maiden name of the plaintiff, Esther C. Townsend, was Esther C. Lutts. The plaintiff, Willard Brown, is the assignee- of the administrator of the estate of Maria Leach, who died July 12, 1890, in the State of Iowa. These two persons, Esther O. Lutts •and Maria Leach, were grandchildren of Catherine Earnham, here, .inafter mentioned.

On the 26th day of September, 1857, Catherine Farnham, who 'was seventy-three years of age and a widow, deeded to her two grandchildren, the defendants, Almeron O. Wilson and Yalentine A. Wilson, a deed of her farm in the town of Carlton, Orleans county, N. Y., and received back from the grantees a mortgage containing the following condition: “ This grant is intended as a security for the payment of the following sums of money, to wit, $75 on the first day of January, and $75 on the first day of July, in each and every year hereafter during the natural life of the party of the second part, to be paid to thé said party of the second part at the house of the party of the first part in the town of Carlton. And the further sum of $1,500 to be paid as follows: One thousand dollars to be paid to Maria Leach or her heirs, five years from the death of the said party of the second part, and $500 to be paid to Esther C. Lutts, five years from the death of the said party of the second part (the several sums herein mentioned is for the purchase money of said premises). And as a further consideration to these presents it is agreed between the party that in addition to the sums above mentioned and agreed to be paid, the said party of the first part agrees to and with the said party of the second part to provide her, the said Catherine Farnham, a home at their home or homes, at all times, when she may choose, during her natural life, and provide for her board and all necessary clothing and all things necessary and proper for her comfort and support during her natural life. And this conveyance shall be void if such payments be made as hereinafter specified, and in case default shall be made in the payment of the above sums hereby intended to be secured, or any part thereof, or in case default be made in providing for and taking care of the said party of the second part, as above provided, it shall be lawful for the party of the second part, her executors, administrators or assigns, at any time thereafter, to sell the premises hereby granted, or any part thereof, in manner prescribed by law,” etc.

On the 12th day of October, 1857, this mortgage was discharged by Catherine Farnham and the discharge was delivered to the mortgagors, whereupon they gave her a second mortgage containing the same conditions as the first, except that in the condition for support these words were added: “.While living with the party of the first part.”

This second mortgage was in turn discharged on the 15th day of October, 1858, by Catherine Farnham, and the Wilsons thereupon conveyed the -lands back to her. She then deeded to Susan A. Wilson, wife of Valentine A. Wilson, the north half of the farm, and to Lovina L. Wilson, wife of Almeron O. Wilson, the south half thereof, and took back from each a mortgage for her support, containing these provisions : “ While living with the party of the first part, $37.50 semi-annually, and as security for the payment to Esther ■-C. Lutts of $250, and to., Maria Leach $500, five years after the death of Catherine Farnham.” Lhe other conditions of the mortgage were the same as those contained in the first mortgage. -On the 11th day of May, 1861, Catherine Farnham discharged these last two mortgages, and delivered the discharges to Lovina L. Wilson and Susan A. Wilson, respectively, and they in turn deeded back to her the farm previously deeded to them. Thereupon Catherine Farnham deeded the south half of the farm to Almeron C. Wilson, and the north half to Valentine A. Wilson, and took back from each of them a mortgage containing the same conditions as the last two, mortgages, except that her annuity was-stated to be fifteen dollars semi-annually instead of thirty-seven -dollars and fifty cents. On October 1, 1868, Valentine Wilson deeded his north half of the farm to Almeron O. Wilson. On December 11, 1870, Catherine executed a discharge of the mortgage given by Almeron C. Wilson on the sorrth half of the farm, and Almeron O. Wilson gave the mortgage thereon to one Isaac Cochrane for $1,500, for money borrowed. After this last-named mortgage was recorded, and on January 2, 1871, Almeron O. Wilson gave Catherine Farnham a mortgage on this half, containing the same conditions as his mortgage of May 11, 1861.

The trial justice has found as a fact, which finding is well supported by the evidence, that neither Maria Leach nor Esther C. Lutts had any knowledge of the execution and delivery of, or in any manner accepted or assented to, any of the mortgages described above, or any of the provisions in any of these mortgages in their favor prior to such satisfaction. No claim was ever made by them Under any of these mortgages until this action was brought. On .the 7th day of February, 1873, Catherine Farnham execixted a discharge of the mortgage given by Almeron C. "Wilson January 2, 1871, and also the mortgage given by Yalentine A. Wilson May 11, 1861, and took back from the former a mortgage on the 151 acres for her support and for the payment to her of sixty dollars a year, to pay her funeral expenses and to erect suitable gravestones at her grave, etc. Catherine Farnham continued to reside in the families of Almeron C. Wilson and Yalentine A. Wilson from September, 1857, to the time of her death, which was August 20, 1883.

The defendant, Joshua Rackham, is a grantee in good faith and for value of these lands from Almeron O. Wilson. The defendant, Fred. G-. Coann, is the owner of another mortgage upon these premises in the sum of $1,800, which he received through various assignments, and this mortgage, too, the trial court has found to have been taken and is held in good faith and for value.

The plaintiffs seek to work out an interest in these lands through a supposed trust created by the mortgages above mentioned. If this position had any foundation for its support under the instruments as they were originally drawn, the plaintiffs having no knowledge thereof, and never having taken advantage of the same, prior to the rescission thereof, could not work out a trust in their behalf susceptible of enforcement, so long as the relation of cestui que trust and trustee appears not to have been established. (Acton v. Woodgate, 2 Myl. & K. 492.)

But, clearly, there was no trust created in behalf of Miss Lutts or Miss Leach by these instruments. There was no consent to the creation of a trust either by the mortgagor or mortgagee. Indeed, the very negative of this proposition is abundantly established by the strong circumstances pervading the case, which indicate that it was the sole purpose of Catherine Farnham in making the deeds and receiving back these mortgages to make provision for herself during her lifetime, and to make a testamentary provision also for her two grandchildren, Esther C. Lutts and Maria Leach.

It appears, furthermore, that she sent for her scrivener and stated to him that she fished to have a will drawn, and thereupon the scrivener said he could fix it for her by way of a deed and mortgage. She was informed by him that this arrangement would be just the ■same as a will, and that she could revoke it at any time in the same manner as she could a will. She expressed her purpose to control the property while she lived, and desired to have it arranged' in a safe manner for her so she could make any changes which she pleased. Under this evidence, but especially under the persuasive circumstances attending the history of these several instruments, the learned justice was well justified, we think, in finding as a matter of fact, that Catherine Farnham did not intend, at any time, to create any irrevocable interest in these lands, in either Esther O. Lutts or Maria Leach, thus taking the case out of the operation of the decision in McPherson v. Rollins (107 N. Y. 316). If parol evidence was required to characterize the purpose of these deeds and mortgages, the same is competent under the decision of this court in Kelsey v. Cooley (11 N. Y. Supp. 745; 33 N. Y. St. Repr. 775).

Objection is made that the evidence of Lovina Wilson was incompetent, and that, as the same was objected to and the objection finally overruled by the court, a new trial should be granted upon the ground of the exception taken to such ruling.

But Lovina Wilson had no interest in the action, although she was made a party thereto. She had no interest in the result because the property had passed into the hands of a bona fide purchaser, Joshua Rackham. She was not in any sense an interested party to the subject-matter of such conversation, and took no part therein, and hence was a.competent witness. (Simmons v. Havens, 101 N. Y. 428; Cary v. White, 59 id. 336; Kelsey v. Cooley, supra.)

It follows that the judgment appealed from should be affirmed.

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

Judgment appealed from affirmed, with costs.


text:
    In the Matter of the Application of the Cross-Town Street Railway Company of Buffalo, N. Y.

      ■Street railways — failure to obtain consent of property owners — application for commissioners for a part only of a street and for less than that included in the route as projected.

    When a street surface railroad company has obtained the franchise, and the consent of the municipal authorities, to build and operate its road upon a projected route which includes the whole or a part of a particular street, it cannot divide up such projected route in that street and obtain the appointment of commissioners to determine whether the road shall be laid out and operated, as to a part only of such particular street, less than the portion thereof included in the route as projected, upon its failing to obtain the consent of property owners along such lesser part of the street.
    Application by the Cross-Town Street Railway Company of Buffalo, N. Y., for the appointment of three commissioners to deter, mine whether its railroad should be built in certain portions of Prospect avenue in the city of Buffalo.

      Box, Norton, <& Bushnell, for the petitioner.

      Henry F. Allen, for certain property owners, opposed.
   Macomber, J.:

The petitioner, the Cross-ToWn Street Railway Company of Buffalo, was organized under chapter 252 of the Laws of 1884. Pursuant to chapter 642 of the Laws of 1886, as amended by chapter 564 of the Laws of 1889, this company obtained the right, by purchase at public sale, to operate its surface railroad through certain streets in the city of Buffalo, among which was Prospect avenue from Huron street to Pennsylvania street, a distance of 3,925 feet, being six blocks along Prospect avenue. The present application, however, is for the appointment of commissioners to determine whether the railroad should be laid and operated in that avenue from Huron street to Carolina street, a distance of only 1,115 feet, being two blocks along that avenue.

In the month of January, 1892, this corporation applied to the General Term, at Buffalo, for the appointment of commissioners tq determine whether the railroad in Prospect avenue, as originally projected, should be constructed. It was then alleged on the part, of the petitioner, that, after proper efforts- made in that behalf, it had been unable to secure the requisite number of consents of the property owners to enable it to proceed with the work. That application was opposed; and by consent the hearing was adjourned until the June term, 1892, at which time the company abandoned its application so made in the preceding January. The limitation prescribed by the statute (Chap. 281 of the Laws of 1889, and § 93 of chap. 565 of the Laws- of 1890), for procuring the consent of property owners, or the appointment of commissioners by the General Term of the Supreme Court, was two years from the time of obtaining the consent of the municipal authorities of the city of Buffalo for the construction of such railway. But by contract entered into with the city of Buffalo, January 1, 1892, which was, subsequently ratified and confirmed by the Legislature (Chap. 151,, Laws of 1892), the time in which to build the petitioner’s road in Prospect avenue was extended' until the 8th day of February,. 1896.

The petition before us shows that diligent efforts have been made by this corporation to obtain the consents of the property owners along that portion of the proposed route in Prospect avenue. lying between Huron street and Carolina street; but that such efforts have been unavailing, and that it has not and cannot procure the consents of the owners of one-half in value of the property owners whose property is bounded on the proposed route. Under this, state of facts, it is contended by the learned counsel for the petitioner, that this court has no discretion, in the premises, but, upon being satisfied that the company after diligent effort has been unable-to procure the requisite number of consents, is required to appoint, three commissioners who shall inquire into the matter and report upon the same. The language of the statute is : “ If the consent of property owners required by any provision of this article cannot be obtained, the corporation failing to obtain such consents may apply to any General Term of the Supreme Court, held in the department in which it is proposed to construct its road, for the appointment of three commissioners to determine whether such railroad ought to be constructed.and operated.” Thence follow provisions for giving notice to property owners. The section, continues: “ Upon due proof of service of such notice, the court to which the application is made shall appoint three disinterested persons, who shall act as commissioners, and who shall, within ten days after their appointment, cause public notice to be given of their first meeting in the manner directed by the court, and may adjourn, from time to time, until all their business is completed. * * * After a public hearing of all parties interested, the commissioners shall determine whether such railroad ought to be constructed and operated and shall make a report thereon, together with the evidence taken, to the General Term, within sixty days after appointment, unless the court, or a judge thereof, for good cause shown, shall extend such time, and their determination that such road ought to be constructed and operated, shall be taken in lieu of the consent of the property owner hereinbefore required.” (§ 94, chap. 565, Laws of 1890.) In fortification of this position of counsel reference is made to Matter of Thirty-fourth Street R R. Co. (102 N. Y. 343), and Matter of Broadway Surface R. R. Co. (34 Hun, 414).

But it seems to us that the petitioner’s application ought not to be granted, for the reason that it has failed to show for the purposes of this motion that it has made an effort to and has failed to obtain the requisite consents of the property owners along Prospect avenue from Huron street to Pennsylvania street. Por aught that appears it has the requisite number of consents for the construction of the road for its entire distance on this avenue. The consent of the city authorities of Buffalo has not been procured to any change of the petitioner’s route. We cannot safely assume that such authorities would have given the consent to construct a surface railroad on this avenue only between Huron street and Carolina street Furthermore, there is nothing in the papers to show that the company has abandoned any part of its right along Prospect avenue, but that, for aught that appears, at the next term of court it may apply for the appointment of commissioners to determine whether a road shall be constructed for two certain other blocks on this route, and so-on until the entire distance is covered through the determination of the commissioners. The statute evidently did not contemplate a dividing up of a street in this manner. The case of Matter of People’s R. R. Co. (112 N. Y. 518), is not in any respect an authority for the contention here made in behalf of the petitioner, for that case merely holds that a surface railroad company, which has had the consent of the city authorities to build its railway through several streets of a city, is not obliged in its application to the court to ask for the appointment of commissioners for the building of a railway throughout all such streets

Counsel lays stress -upon the expression in section 91 of chapter 676 of the Laws of 1892, which is as follows: “ Such railroad shall not be built, extended or operated, unless the consent in writing, acknowledged as are deeds' entitled to be recorded, of the owners of one-half in value of the property bounded on, and also the consent of the local authorities having the control of that portion of a street or highway upon which it is proposed to build or operate such railroad shall have been first obtained.” The expression and also the consent of the local authorities having control of that portion of a street or highway upon which it is proposed to build or operate such railroad,” does not, as it seems quite clear to us, afford any warrant of authority to a surface railroad company thus to divide up its line or route which has been projected through the wholfe or part of a particular street, and which project has received the consent of the municipal authorities.

It follows that the application should be denied.

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

Petitioner’s application for the appointment of three commissioners denied


author: Dwight, P. J.:

text:
    Sylvester J. Ingalls, Respondent, v. Prin Ingersoll, Appellant, Impleaded with Another.

      Foreclosure of a mortgage — want of consideration and, wrongful diversion from the use for which it was executed — scope of cross-examination.

    On the trial of an action for the foreclosure of a mortgage, the only question litigated was one of fact, raised by a. defense that the mortgagor had made the mortgage at the request of the mortgagee without any consideration, to be used by the mortgagee as collateral security for a loan at a bank, but tbat the mortgagee had wrongfully diverted it from that use and sold it to a third party, who sold it to the plaintiff.
    The case was a doubtful one, and the testimony of the mortgagee in contradiction of the mortgagor’s version of the transaction was evasive, and while he categorically denied the facts alleged as a defense on the part of the mortgagor he was unable or unwilling to give any account of the transaction as it actually occurred

      Held, that the case was one from the elucidation of which no available light should have been excluded, and that it was error to exclude, on the ground of not being a proper part of a cross-examination, questions put to the mortgagee on cross-examination which tended to test the honesty of his assignment of the mortgage.
    Appeal, by the defendant, Prin Ingersoll, from a judgment of the Supreme Court, foreclosing a mortgage and directing a sale of tbe mortgaged premises, entered in the office of the clerk of Allegany county on the 2d day of March, 1892, on the report of a referee.

      G. W. Ha/rding, for the appellant.

      J. G. Leggett, for the respondent.
   Dwight, P. J.:

The action was for the foreclosure of a mortgage made by the defendant, Mrs. Ingersoll, to one Russell and assigned to the plaintiff. The defense was want of consideration, the defendant averring that she made the mortgage at the request of the mortgagee, without any consideration, to be used by him at a bank as collateral security for a loan ■ of $200 ; but that the mortgagee wrongfully diverted it from that use and sold it to one John "W. Ingalls who sold it to the plaintiff.

The issue thus joined presented the only question litigated on the trial, and that was purely a question of fact.

On that question the defendant made direct and positive evidence in support of the averments of her answer, by her own testimony and that of her brother, who testified that he was present when the application was made to her for the mortgage. On the part of the plaintiff the only direct evidence was by the testimony of Russell, the mortgagee, and that testimony, we feel bound to say, was of an .extremely unsatisfactory character. On his direct-examination, he testified to no fact whatever, except that Mrs. Ingersoll received $400 in money, for the mortgage, which was paid to her, or as she requested. All the rest of his testimony, on direct-examination, consisted of specific denials of matters testified to by the defendant and her brother. On his cross-examination, counsel for the defendant seems to have made the effort to obtain from this witness his. version of the transaction, but wholly without success. Nearly all. his answers seem to have been evasive. He professed himself unable* to tell where the defendant applied to him for the loan, or what she* said in making the application; where the mortgage was executed, or by whom it was delivered to him; where or when he paid her any part of the consideration, or where he got any part of the money which he paid. He testified that he did not know who wrote the mortgage, but that he did not; nor who wrote the acknowledgment, nor whether both were written by the same person; he afterwards testified that lie wrote the acknowledgment, but he does not know where he wrote it. He testified : “ I do not know whether she (Mrs. Ingersoll) sold the mortgage or not; I think I paid the consideration of the mortgage to her, or the person to whom she sold the mortgage.” The witness was a lawyer, and eighty-three years of age, but these facts do not seem to account for the incoherent, unintelligent and apparently evasive character of his testimony. The referee can hardly have given much weight to his categorical denials of the evidence on the part of the defendant, when he was unable or unwilling to give any account whatever of the transaction as it actually occurred.

The only other evidence on the part of the plaintiff was derived from an admission of her answer that she had made three small payments of interest on the mortgage, and from two letters written by her, when temporarily in Kansas, to John MI Ingalls, who then held the mortgage, and who had.written her demanding payment of the interest, and threatening foreclosure if it was not paid. In the first of the letters she expressed great surprise that the mortgage was in' his hands, but one of them inclosed a draft for sixteen dollar's, and both contain promises of further payments when she returns home. She testifies that she made both payment and promises in the belief that by no other means could she prevent the sale of her property on foreclosure.

It was, probably, the evidence of payment and promises to pay, which induced the report in favor of the plaintiff, and we are not prepared to say that the findings were unwarranted by the evidence ■ as it stood. But we are of the opinion that the referee erred in his .rulings upon one or two questions of evidence which arose upon '.the trial.

On the cross-examination of the witness Russell, who was a party "to the transaction which was the subject of inquiry, and whose examination thus far had been so unproductive of facts, he was asked whether he had ever taken a writing from JolmW. Ingalls in reference to this mortgage. The question was objected to as not a proper part of cross-examination, and the objection was sustained. We think it should have been overruled. Ingalls was Russell’s assignee of the mortgage.' Russell’s title to the mortgage, and his right to •assign it, had been strongly impeached. The court should have availed itself of every means of testing the honesty of this assignment, If Ingalls gave back to his assignor some paper in the nature of a defeasance or providing against an attempt to enforce the mortgage against the mortgagor, or which in any other way bore upon the bona fides of the assignment, the defendant was entitled to elict the fact if possible from the witness. In view of the evasive character of his testimony already given, a very wide scope would have been allowed to his further cross-examination. Another question pointing in the same direction was put to the witness and was disallowed by the court on the same ground as the last. It was, “ Did you tell Mr. John W. Ingalls at the time you let him .have this mortgage, that he must not disturb Mrs. Ingersoll ? ” The ■question was an important one, and if answered in the affirmative would, no doubt, have been followed by questions which would have .■gone far to demonstrate the truth of the case. We think both of The questions discussed were properly part of the cross-examination <of this witness; that the objection thereto was improperly sustained. 'The case was, to say the least, a doubtful one on the question of I act, and one from the elucidation of which no available light should Lave been excluded.

For the erroneous rulings mentioned, the judgment should be reversed and a new trial granted.

Lewis, Macombbe and Haight, JJ., concurred.

Judgment appealed from reversed and a new trial granted, with «costs to abide the final award of costs.'


author: Dwight, P. J.

text:
    The People of the State of New York ex rel. Buffalo, Rochester and Pittsburgh Railway Company, Appellant, v. Manfred Duguid and Others, as Assessors, etc., of the Town of Pavilion, Respondents.

      Certiorari to review an assessment — •failure to arppear before the assessors on review day.

    Appearance Before the assessors on grievance day, as provided by chapter 536 of the Laws of 1857, is not essential, as a jurisdictional fact, to entitle a person to review an assessment by certiorari under chapter 269 of the- Laws cf 1880; the omission of such attendance merely bears upon the question of laches and may be disregarded in a proper case.
    The omission of the agent of a railroad company to appear before the assessors on grievance day, through reliance upon the assurance of one of the assessors, that if the board did not then reduce the company’s assessment, it would adjourn to another day to enable the agent to present his complaint, is excusable and does not constitute such laches as precludes the railroad company from reviewing the assessment by certiorari under the act erf 1880.
    Appeal by the' relator, the Buffalo, Rochester and Pittsburgh Railway Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of Genesee county on the 20th day of September, 1892, dismissing a writ of certiorari.

      ■J. 8. Hocknoell, for the appellant.

      M. H. Peck, Jr., for the respondents.
   Dwight, P. J.

The writ of certiorari under chapter 269 of the Laws of 1880, was procured to be issued on the petition of the relator, to bring up for review the assessment, for the year 1892, of its property situate in the town of Pavilion in Genesee county. The petition alleged that such assessment was illegal and erroneous on several grounds — among others that it was in excess of the just and true value of the property of the relator in said town, and that it was unequal, in that it was made at a higher rate or valuation than the other property borne on the same assessment roll. The court at Special Term declined to consider any of the grounds of error or illegality alleged in the petition, and dismissed the writ on the sole ground tbat tbe petitioner was not entitled to maintain tbe proceeding because it did not appear before the assessors on tbe review day, and make its objections to tbe assessment.

The remedy by certiorari is given by chapter 269 of tbe Laws of 1880 Review and correction by tbe assessors is provided for by chapter 536 of the Laws of 1857. ,The two remedies are, no doubt, concurrent and, so far as appears by tbe terms of tbe later statute, are independent of each other. Application to the assessors on grievance day is not declared to be a condition precedent to the prosecution of the writ; nor is the last-mentioned proceeding in the nature of an appeal from tbe determination in the former, since the latter is heard on new and independent proofs. It is true the decisions of our courts have gone far to establish a rule that the proceeding by certiorari will not be entertained unless relief has been first sought at the hands of the assessors in the mode pointed out by the provisions of the act of 1857 (supra). (People ex rel. W. U. Tel. Co. v. Commrs., 99 N. Y. 254; People ex rel. W. S. R. R. Co. v. Adams, 125 id. 471; The People ex rel. W. U. Tel. Co. v. Dolan, 126 id. 166; Same Case in Supreme Court, 32 N. Y. St. Repr. 603; People ex rel. Hoffman v. Assessors, 24 Week. Dig. 101; People ex rel. Corwin v. Assessors, 64 Hun, 167.)

But in none of these cases was it held that appearance before the assessors Avas a jurisdictional fact in relation to the proceeding by certiorari, or that its omission might not be excused in a proper case. On the contrary Ave think that the force of these decisions is to the effect that the question is one of laohes merely, and that, in this respect, each case must stand on its oavii facts.

The facts of this case bearing upon the question of laohes, as shown by the uncontradicted allegations of the petition, are substantially as folloAvs: The property of the relator in the town of Pavilion, being about eighty acres of land, upon which Avas laid five miles of single track, Avas assessed at the sum of $64,250 ; the tax agent and attorney of the relator, shortly after the completion of the assessment roll, called upon the defendant Duguid, one of the assessors, and complained that the assessment was excessive and unequal; Mr. Duguid said he thought that if the agent would name a day the assessors Avould meet him before review day to consider his complaint; the agent thereupon named the third of August, and wrote each of the other assessors asking them to meet him at the house of Mr. Duguid; on that day he went to the place appointed and there met only the defendant Campbell, one of the assessors; he made known to him the grievance of the petitioner and named a sum to which he suggested the assessment should be reduced, at the same time stating that it would.be impossible for him to be present with the assessors on the appointed grievance day, whereupon Campbell undertook to communicate his complaint and proposition to the board of assessors when met on grievance day, and promised that if they could not then agree to make the reduction asked for, the board would adjourn to a subsequent day, which was named, to enable the agent to meet them and present his complaint; the agent of the petitioner relied upon the promise of the assessor Campbell and, by reason of such reliance, no person was present to represent the petitioner on grievance day. Whereas, neither was any change made in the assessment complained of, nor did the assessors adjourn to any subsequent day to review the same, but it was in all respects finally confirmed so far as the action of the assessors was concerned.

We are unwilling to consent to the proposition that the omission of the relator, under the circumstances thus disclosed, to appear before the assessors on grievance day, constituted such laches as to deprive it of another and concurrent remedy, clearly provided by statute. The assurance given by one of the assessors to the agent of the petitioner can hardly be said to be unofficial, as in the case of People ex rel. West Shore R. R. Co. v. Adams (supra). It was an assurance which the assessor may well have felt authorized to give, not of what would be the decision of the board of assessors, nor even his own, upon the application of the petitioner, but only that if such application were not granted another day should be given on which the agent might be heard in its behalf. The assurance was in entire accord with the letter and spirit of the statute under which the assessors were to act, and which not only empowers the assessors, but makes it their duty; to adjourn from day to day as may be necessary to hear and determine * * * such complaints.”

Under the circumstances of this case we think the agent of the petitioner had a right to rely upon the assurance of a further day, at least so far as that in so doing he was not guilty of such laches as to deprive tbe petitioner of the concurrent remedy of a writ of certiorari.

The order appealed from should be reversed, and the ease remitted to the Special Term with directions to proceed upon the writ.

MacoMbee and Haight, JJ., concurred; Lewis, J., not sitting.

Order appealed from reversed, with costs, and the case remitted to the Special Term to proceed thereon.


text:
    John V. Carr, Appellant, v. Timothy Sullivan and Another, Respondents.

      gale of personal property — failure to conform in quality to an executory contract for its delivery — unconditional acceptance — request for the direction of a verdict, effect thereof.

    After the giving by a vendee, and the acceptance hy the vendor, of an order for the future delivery of a carload of elm lumber of the qualities known as “firsts” and “seconds,” at a certain place, the lumber was delivered to the vendee’s agent at the place designated, and was then reported by the agent to the vendee as not being of the qualities ordered; the vendee, notwithstanding such report, without complaint or notice to the vendor, directed his agent'to sell the lumber, which he did.

      Held, that this was an unconditional and unqualified acceptance of the property and precluded any recovery thereafter, by the vendee, because of the failure of the property to conform to the terms of the executory contract under which it was delivered.
    When counsel for both parties request the court to direct a verdict, all the issues of fact, as well as of law, are to be regarded as submitted to the decision of the court, and no question need be submitted to the jury.
    A request for the direction of a verdict is not, necessarily, a waiver of the right to go to the jury, and when such request of either party has been denied, the party who made it may afterwards insist upon his right to go to the jury, if he makes the claim in time; but it is too late to do so after the direction of a. verdict has been given.
    Appeal by the plaintiff, John V. Carr, from a judgment of the County Court of Erie county, in favor of the defendants, for $280.38, the amount of a counterclaim and costs, entered in the office of the clerk of Erie county on the 2d day of July, 1892, on the verdict of a jury directed by the court, and from an order-denying the plaintiff’s motion for a new trial, on the minutes of the; court,-entered in said clerk’s office-on the same day.

      Hmtzell (& Newton, for the appellant.

      A. G. Galkins, for the respondents.
   Dwight, P. J.:

The action was against the defendants as indorsers, in their firm, name, of a promissory note for $294.59, made July 11, 1891, by “ L. F. Genet Lumber Co.,” payable in three months, to the order of the defendants, for lumber sold by them to the maker, and, indorsed by them for discount at a bank in Buffalo. The note, at. its maturity, was dishonored by the maker and' protested for nonpayment. The defendants then took up the note and shortly after-wards delivered it to the plaintiff on payment by him of the amount, due thereon. The note was said to be lost at the time of the trial,, so that it was not produced in evidence, but, it seems, the indorsement of the defendants was, not erased at the time of its delivery to, the plaintiff. By the plaintiff’s verified complaint it is alleged that, it was indorsed by the defendants at the time of its delivery to him,, but by his testimony on the trial he admits this statement not to be; true.

At this point arises the first .issue between the parties. The theory of the plaintiff’s case is that this was a purchase by him of the note,, as a subsisting obligation against both maker and indorsers; that of' the defendants is that the transaction was a payment of the note by the plaintiff, for the makers, and the evidence on either side tends, to support the theory of each, with a very decided preponderance; in favor of the defendants.

The answer, besides the defense above stated, sets up a counterclaim for the amount of a promissory note of $288, made by the-plaintiff to the defendants, for lumber sold by them to him, dated November 21, 1891, less than a month after the alleged purchase by him of the note set up in this complaint. The plaintiff, by his reply,, admitted the making and delivery of the note set up by the answer, but claimed to recoup thereon damages for the breach of an alleged-warranty by defendants of the quality of the lumber for which the,note was given.

This presented the only remaining issue on the pleadings, and, on the proof, there was clearly no question for the jury. The alleged warranty consisted in the order given by the plaintiff and accepted by the defendants for the future delivery in New York of a carload of elm lumber of the qualities known as “ firsts ” and “ seconds; ” and the evidence of the plaintiff, himself, shows that when the lumber was delivered to his agent in New York, and was reported to him by the agent as not being of the qualities ordered, the plaintiff, nevertheless, without complaint or notice to the defendants, directed his agent to sell the lumber, which he did, and the plaintiff made no communication to the defendants on the subject until by his reply in this action. This was an unconditional and unqualified acceptance of the property, and precluded any recovery thereafter for its failure to conform to the terms of the executory contract 'under which it was delivered. (Reed v. Randall, 29 N. Y. 358; Rust v. Eckler, 41 id. 488; McCormick v. Sarson, 45 id. 265.)

When'the evidence was closed the plaintiff’s counsel requested 'that the court direct a verdict for the plaintiff for the amount of the note declared upon in the complaint, which the court declined to do. Defendants’ counsel then requested the court to direct a verdict in their favor for the amount of the note set up in the answer, less a drawback for freight which was conceded by the defendants, and the court directed such a verdict to be taken. After that direction had been given, counsel for the plaintiff asked to go to the jury on each of the issues above defined severally, which request was denied; the plaintiff excepted, and a verdict for the defendants was taken as previously directed.

It is now a familiar rule when counsel for both parties request the court to direct a verdict, all the issues of fact, as well as of law, ;are to be regarded as submitted to the decision of the court, and no •question need be submitted to the jury. (Dillon v. Cockcroft, 90 N. Y. 649.)

It is true that a request for the direction of a verdict is not necessarily a waiver of the right to go to the jury, but when such request •of either party has been denied, he may afterwards insist upon his right to go to the jury, if he makes the claim in time. It is manifestly too late to do so after the direction of a verdict has been given. The court has then acted upon the submission to it of all tbe questions in tbe case, and it is too late to withdraw the consent to such submission. (Howell v. Wright, 122 N. Y. 667.)

There was no error in the disposition made by the court of questions of fact in this case. Upon the second of the issues presented we have • already held there was no question for the jury. And upon the first we have already intimated our opinion that there was a clear preponderance of evidence in favor of the defendants.

We find no other exception in the case which requires discussion. The judgment and order appealed from should be affirmed.

All concurred.

Judgment and order of County Court of Erie county appealed from affirmed, with costs.