author: Follett, J.: YaN BeüNt, P. J.: O’BRIEN, J.:

text:
    THERESA C. GRAHAM, Appellant, v. JOHN GRAHAM, Respondent.

      Ante-nuptial contract barring dower — consideration for.

    Under the statutes of this State an ante-nuptial contract, entered into for the purpose of barring dower, is not valid or effectual unless supported by some substantial valuable consideration, either an estate in lands or a pecuniary provision, received by or secured to the intended wife; a nominal consideration will not support a contract relinquishing a right to dower.
    The burden resting upon the husband to establish clearly that the wife understood the agreement executed by her, considered by Follett, J.
    Appeal by the plaintiff, Theresa C. Graham, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 6th day of May, 1892, on a decision, rendered at the New York Special Term, dismissing the complaint on the merits, without costs.

      In March, 1890, Theresa Cassidy and John Graham became acquainted; in June of the same year they became engaged, and July 5, 1890, they intermarried, she being a spinster aged forty-two years, and he a widower aged sixty- one years, with children. At the time of the marriage the defendant owned real estate worth $100,000, in which the value of the plaintiff’s inchoate right of dower would have been $8,900. July 3, 1890, a contract was executed between them, under their hands and seals, which was duly acknowledged, and of which the following is a copy:
    • “ This agreement, made and entered into this third day of July, 1890, between John Graham, of the city, county and State of New York, party of the first part, and Theresa Cassidy, of said city, party of the second part,
    “ Witnenseth, That, whereas a marriage is about to be had and solemnized between the said parties, and the said party of the first part is desirous of making provision for a fit and proper settlement to and for the use and benefit of the said Theresa Cassidy, his intended wife. Now, therefore, the said party of the first part doth agree that, if the said marriage shall be had and solemnized as aforesaid, he shall or will, on or before the date of such marriage, or just previous thereto, give, assign, transfer and set over unto the said Theresa Cassidy, the sum of one dollar in cash. To have and to hold the same unto her, the said Theresa Cassidy, to and for her sole and separate use, benefit and behoof forever, and the said Theresa Cassidy, in consideration of the payment to her of the aforesaid sum of one dollar, and in further consideration of love and affection, and willingness to become the wife of the said John Graham, the party of the first part, doth, for herself, her heirs, executors and administrators, covenant and agree, with the said John Graham, that for and in consideration of the premises, that said provision, so made as herein specified, shall be in full satisfaction of her dower in his estate, and shall bar her from claiming the same if she shall survive him after said marriage; and further, if the said marriage shall be had and she shall survive him, that she will not claim any share in his personal estate unless some part thereof shall be given her by his will or act done by him subsequent to the execution of these presents.
    “And the said Theresa Cassidy further covenants and agrees, in consideration of the premises, and of the marriage about to be celebrated betwen her and the said John Graham, in case he, the said John Graham, shall hereafter acquire property, real or personal, by purchase or otherwise, that she will, on request, sign and execute for him, his heirs, executors or administrators, any or all releases of dower or quit-claims in such property, and hereby releases and quit-claims to the said John Graham, and to his heirs, executors or administrators, all and every right, title or interest in and to any of the estate or property of the said John Graham, which he now owns, or which he may hereafter acquire.
    “ In witness whereof the said parties hereto have interchangeably set their hands and seals, with full knowledge of the contract herein, at the city of New York, and on this the third day of July, A. D. 1890.
    “ JOHN GRAHAM. [l. s.]
    “THERESA CASSIDY.” [l. s.]

      “ In presence of
    “ T. MoLeaN Shaw.
    “ Isaiah II. HaNNA.”
    September twenty-two the contract was recorded in the office of the register of the city and county of New York, in Book 1 of Miscellaneous Records. Prior to the execution of this contract, another one had been drawn under the instructions of the defendant, which was the same in all respects, except that it recited a consideration of $5,000 instead of one dollar. The litigants agree that the terms of the contract were not agreed to before the parties met at the office of the defendant’s counsel to execute it. On this occasion the defendant offered the plaintiff $5,000, which she refused to-accept, and the contract was redrafted and a consideration of one dollar substituted, which was not paid.
    About five months after the marriage the parties became estranged, and the defendant conveyed some of his real estate to a daughter. November 28, 1891, this action was brought to have the contract adjudged null and void on the ground that it was procured to be executed by the plaintiff by fraud, and that she signed it without knowing the contents.

      George Bliss, for the appellant.

      James A. Dearing, for the respondent.
   Follett, J.:

Originally tbe word “ jointure ” denoted a joint estate limited to husband and wife for life, or in tail, which was not created for the purpose of barring dower,, but because, prior to the statute of 27 Henry $th, chapter 10, the title to the greater part of the land in England was in the hands of trustees for the use of sundry persons; and as a wife was not dowable of uses, her father or friends, upon the marriage, procured the husband to create a jointure, that there might be a competent provision for the wife after the husband’s death. (1 Cruise’s Dig., tit. 7, Jointure, § 2; Vernon's Case, 4 Rep., 1 B.)

Indeed, if a man, in consideration of a marriage afterwards to be had with a woman, created an estate in jointure, in full satisfaction of all dower which, after marriage, might accrue to her in his lands, and, they intermarried, that was no bar of dower at common law for two reasons: (1.) Because no right could be barred until it accrued. ( 2.) Because no right or title to an estate or freehold could be barred by a collateral satisfaction, so it was found impossible to bar a woman of dower by any assurance of lands either before or during the marriage. (Cruise’s Dig., tit. 7, Jointure, § 1; Vernon's Case, 4 Rep., 1, B.)

"For the prevention of the mischiefs arising out of lands being held for the use of others the statute of 27 Henry 8th, chapter 10 (4 Pick. Stat., 359), known as the Statute of Hses, was passed, which transferred the legal estate of the lands of England to those who were entitled to their use. Thus, all the married women of England would have become dowable in the lands theretofore held to the use of 'their husbands, and, also, would have held the lands settled on them in jointure, but for section 6 of that chapter which provided that women with jointures, then or thereafter, provided should not have dower in the residue of their husband’s estates. By a subsequent clause the wife was empowered to refuse a jointure assured during marriage. ( Vernon's Case, 4 Rep., 2 A., note 1, by Thomas.) The word jointure has now been so extended by the statutes of England and of this State as to include a sole estate limited to the wife alone or a pecuniary provision in lieu of dower. Sections 6 and 9 of chapter 10, 27 Henry 8th, before referred to were enacted almost verbatim in this State in sections 8 and 9 of chapter 4 Laws of 1787 (2 J. & Y., 2), which provisions were continued unchanged until the adoption of the Revised Statutes. (1 R. L., 1801 [K. & R.], 51; 1R. L., 1813, 56.) This statement of the origin of the law of jointure shows, we think, that its central idea was some provision for the benefit of the wife as a consideration for her relinquishment of her right to dower. It will be observed that the decisions of the courts in England and the earlier cases in this State are founded on statutes which are identical. There are two sorts of jointures created by the statutes of this State: (1.) By an ante-nuptial agreement executed by both parties, which prevents the right to dower from ever arising. (2.) A jointure created before marriage but not assented to by the betrothed wife, or created after marriage, which? when accepted in lieu of dower, bars it, but not before. (1 R. S„’ 741, ■§§ 9,10,11 and 12; 1 Cruise’s Dig., chap. 1, § 25.) Section 11 (1 R. S., 741) provides that any pecuniary provision that shall be made for the benefit of an intended wife and in lieu of dower, shall, if assented to by such intended wife, as above provided, be a bar to any right or claim of dower of such wife in all the lands of her husband.” Under the statutes a valid jointure or a pecuniary provision in the nature of a jointure must be supported by some valuable consideration as a compensation for the relinquishment of the right to dower. (McCartee v. Teller, 2 Paige, 511-560 ; Hawley v. James, 5 id., 313-447; Rev. on other points, 16 Wend., 61; Power v. Sheil, 1 Molloy’s Ch., 296; Curry v. Curry, 10 Hun, 366; Ennis v. Ennis, 48 id., 11-14; 4 Kent’s Com., 56, note a, 1; Co. Litt., 36 h, 37 a.)

Some of the authorities go further and hold that an ante-nuptial jointure or provision in lieu of dower must be a fair equivalent for the right relinquished. But we find no case, English or American, which holds that an ante-nuptial contract, entered into for the purpose of barring dower, is effectual unless some provision is made for the intended wife, except in case the intended wife' has property which would on marriage become the husband’s, and the contract provides that neither shall become entitled to any interest in the estate of the other. In some jurisdictions such a consideration is held to be sufficient to support a contract relinquishing dower without any provision being made for the wife. No estate in lands or pecuniary provision having been received by or secured to the plaintiff, the ante-nuptial contract will not bar her claim to dower, under the Revised Statutes, in case she survives her husband.

Is a contract relinquishing the right to dower without any consideration valid and sufficient under the statutes for the protection of married women ? Section 4 of chapter 200 of Laws of 1848, and section 3 of chapter 375 of Laws of 1849, provide: “All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.”

In Curry v. Curry (supra) it was held that the section quoted had no application to contracts creating jointures, or providing pecuniary provisions in lieu of dower, which had previously been authorized and regulated by the Revised Statutes, and we are of the opinion that it was not the intent of the legislature that this section should change these statutes in respect to ante-nuptial contracts relating to dower.

We are also of the opinion that the plaintiff is entitled to a new trial upon the facts. In Kline v. Kline (57 Penn. St. Rep., 120 ; Klime's Estate, 64 id., 122), it was held that persons engaged 'to be married stand in a confidential relation to each' other, demanding the exercise of the utmost good faith on the part of both, and that an ante-nuptial contract executed by the intended wife relinquishing her interest in the estate of her intended husband will not be supported, unless there is a full and free disclosure of all the circumstances bearing upon the contemplated agreement.

These cases were followed in Pierce v. Pierce (71 N. Y., 154), where it was said: “ We are of the opinion that the contract in question cannot be upheld, for the reason that the evidence establishes, beyond any controversy, that it was executed by the respondent, under a belief — which was created by the conduct and declarations of the deceased — that it contained more beneficial provisions in her favor than were contained in the same, and that the deceased,'taking advantage of the confidential relationship existing between him and the respondent, who was the intended wife of the deceased, he was chargeable with fraud and misrepresentation in procuring her signature to the same.

Ante-nuptial contracts, whereby the future wife releases her claim to her right of dower and all other rights to the estate of her husband upon his decease, are fully recognized in law. When fairly made and executed, without fraud or imposition, they will be enforced by the courts. The surrender and release of rights to be acquired by the intended wife by the marriage relation must, however, be regarded with the most rigid scrutiny ; and courts will not enforce contracts of this nature against the wife where the circumstances establish that she had been over-reached and deceived or been induced, by false representations, to enter into a contract which does not express or carry out the real intention of the parties. The relationship of parties who are about to enter into the married state is one of mutual confidence and far different from that of those who are dealing with each other at arms length. This is especially the case on the part of the woman; and it is the duty of each to be frank and unreserved when about to enter into an ante-nuptial contract by a full disclosure of all facts and circumstances which may in any way affect the agreement.”

The plaintiff testified that on Sunday, June twenty-ninth, six days before their marriage, the defendant said: “ If we are going to be married, I think it is necessary that you should see a lawyer. I said, well, I don’t think so. He said, business is business. I said my marriage is not business. I have nothing to see a lawyer about. He said, will you come and see mine, and I said yes, certainly I will. He did not tell me why he wanted me to go and see a lawyer.” They then made an appointment to meet at the corner of Broadway and Fulton street, on Thursday following, at an hour named, and go together and see his lawyer, which appointment was kept, and resulted in the contract under consideration. She testified that its terms were never talked over. The defendant was examined as a witness in his own behalf, and testified: “ I have heard Mrs. Graham’s testimony as to what took place between us prior to our visit to Mr. Shaw’s office. I have to say about that, that I told her I would like to have my real estate matters fixed up; so as I would have no interfering; so as I could use it freely; whatever I would like — sell it, or to buy real estate, and nobody to interfere. I told her that before I went to Mr. Shaw’s office. She said all right. I went to Mr. Shaw’s office, and told him I would like to have such a paper made out, and then, subsequently, I took Miss Cassidy down there.”

The defendant does not testify that the nature of the contract or its effect was explained to the plaintiff, nor that there was any conversation about dower, or the release of all of her interest in his real and personal estate. Tlie attorney wlio drafted tlie contract testified that, after reading the first paper through, she said: “ The paper is all right, with the exception of the $5,000. I will not take any of Mr. Graham’s money. I am not marrying him for money. Mr. Graham said, well, I won’t carry out the ceremony unless you release your dower right in my property. She said, I am willing to, but I don’t want to take any money.”

This is the only evidence that the subject of releasing dower-was. ever the subject of conversation between the parties. Neither the plaintiff nor the defendant testified that such language was used, but if it was, it comes very near being a threat which would be likely to influence a woman on the eve of her intended marriage. Both litigants, the draughtsman of the contract, and the notary who took the acknowledgment, the only persons present when it was formulated and executed, testified that the plaintiff refused to receive $5,000 in cash and execute a contract cutting off her rights in the estate of her intended husband on the ground that the marriage ought not to rest on a pecuniary consideration.

The finding does not seem wholly natural and reasonable that the plaintiff freely, and with a perfect understanding of the intended effect of this contract, executed it without any pecuniary consideration after having absolutely refused to receive $5,000 and execute the first proposed contract. On a retrial the evidence may be of a character that will sustain the burden resting on the defendant to convince the court by the most cogent proofs that the plaintiff fully understood the effect of the agreement, and that it was executed on her part freely and without compulsion; but we are not satisfied that the evidence in this record fully justifies such a conclusion.

The judgment should be reversed both on the law and the facts and a retrial granted, with costs to abide the event.

YaN BeüNt, P. J.:

I am of the opinion that the provision in lieu of dower must be substantial, not merely nominal, in order to bar dower. I concur.

O’BRIEN, J.:

I concur with Mr. Justice Follett in his view of the law. An ante-nuptial contract to bar a woman’s dower should be based on a valuable consideration. The facts in this case show that no adequate compensation was made for the relinquishment of her dower right, and she, therefore, apart from the question of fraud, was entitled to have the agreement set aside.

Judgment reversed both on the law and the facts and a retrial granted, with costs to abide the event.


source: Caselaw Access Project

author: Follbtt, J.:

license: Public Domain

text:
    JOSEPH KEIT, Respondent, v. DAVID WYMAN, Appellant, Impleaded with FREDERICK KELLER.

      Action for damages against two defendants cha/rging conspiracy and the commission of a tort — tort proved against one only — several judgments.

    In an action against several defendants to recover damages, in which it is alleged that the defendants conspired to commit, and did commit, an actionable wrong, which is capable of being perpetrated by the joint act of several or by the independent act of one, a judgment may be recovered against one defendant and in favor of another.
    Hence, where a complaint against two defendants for damages, charged them with having conspired to injure the plaintiff by making and circulating certain defamatory charges against him, and alleged that they publicly made such charges, and the utterance of the charges was proved as to one defendant only:

      Held, that it was proper for the trial court to permit the entry of judgment against such defendant and to dismiss the complaint as to the other.
    Appeal by the defendant, David Wyman, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 13th day of March, 1891, on a verdict in favor of the plaintiff and against said defendant, and from an order denying a motion for a new trial made on the minutes.

      J. Woolsey Shepard, for the appellant.

      Abraham Levy, for the respondent.
   Follbtt, J.:

The complaint charges that the defendants willfully and maliciously conspired together to injure the reputation and business credit of the plaintiff by charging and circulating among his acquaintances and customers that he had cheated and defrauded his former partner, David Wyman, the defendant, and that defendants publicly made such charges. The defendants answered jointly interposing simply a general denial. On the trial witnesses called in behalf of plaintiff testified that the defendant Wyman said that the plaintiff was a fraud and had robbed him. No evidence was given that Kellar had uttered slanders against the plaintiff, and at the close of the plaintiff’s case the complaint was dismissed as against him, with costs, but the court refused to dismiss it as to Wyman. The defendant Wyman also testified that he never made the statement testified to. Whether he did or not was submitted to the jury and they found for the plaintiff, and assessed his damages at $250. The defendant, Wyman, moved at the close of the plaintiff’s case and at the close of the evidence that the complaint be dismissed as to him, on the ground that no conspiracy was proved to have been entered into between the defendants. The motion was denied and the defendant excepted. The defendant insists, on this appeal, that in such an action a verdict cannot be recovered against one of the defendants. At common law an action to recover damages for a conspiracy could be maintained only in two cases. (1.) A conspiracy to indict for treason, and (2), a conspiracy to indict for a capital felony. (Savill v. Roberts, 1 Ld. Ray., 374-379; Jones v. Baker, 7 Cow., 445; Verplanck v. Van Buren, 76 N. Y., 247; 2 Selw. N. P. [13th ed.], 1004; 2 Chit. Pleadings [16th Am. ed.], 493.) In the technical action for a conspiracy above described a recovery could not be had against one defendant. (Savill v. Roberts, supra.)

It is elementary law that in an action brought against several to recover damages for a tort alleged to have been committed by all the defendants, that a judgment may be recovered against one. Conspiring to commit a tort is not actionable, unless a wrong is done and damages ensue. (Savill v. Roberts, supra ; Cotterell v. Jones, 11 C. B., 713; Hutchins v. Hutchins, 7 Hill, 104-107-108; Forsyth v. Edminston, 11 How. Pr., 408; Gardiner v. Pollard, 10 Bosw., 674-688; Verplanck v. Van Buren, 76 N. Y., 247-259; Add. Torts [3d Eng. ed.], 589; 2 Chit. Pleadings [16th Am. ed.], 498.)

In an action in the nature of a conspiracy, brought to recover damages for a tort alleged to have been committed by several in combination, a judgment may be recovered against one. (Skinner v. Gunton, 1 Wm. Saund., 228d; Jones v. Baker, 7 Cow., 445; Gaff. ney v. Colvill, 6 Hill, 567-573; Hutchins v. Hutchins, 7 id., 104; Forsyth v. Edminston, 11 How. Pr., 408; City National Bank v. National Park Bank (32 Hun, 105-111.) In this case the damages were assessed for a tort which was alleged to have been committed by both defendants, but was proved only against one. Hnder the authorities above cited we see no reason to doubt the correctness of the rule laid down by the learned judge at circuit.

The learned counsel for the appellant cites Train v. Taylor (51 Hun, 215) as an authority in support of his proposition that the judgment cannot be maintained against one of the defendants. It was said in the opinion in that case, by way of argument: “ This action seems to have been tried upon the theory that a verdict for the plaintiffs might be sustained against one defendant while another defendant could have a verdict in his favor. And this theory seems to have led to various serious errors in the admission of evidence, which call for a reversal of the judgment. We do not understand that in an action of this character, being an action for conspiracy and nothing else, a verdict can be rendered against one defendant in favor of the plaintiff and another defendant succeed.”

That case, so far as can be ascertained by the report, arose out of the following facts: Kendall Bros., a firm, purchased goods of the plaintiff, for which they failed to pay. The firm was indebted to Taylor. The action was brought against him and the members of the firm, in which it was alleged “ that it was then and there agreed between them (the defendants), that they (Kendall Bros.) should buy goods upon credit from such persons as could be induced to sell them, which said defendants’ firm could not, and did not intend to pay for, and that the firm could sell for cash or promissory notes a part of the goods thus fraudulently obtained, and procure the promissory notes to be discounted, and, with the proceeds thereof, and with the cash to be realized from said sale, and with the remaining portion of the merchandise to be purchased, as aforesaid, should pay in full their indebtedness to Taylor.” It was also alleged that it was a part of the agreement that Taylor should sustain the credit of the firm, and enable it to make purchases on credit, but by what means he agreed to sustain its credit, or what he did for that purpose, is not disclosed by the report of the case. From the reporter’s note, it seems that a verdict was rendered in favor of the Kendalls, and’against Taylor, wbo appealed. It being found that Kendall Bros, bad not defrauded the plaintiffs in the purchase of the goods, Taylor could not be held liable for participating in a fraud which had no existence. It was neither alleged nor shown that Taylor committed any independent wrongful act which damaged the plaintiff, and constituted an actionable tort. The rule laid down, applied to the facts of the case, was sound, but there is no warrant for the assertion that the decision sustains the position that a judgment cannot be recovered against one defendant and in favor of another, in an action brought to recover damages, in which it is alleged that the defendants combined, confederated and conspired to commit, and did commit an actionable wrong which was capable of being perpetrated by the joint act of several, or the independent act of one. There are actionable wrongs which are incapable, from their nature, of being committed by one. A quorum of a board of directors might commit a fraud against the corporation which they represented, which could not be perpetrated by a single trustee, and in such a case a judgment against one could not be sustained. In the case at bar, the damages sustained by the plaintiff arose from a wrongful act which was capable of being committed, and which was committed by Wyman alone, for which lie could_ be held individually liable, though Keller -vyas held not liable. The text writers are not agreed as to whether an action can be maintained against two or more defendants to recover damages for slanders which they have agreed to circulate, and do circulate about a plaintiff (Towns., S. and L. [4th ed.], § 118; Odg., L. and S. [2d Eng. ed.], 420; Folk. Starlde, S. and L. [Wood’s ed.], 434, § 410 ; Stark., S. and L. [3d Eng ed.], 238), and it is not necessary to pass upon this question in this case.

The judgment should be affirmed, with costs.

YaN BeuNt, P. J., and O’BeibN, J., concurred.

Judgment affirmed, with costs.


author: Follett, J.:

text:
    In the Matter of the Arbitration of CHARLES F. BEACH, Jr., Appellant, v. SIMON STERNE, Respondent.

      Arbitration under the Code of Civil Procedure — opinion of an arbitrator distinguished from an award.

    A paper written by an arbitrator, in an arbitration under title 8 of chapter 17 of the Code of Civil Procedure, after the submission of the' controversy for his decision, which is, in matter and form, an opinion and understood by all parties to be intended as an opinion only, and which, although signed by the arbitrator, is not authenticated as required by section 2372 of the Code of Civil Procedure, so that judgment can be entered upon it, is not to be deemed a formal award, so that its delivery to one of the parties will deprive the arbitrator of power to thereafter make an award in due form.
    Appeal by the plaintiff, Charles E. Beach, Jr., from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of Hew York ou the 2d day of November, 1892, upon an order of the Special Term confirming an award in favor of the defendant and ordering judgment thereon.
    May 27, 1892, the parties entered into an arbitration pursuant to title 8 of chapter 17 of the Code of Civil Procedure. The arbitrator took the evidence and heard the arguments offered in behalf of the litigants. Afterwards and on the 19th of July, 1892, he wrote the attorneys for the parties suggesting “ that it might be advisable simply to decide it (the controversy) in favor of one party as against the other without giving any reasons, findings, or indulging in any comments. * * * If both parties insist upon it, I shall give my views in writing upon the various issues.” The attorney for Mr. Sterne replied: “ I shall be entirely satisfied to have the case of Beach v. Sterne decided without opinion.” The counsel for Mr. Beach wrote: “I cannot feel that it would be just to my client, whether the decision is in his favor or against him, if he does not receive from you a full statement of your view of the case, your conclusions as to the facts, and the reasons which have led to your final determination.”
    August third, the arbitrator wrote the attorney for Mr. Beach that he had been out of the city for three or four days, and also stated: “ Prior to my departure I dictated an opinion in the matter of Beach v. Sterne, deciding adversely to your client.” On the same day Mr. Beach’s attorney replied, stating, among other things, “ I have just received your note of to-day; * * * at tbe same time I cannot help feeling that Beach is entitled to the opinion which I felt it my duty to ask you to give. "Will you kindly have your stenographer make a copy of it and inclose it to him (Beach) at his office in the Mills’ Building ? ” On the same day the arbitrator delivered a document to the appellant, which he acknowledged under the date of August eighth as follows:
    “I have received copy of your opinion, dated August 3, 1892, in the above entitled matter. Mr. Turner, who went away on his vacation before the opinion reached us, and who will be absent until about the first of September, asked me to write you for him when the opinion came to hand, acknowledging its receipt, and requesting you to do him the favor to reserve, until his return, our right to ask for a reargument. "We shall, if Mr. Turner, upon consideration, determines that it is proper, make *feuch a motion as soon after he gets back as it is possible to prepare the papers.”
    The document concluded as follows: “Asa result, the Arbitrator decides that Mr. Beach has no claim npon Mr. Sterne, and that the amount stipulated as being due should be paid by Mr. Beach to Mr. Sterne.” This document was signed by the arbitrator, but not acknowledged.
    September 3,1892, the arbitrator signed, sealed and duly acknowledged an award as required by section 2372 of the Code. After-wards the attorneys for Mr. Sterne moved, on notice at Special Term, for an order confirming the award. Mr. Beach, upon an affidavit made by himself setting forth substantially the foregoing facts, opposed the confirmation upon the ground that the powers of the arbitrator ceased upon the delivery of the document, dated August 3, 1892. The award was confirmed at Special Term and a judgment ordered.

      Herbert B. Turner, for the appellant.

      E. Ellery Anderson, for the respondent.
   Follett, J.:

The rule is well settled that when an arbitrator has delivered his award his power is at an end. (Flannery v. Sahagian, 134 N. Y., 85.) The document of August third, signed by the arbitrator, discusses the question of fact involved in the litigation upon the decision of which the rights of the parties turned. It is, in matter and form, an opinion and differs as widely from an award as a judicial opinion does from a formal decision, which is the basis of the judgment to be entered. And it is apparent, from the correspondence between the arbitrator, the attorneys for the parties and Mr. Beach, that all of them understood that it was intended as an opinion. They all speak of it as such, and it was at the request of Mr. Beach and his attorney that a written opinion on the merits was delivered. The opinion was not authenticated in the mode required by section 2372 of the Code, so that a judgment, as provided for in the submission, could be entered upon it. The arbitrator, at the request of the appellant, delayed further action until after the first of September, when his attorney would return to the city and under such circumstances he should not be heard to say that the opinion was a formal award and that the arbitrator was without power to make one in accordance with the statutes. Had the document of August third been intended by the arbitrator to be a final award and delivered to the parties or their attorneys and accepted by them as such, the position of the appellant would be tenable. But it was not so intended by the arbitrator or so understood by counsel, and the judgment entered pursuant to the order of the Special Term should be affirmed, with costs.

YaN BiotNt, P. J., and O’BeieN, J., concurred.

Judgment affirmed, with costs.


author: LawRENce, J.:

text:
    HERMAN KOUNTZE and Others, as Executors, etc., of AUGUSTUS KOUNTZE, Deceased, Plaintiffs, v. FANNIE IDA HELMUTH, Defendant.

      Restrictive covenants running with land — marketable title — change in the character of the locality — waiver of defect in a title.

    A written agreement by the owners, as tenants in common, of tbe lands composing one side of a city block, that they would not erect any buildings, other than dwelling-houses at least two stories high and of brick or stone, or churches of the same materials, on the lands, or any part thereof, etc., and that in all future sales of any of the land by the parties to the agreement the purchasers should be required to come under and be bound by suck restrictions, and that the same should run with the land, and that any party aggrieved by any violation thereof might apply for relief by injunction or otherwise; and a subsequent agreement by the owners of the several lots, then constituting the same entire block front, that the front of any houses to be erected on the lots should be set back on a uniform line of five feet from the street, and that the intervening space should be kept open, and that such covenant should run with the land and be binding on all future owners, and that all deeds, executed by the parties, of any of the lots should be made subject to the conditions of the agreement:

      Held, to constitute incumbrances which, while they were in existence, prevented the conveyance of a good marketable title to one of the lots covered thereby.
    A purchaser of real estate is not bound, under a contract providing for the giving of a general warranty full covenant deed conveying the land in fee simple, to accept title to premises incumbered by restrictions as to the character of buildings 'to be erected thereon and prohibiting the building within a certain distance of the street line, which run with the land and constitute reciprocal easements, and which, in case of their violation, would subject the taker of the title to actions for damages by adjoining owners.
    In an action by the purchaser in a contract for the sale of real estate, against the vendor, to recover damages sustained through the inability of the vendor to give title by reason of restrictive covenants running with the land, it is not open to the defendant to introduce parol evidence for the purpose of showing whether the covenants were beneficial or otherwise.
    Although the fact of a change in the character of the locality in question may induce a court of equity to refuse to specifically enforce a restrictive building covenant, such change does not present an answer to an action at law, which may be brought by one interested in the covenant, for damages sustained by reason of its violation.
    The fact that, after the execution of a contract for the sale and purchase of real estate, the purchaser agreed to sell to the vendor’s husband certain book cases attached to the premises, which the latter commenced to take them down, but stopped when the purchaser suggested and advised that, as the examination of the title had not been completed and the title found satisfactory, the moving of the book cases should be deferred:

      Held, not to constitute an acceptance of the title by the purchaser, or a waiver of any existing defects therein.
    MotioN by the defendant, Fannie Ida Helmnth, for a new trial, on exceptions taken by defendant on a trial at the New York Circuit, and directed to be heard in the first instance at the General Term, after a verdict for the plaintiffs directed by the court.

      George W. Van Slyek, for the plaintiffs.

      L. Laflm Kellogg, for the defendant.
   LawRENce, J.:

On tlie 21st of September, 1888, the plaintiffs’ testator and defendant, entered into an agreement in writing, whereby the defendant agreed to sell to the plaintiffs’ testator, and the latter agreed to purchase, the premises situated on tlie northerly corner of Madison avenue and East Eorty-first street, in the city of New York, for $105,000, $2,000 to be paid on the execution of the agreement and the balance on the taking of the title.

The defendant agreed, on receiving such payment, to execute, acknowledge and deliver to the plaintiffs’ testator a proper deed containing a general warranty and the usually full covenants for the conveying and assuring to him, or his assigns, the fee simple of tlie ,said premises, free from all incumbrance, said deed to be delivered on the 22d of October, 1888, at twelve o’clock m., at the office of J. Romaine Brown & Co., at which time the plaintiffs’ testator was to have possession of said premises.

On examining the title the attorney employed by the plaintiffs’ testator discovered matters' which he alleged to be defects in the title. The time for completion was first extended to the twenty-fourth of October, and, at the request of the defendant, again extended until the 30th of October, 1888, on which day the parties met, and the attorney still deeming the title defective, the purchase-money and a full covenant warranty deed were tendered by the respective parties, and a demand for the return of the $2,000 and the expenses incurred was made of the defendant, which was refused. All further negotiations then ceased.

This action is brought to recover the damages alleged to have been sustained by reason of the inability of the defendant to conyply with the terms of the agreement. The defendant, in her answer, denies that the alleged defects complained of by the plaintiffs, in point of fact, existed; that, if they existed, the plaintiff’s testator had waived them; and also set up as counter-claims, first, that Mr. Kountze took possession of the freehold and sold certain portions thereof by means whereof the defendant sustained damage in the sum of $1,500; and, second, that by reason of the failure of the plaintiffs’ testator to carry out and perform his contract, the defendant was put to loss and damage in removing her property from said premises, and lost tbe rental value thereof, amounting, in all, to the sum of $9,000.

The defects in the title relied upon by the plaintiff are these:

First. That on the 4th of June, 1857, .Margaret Burr, Mary Burr and Sarah Burr being then the owners, as tenants in common, of the lands on the easterly side of Madison avenue, lying between Fortieth and Forty-second streets, entered into a written agreement that they would not erect any buildings, other than dwelling-houses, at least two stories high, of brick or stone, or churches of the same materials on the lands or any part thereof, excepting ordinary yard appurtenances and also no livery stables, slaughter-houses and several other erections and occupations known as nuisances in the law should be made, erected or permitted on said land or any part thereof, and further, that in all future sales, leases or other disposition of any of the land aforesaid by the parties to said agreement, the purchasers, lessees or occupants shall be required to come under and be bound by such restrictions, and that the same shall run with the land, and that any party hereto or person aggrieved by any violation thereof might apply for relief by injunction or otherwise.

Second. The second defect in the title pointed out by the plaintiffs is an agreement between Sarah Burr, R. H. L. Townsend and Edward Livermore, dated October 1, 1866.

The parties to that agreement owned the entire block on the easterly side of Madison avenue, Sarah Burr owning seven lots, Townsend one lot and Livermore having a contract to purchase a portion of the property. By that agreement the parties covenanted and agreed that the front of any houses to be erected on the said lots shall he set back on a uniform line of five feet from the easterly side of Madison avenue, and that the said space of five feet should forever hereafter be kept open for a court-yard and should not be built upon or obstructed by any erection whatever, other than by windows, stoops or entrances, etc. It was further agreed that this covenant should run with the land and be binding on all future owners, and that all deeds executed by the parties of any of the said lots should be made subject to the conditions of the agreement.

Third. The third defect relied on by the plaintiffs is an encroachment, in the rear of the lot, by the wall of an adjoining house so that the lot proposed to be conveyed is only ninety-nine feet eight inches instead of 100 feet in depth.

The learned justice before whom the cause was tried, after refusing to dismiss the complaint or to allow the defendant to go the jury upon certain points submitted, directed a verdict in favor of the plaintiffs and the case comes before us on exceptions to such ruling, and as to the reception or rejection of evidence offered on the trial.

We are of the opinion that the covenants in the two agreements above referred to, constitute incumbrances upon the property contracted to be conveyed and that while in existence the defendant could not convey to the plaintiff’s testator the good marketable title to which he was entitled. (Irving v. Campbell, 121 N. Y., 353; Moore v. Williams, 115 id., 586.)

The covenants in each of the agreements are expressly stated to run with the land, and they constitute reciprocal easements, to which subsequent grantees become entitled^ and by which they are bound. (Lattimer v. Livermore, 72 N. Y., 174; Trustees of Columbia College, etc., v. Lynch, 70 id., 440; Wetmore v. Bruce, 118 id., 322; Huyck v. Andrews, 113 id., 81.)

The plaintiff was, in our opinion, entitled to rely upon his covenants, and it was, therefore, not error for the justice, before whom the cause was tided, to exclude the evidence offered by the defendant for the purpose of showing whether the covenants were beneficial or otherwise.

In Moore v. Williams (115 N. Y., 592), it is said : “M purchaser will not generally be compelled to take a title when there is a defect in the record title which can be cured only by a resort to parol evidence, or when there is an apparent incumbrance which can be removed or defeated only by such evidence.”

The case of the Trustees of Columbia College v. Thacher (87 N. Y., 311), stands upon peculiar facts. In that case, it was held that, in view of the changed character of the Sixth avenue, the court would not, in the exercise of its discretion, sustain an action for the specific enforcement of certain restrictive covenants contained in an agreement between the plaintiffs, and one from whom the defendant, by sundry mesne conveyances, acquired title. But it was not held that one who violated such a covenant would not be liable to an action for damages by an owner of one of the lots referred to in the agreement containing tbe restrictive covenants. (See, also, Amerman v. Deane, 132 N. Y., 355.) There the court refused an injunction after the building which was erected in violation of the covenant had been completed, but it awarded damages. The plaintiff in this action was not bound to take a titlp which would subject him to an action for damages by adjoining owners.

The question put to the witness Pette in relation to the change in the character of the neighborhood was properly excluded because no such defense as it was intended to sustain is pleaded, and, also, because, as already stated, although the fact of such change may indtice a court of equity to refuse to specifically enforce a restrictive covenant, such change does not present an answer to any action at law which might be brought by one interested in the covenant ■for damages sustained by reason of its violation.

The objection to the deficiency in the quantity of the land of four inches in the rear of the lot, where the price to be paid is as large as in this case, is also a grave objection to the marketable quality of the title under consideration, but having determined that the agreements of 1857 and 1866 so seriously affect the title as to justify the plaintiffs in refusing to complete, it is unnecessary to pass definitely upon that question.

The defendant strenuously contends, however, that even if the defects in the title referred to by the plaintiffs, existed, they were waived, and that, therefore, he cannot succeed in this action. In this contention, we think he must fail.

The alleged waiver is based upon the fact that in a conversation with the defendant’s husband on the seventeenth of October, the plaintiffs’ testator agreed to sell to Dr. ITelmuth certain book-cases attached to the premises. On the next day the mechanics under Helmuth’s direction commenced to take them down, but on the morning of the nineteenth the plaintiff’s testator, by letter addressed to defendant’s husband, “suggested and advised” that as the examination of the title had not been fully completed, and the title found satisfactory they should defer the moving of the book-cases.

We are unable on the facts to hold that the conversation which took place between the plaintiff’s testator and the defendant’s husband was an acceptance of the title by the plaintiff’s testator, or a waiver of any existing defects. It is quite clear that the examination bad not then been completed. It seems to have been completed on the nineteenth of October. After that we find that two extensions were granted, the last of which is dated October 24, 1888, by which the time is extended to the thirtieth, and the last memorandum recites that it is granted at the request of Mrs. Helmuth. If there had been a waiver of the alleged defects in the title, or if the plaintiffs’ testator had technically taken possession, by what occurred between him and Dr. Helmuth on thé seventeenth of October, the defendant would hardly have asked an adjournment of the closing of the title. Beyond the transactions in regard to the book-cases there can be no pretense that the plaintiffs’ testator ever exercised any acts of ownership over the premises, or should be even technically regarded as having taken possession of them, and we find nothing in that transaction upon which a waiver can be based. (Bensel v. Gray, 80 N. Y., 517.)

From what has been already said it is apparent that the counterclaims of defendant were properly dismissed. The plaintiffs’ testator had exercised no acts of ownership over the book-cases. He had, in substance, agreed to sell them when the title was found to be good, and his letter, dated October eighteenth, is entirely inconsistent -with the idea that he claimed to be the owner of them.

The plaintiff’s objections to the title having been determined to be good, there was no foundation for the countex’-claim for rent. No error, in our opinion, was committed in refusing to submit the question of waiver to the jury on the evidence before the court. Conceding the facts to be as claimed, there was, as matter of law, no waiver.

The defendant’s exceptions should, therefore, be overruled, and judgment rendered for the plaintiff, with costs.

YaN BbtjNt, P. J., and O’BeieN, J., concurred.

Exceptions overruled and judgment ordered for plaintiff, with costs.


author: O’Brien, J.:

text:
    WILLIAM H. THOMAS and Another, Copartners, as W. H. THOMAS & SON, Appellants, v. HENRY A. DICKINSON and Another, Copartners, as H. A. DICKINSON & CO., Respondents.

      Action for fraud in obtaining goods — commenced before the maturity of a note taken 1 in payment therefor,

    An action to recover the damages resulting from fraud, in obtaining goods by false representations, may be brought before the maturity of a note received in payment therefor in reliance upon the false representations, and the value of the goods so obtained may be recovered as damages for the fraud, if proved, provided it is shown upon the trial that the note has not been paid, and the plaintiff, at the trial, offers to return the note to the defendant.
    ' Appeal by the plaintiffs, William H. Thomas and others, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 22d day of November, 1892, in favor of the defendants, on the dismissal of the complaint at the New York Circuit.

      Q. Walker OUs, for the appellants.

      Franklim, Bien, for the respondents.
   O’Brien, J.:

Upon this appeal questions of law are alone to be considered, bringing up, as it does, for review only the judgment-roll and exceptions. The case contains no evidence, but we must jiresume that there was sufficient to support the findings of fact; and, upon such findings, the questions presented are as to whether the conclusions of law from such facts are right.

The complaint alleges that, in April, 1890, the defendants, with intent to deceive and defraud plaintiffs by inducing the latter to sell them goods on credit, falsely and fraudulently represented to them that they, defendants, were solvent; that the defendant Dickinson was worth $50,000; that the wife of Dickinson had an interest in the business of defendants, and was worth $200,000; and that plaintiffs, relying upon such representations, were induced to deliver to tbe defendants on credit merchandise of the value of $1,696.82; that said representations were false, to the knowledge of the defendants, and were relied on by the plaintiffs to their damage, $1,696.82.

The answer alleged that the merchandise was sold on a credit, which had not expired at the commencement of the action. In support of such defense it appeared upon the trial that the goods were sold on a credit of four months from April 28,1890, for which defendants gave the plaintiffs their promissory note, which was due August 31, 1890.

This action was begun July 31, 1890, and, with the exception of the single allegation that Mrs. Dickinson was not worth $200,000, the trial judge found all the foregoing facts in plaintiffs’ favor. And, in addition, he found that the promissory note, being in possession of the plaintiffs, was, subsequent to the commencement of the action, tendered back to the defendants, which the latter refused to receive, and that upon the trial the plaintiffs again tendered back the promissory note and met with a,like refusal. Notwithstanding, a judgment was ordered for the defendants upon the ground that the plaintiffs, at the time of the commencement of the action, had suffered no damage from false representations, because the note had not then matured.

Upon the former appeal in this case, taken from a judgment upon a verdict directed in favor of the plaintiffs, and in which the facts were, that the offer to return the note had not been made either before or at the time of trial, the judgment was, on this ground, reversed for the reasons stated in the opinion of this court, to be found in the Law Journal of September 21, 1892. (47 N. Y. St. Rep., 209.) As therein said: “A person defrauded by another may resort to one of three remedies. First. He may, before suing, restore or offer to restore what he has received from the other party, elect to rescind the contract and sue at law for whatever he has parted with ; or he may, secondly, without restoring or offering to restore what he has received, sue in equity for a rescission, in which case he must allege in his complaint his willingness to restore, as a condition for being permitted to rescind, and must, in fact, restore or offer to restore before or at the trial; or he may, in the third place, stand upon the contract, making no offer to rescind it, and sue for the damages which he has suffered by the fraud of the other party in inducing him to enter into tbe contract. And this latter remedy is that which the plaintiff claims to have pursued.

“ But the difficulty with the plaintiff’s case is that until it is ascertained whether or not the note in question, which has been given in payment of the goods, will be paid, it cannot be ascertained as to whether the plaintiff has or will suffer any damage by reason of the alleged false representations. And the further principle is lost, sight of that the holder of the note is the only one who can enforce any liability against the defendants. If the plaintiffs have transferred the note and it is in the hands of a third person, they certainly have sustained no damage by reason of the false representations.. If any cause of action exists, it is in favor of the holder of the note and not the plaintiffs, unless they are such holders. And it is. because of this principle that the rule has obtained that no matter what the action is, whether for rescission of the contract or for damages, because of the fraud of the other party in inducing them to enter into the contract, if a note has been given, it must be returned as the defendants are not required to pay damages for the fraud and pay the debt also.”

Other language is used in the opinion relating to plaintiffs’ right to maintain an. action of this kind, in effect holding that until it was ascertained whether the note in question would be paid or not the defendants would be under no liability to the plaintiffs for damages to the full extent of the debt for the fraud.

It will thus be seen that the reversal of the former judgment was placed distinctly upon the ground that a note had been given for the goods purchased of the plaintiffs, which, so far as it was made to appear, might have been transferred by the plaintiffs to a third party and upon which the defendants might have been liable, though they should pay the judgment, which included the full value of the goods delivered. That the defendants should not be subjected to this double liability was, therefore, correctly determined by this court upon the former appeal.

Upon the retrial, though it then appeared that the note, which at maturity had not been paid, was still in the possession of the plaintiffs and was tendered back, this was regarded by the trial judge as not controlling, and, upon the ground that the action was commenced before the maturity of the note, the complaint was dismissed.

■ It may be that sentences in the opinion 'on the former appeal, disconnected from the context, might give the impression that the action was prematurely brought, and, therefore, that no recovery could be had. But it must be remembered that, in saying that “ the former action could not be maintained,” the language of this court, as shown by the context, was applied to the theory upon which the action was formerly tried, and which, upon the facts then appearing, resulted in a verdict for the full amount in plaintiffs’ favor, notwithstanding the existence of an outstanding note which had not been tendered back, and upon which the defendants would be liable.

The question now presented is: "Was this action1 prematurely brought, or was it essential for the maintenance of the action that the plaintiffs should have waited until the maturity of the note %

This is to be determined by consideration of what plaintiffs’ right of action was, and when it accrued, without regard for the present to the question of damages. The fraud was committed when the defendants upon false representations obtained the plaintiffs’ goods in April, 1890, and, we think, that the plaintiffs’ cause of action then accrued. It is true’ that a note had been given, upon which the defendants were liable, and until the maturity of the note the plaintiffs could not, in any event, have recovered more than nominal damages. The question whether they should have recovered more than nominal damages would necessarily depend upon the evidence presented on the trial. This is illustrated by what occurred upon the first trial of this case where, it appearing 'that the note was outstanding, a direction in plaintiffs’ favor for the full amount of the goods delivered was properly reversed; or, to take another illustration, let us assume that a four months’ open credit had been given, not evidenced by any note or writing, would the right to maintain the action for fraud be premature if brought before the expiration of the credit ? We think, under all the authorities, that such a view cannot prevail, for it must be kept in mind that the cause of action is for the fraud, and it arose immediately upon the perpetration thereof, and that the cause of action itself for the fraud is something separate and distinct from the amount of damages that may be recovered by reason thereof.

It is true, tliat the old rule at common law would only permit damages wbicli bad accrued at tbe time of tbe commencement .of tbe action; and if tbis rule still prevailed, upon tlie remedy elected by plaintiffs, tbe note not being due at tlie time of tbe commencement of tlie action, tbe fact tliat subsequently it was not paid, or an offer to return it upon tbe trial, could not be used to enhance damages. Tbis rule, liowever, no longer prevails either in England or in tbis State. In an early case in tbe United States Supreme Court, which was an action brought against an attorney for neglect, it was held: "When the attorney was chargeable with negligence, his contract was violated, and the action might have been sustained immediately. Perhaps, in that event, no more than nominal damages may be proved, and no more recovered; but, on the other hand, it is perfectly clear that the proof of actual damages may extend to facts that occur and grow out of the injury, even up to the day of the verdict. (Wilcox v. Plummer, 4 Peters [U. S.], 172, 180; see, also, Sedgewick on damages [ed. 1891], § 85.)

In Everson v. Powers (89 N.Y., 527), wbicli was an action brought by an employee for damages for his wrongful discharge, wherein the point was made that the plaintiff could recover only damages wbicli had accrued at the commencement of the action, the court said: “ The plaintiff’s cause of action arose at the time of the breach of the contract, and be was then entitled to sue and recover such actual damages as the evidence upon tbe trial showed lie bad sustained by the defendant’s breach. It is the breach, and not the time of complaining of it, which gives the damage.”

And in Behrman v. Linde (23 N. Y. St. Rep., 490), which was an action for breach of contract, the presiding justice of this court, writing tbe opinion, says: “ It was further claimed that tbe plaintiffs could not recover damages that had not been sustained at the time of the commencement of this action. It is clear that this objection is not well taken. The contract, having been broken at the time of the commencement of tlie action, the plaintiffs had a right to recover all the damages which they had sustained up to the time of trial.”

So with respect to the fraud here, upon its perpetration and tbe receipt of tbe plaintiffs’ projierty as the result thereof, a cause of action, at least for nominal damages arose, and tbis right was not impaired or destroyed by the plaintiffs’ taking, under the facts here appearing, the note of the defendants, because it was found as a fact that, relying upon the false representations, they were induced to receive the note from the defendants. The credit extended, as evidenced by the note, was, therefore, abrogated. And while it is true that as long as the note was outstanding, and before it was returned to the defendants, no recovery for the value of the goods could be had in an action such as this, still, where, as here, upon the trial proof was offered showing that subsequent to the commencement of the action the note was not paid and was offered to be returned upon the trial, we think that this entitled the plaintiffs to recover as damages for the fraud the value of the goods obtained by the defendants.

Our decision upon the former appeal was placed upon the ground that no recovery for value of the goods thus obtained could be had without producing and tendering back the note upon or before the trial, and a reading of the opinion will show that our attention was directed against allowing a recovery for the value of the goods, and permitting an outstanding liability upon the note to exist at the same time, upon which latter, if the former judgment were paid, the defendants would have been liable.

We think, however, that where, as here, it has been found that the defendants were guilty of fraud in obtaining the property of the plaintiffs, although they accepted a note therefor, they were entitled to maintain the action for the fraud, their right of action having accrued immediately upon the discovery of such fraud, and that when upon the trial they tendered back the note they were •entitled to recover as damages the value of the property obtained from them.

For these reasons we are of opinion that the conclusion reached by the learned trial judge upon the facts found by him was erroneous, and that the judgment appealed from should be reversed and a new trial ordered, with costs and disbursements to plaintiffs to abide the event.

VAN BRUNT, P. J., and Follett, J., concurred.

Judgment reversed and new trial ordered, with costs and disbursements to plaintiffs to abide event.


author: PatteesoN, J.: VAN Brunt, P. J.:

text:
    THE UNITED STATES VINEGAR COMPANY, Plaintiff, v. JOHN SCHLEGEL, Defendant.

      Action by a corporation to recover a subscription to its ca/pital stock — defense, that the purpose of the incorporation was illegal —forfeiture of franchises by a foreign-corporation.

    In an action brought by a corporation, organized for a legal purpose, to recover the amount of a subscription to its capital stock, it is not competent for a subscriber to the stock to show, by way of defense, that it was orally agreed between the promotors that it was to be organized for another, a different and an illegal purpose, and thus relieve himself from his contract and agreement to pay his subscription.
    Where there is no vice in the organization of a corporation of another State, the question of its having forfeited its franchises, because of the violation of the laws of the State in which it was organized, is one for the authorities of that State to determine, and cannot be disposed of in an action in the State of New York brought to enforce a stockholder’s liability.
    MotioN by the defendant, John Schlegel, for a new trial on exceptions ordered to be heard in the first instance at General Term, after a trial at the New York Circuit, on the 20th day of November, 1891, where a verdict was rendered in favor of the plaintiff for $2,119.50, and the exceptions were ordered to be heard at the General Term in the first instance.

      Ten Eyck ds Remington, for the plaintiff.

      Benno Loewy, for the defendant.
   PatteesoN, J.:

This action is brought to enforce against a subscriber to shares of the capital stock of the plaintiff, an unpaid balance of his subscription. The complaint sets forth that the plaintiff is a corporation, duly incorporated under the laws of the State of Illinois, to buy, sell, deal in and handle vinegar; and that in contemplation of its-incorporation the defendant and others subscribed to its capital stock and agreed to pay the amounts of their several subscriptions, and that the defendant, at the time of his subscription, paid a certain sum on account thereof. It is further alleged in the complaint that, since the incorporation of -the plaintiff, it has incurred debts to-various persons, and bas no assets, except such as consist of unpaid subscriptions to its capital stock. The answer of the defendant puts in issue the due incorporation of the plaintiff. That may at once be disposed of by saying that such incorporation was sufficiently proven by the documentary evidence appearing in the record before us. The answer contains affirmative defenses which may be summed up as follows, viz.: That the plaintiff corporation was formed solely for the purpose of controlling and limiting the production of vinegar throughout the United States, and that it was intended to be a combination of all vinegar manufacturers and dealers to control and enhance the price of vinegar in the United States, and that the promoters of the plaintiff and its officers represented to all subscribers, including the defendant, that such was the purpose of the projected and completed corporation; that the defendant’s subscription was based on such representations; that the plaintiff attempted to carry out that purpose after its incorporation and did, to some extent, carry it out by compelling all its shareholders or members to sign agreements fixing the prices at which they should sell vinegar, and also limiting the amount of the product of each manufacturer who should become a shareholder in the corporation, and that, from time to time, prices were raised in such a way as to prevent competition by those who were not stockholders or members of the plaintiff corporation by forbidding its shareholders to sell to those who were not connected with the plaintiff; that if the plaintiff was incorporated for legitimate business purposes it was without the authority, consent or knowledge of the defendant, and with the intent to impose upon and deceive the authorities of the State of Illinois, and for the purpose of evading the statutes of that State; that all the moneys expended and contracts made were in furtherance of unlawful schemes and conspiracies, and that the defendant was induced to subscribe to shares of the plaintiff’s stock by reason of false representations made to him of the object of the corporation and of the persons or corj>orations who were to become interested in it as shareholders.

So much has recently been written on the subject of monopolies and so-called commercial trusts that in the disposition of this ease we have felt constrained to confine ourselves to the decision of the questions actually before us, without attempting to add to the vast mass of judicial literature, more or less instructive, existing on those subjects. The case, as we find it on the record, is that various persons interested or engaged in the business of manufacturing and selling vinegar conceived a scheme for uniting in one corporation certain persons and corporations engaged in the same business. That is stating the case as broadly as the defendant claims. A prospectus was issued and manufacturers and dealers were invited to become members of that corporation. In that prospectus it was stated that “the purpose of the company shall be to ,buy and sell vinegar with a view of regulating the production, lessening the cost of selling, of ecpializing the distribution of the surplus in accordance with the demands of the various sections of the country — thereby limiting the cost of reaching the consumer and benefiting both the producer and consumer.” That was the expressed purpose of the intended corporation. The details of the method by which that purpose was to be effectuated are somewhat intricate, but they may be stated briefly as follows, viz.: Each vinegar manufacturer was to be at liberty to subscribe to capital stock in the same proportion that his product bore to the aggregate product of all vinegar manufacturers who should become shareholders in the plaintiff corporation ; after all manufacturers had been afforded an opportunity to take stock the balance untaken might be subscribed for by any person. It was then stated in the prospectus that the plaintiff corporation should agree to buy from each manufacturer during the year ending December 1, 1887, Ais entire product of vinegar, provided, however, that such product should not exceed the amount manufactured by him during the preceding year; but each manufacturer was also to stipulate that during the term of an agreement of the character mentioned he would not increase his capacity to produce over the amount of his production for the year 1886 nor manufacture more than the plaintiff should contract for with him, and then the plaintiff would appoint such manufacturer an agent to sell under certain terms and pi’ices to be regulated.

It was upon this prospectus and certain representations and statements of promoter of the company that the defendant says he was Induced to subscribe to the shares of the plaintiff. There are certain dates which should be kept in mind. klr. Schlegel swears the prospectus above mentioned was read at a meeting of vinegar manu-facturera beld at the Linwood House, on April fi, 1887. We will assume, therefore, that he made his subscription to stock at or about that date. But it appears in evidence that on the 7th day of March, 1887, application was made to the secretary of State of the State of Illinois, for a charter for the plaintiff: that a license was issued to commissioners and that on the 16th day of March, 1887, the commissioners reported to the secretary of State their purpose to form a corporation, the object of which is to buy, sell, deal in and handle vinegar.” Subsequently, and on the 2d day of May, 1887, the plaintiff was incorporated, and, in express words, for that purpose and no other. It was intermediate those dates that the defendant made his subscription.

There is nothing in the record to show what the law of the State of Illinois is as to the relations of a shareholder to a corporation when he is sued on a subscription to stock, but it is clear that under the law of this State the defendant cannot rely upon a mere prospectus or on the representations of promoters to defeat his liability unless such prospectus or representations have, after the incorporation, been adopted by the corporation and the business conducted in accordance therewith, (Munson v. S. G. and C. R. R. Co., 103 N. Y., 58.) The promoters of a corporation are not the corporation. They cannot contract for or bind it in advance. To quote the language of Judge Bedfield (1 Bed. onBailways [6th ed.], 9) “ the promoters are in no sense identical with'the corporation, nor do they represent it in any relation of agency.” This defendant could not rely upon the prospectus or on representations of promoters, for, at the very time those representations are said to have been made, there was a pending application in Illinois for the incorporation of a company, the business objects of which were perfectly legitimate, and it was to shares in that company that he subscribed. But wé may go a step further in this case and test the liability of the defendant by the strictest rules applying to monopolies or combinations in restraint of trade or organizations to prevent competition. Taking the prospectus and the certificate of organization or charter of the plaintiff together, we find no such unlawful intent or purpose in them as would prevent the enforcement of the defendant’s liability'- on his subscription. The prospectus shadows forth a lawful enterprise, not one to create a monopoly, but one to protect shareholders against ruinous competition. That is not only the professed, but it may be said to be the apparent purpose. The corporation was organized for a legitimate business. That appears from the terms of the charter. If afterwards unlawful contracts were made and the corporation exceeded or abused its chartered powers or privileges it became a subject for the intervention of the State to revoke that charter, or for suit by a shareholder to enjoin acts of the corporation ultra, vires. We think the direction of a verdict was right, and that.the exceptions must be overruled and judgment entered for the plaintiff, with costs.

O’Brien, J., concurred.

VAN Brunt, P. J.:

There being no vice in the organization of the company, and it having been for legal purposes, the question of its having forfeited its franchises because of the violation of the laws of the State of organization is one for the authorities of that State to determine, and cannot be disposed of in an action in this State brought to enforce a stockholder’s liability. I, therefore, concur.

Exceptions overruled and judgment ordered for the plaintiff, with costs.


author: VaN BeuNt, P. J.:

text:
    In the Matter of the Voluntary Dissolution of the DAVID JONES COMPANY. AUGUSTUS T. DOCHARTY and Another, Petitioners, Appellants, PATRICK KIERNAN and Others, Respondents.

      Manufaciwing corporation — restrictions on stock transfers — absence of a by-law regulating the election of trustees — voluntary dissolution.

    A by-law of a stock corporation, organized under the manufacturing corporation act of 1848, restricted the transfer of stock by requiring that any holder of an original stock certificate who desired to transfer stock thereunder must give an opportunity, in a prescribed manner, to all other holders of original stock certificates to purchase the stock at a valuation to be fixed by the trustees semiannually before a certificate capable of unrestricted transfer would be issued.

      Held (without expressing any opinion as to the validity of such by-law), that when the conditions of the by-law had been complied with, and a certificate relieved of restrictions had been issued accordingly, the transferee of such new certificate became, on its transfer, a stockholder in the corporation.

      Under the provisions oí the general stock corporation law (Laws of 1893, chap. 687) if a corporation has no by-law regulating elections of trustees or directors (for the reason, e, g., that such a by-law has not 'been published as required by the statute [§ 11, sub. 6]), a valid election of trustees may be had, by force of sections 23 and 24, on the call of any member of the corporation, published and noticed as prescribed.
    Newly elected directors of a manufacturing stock corporation have a right to stop voluntary proceedings for the dissolution of the corporation which have been initiated by their predecessors in office.
    Appeal by tlie petitioners, Augustus T. Docharty and John Xeenan, from that part of an order, made at the New York Special Term, entered in the office of the clerk of the city and county of New York on the 17th day of October, 1892, setting aside an order ■directing all persons interested in the David Jones Company, a stock corporation organized under the manufacturing corporation act of 1848, to show cause why the corporation should not be dissolved, which
    “ Ordered, That the said motion be and the same hereby is granted, with ten dollars costs, to be paid by the said Docharty and Euernan, and the order entered herein on the 3d day of June, 1892, is hereby vacated and set aside.”

      0. F. Wells, for the appellants.

      D. Gerber, for the respondents.
   VaN BeuNt, P. J.:

The David Jones Company was organized in 1884. It is alleged, upon the part of the appellants, that a resolution was duly passed, at a meeting of the board of trustees, on the 28th of May, 1892, directing the secretary to take the steps necessary to procure a dissolution of the company, and in pursuance of that direction the petitioners, two of the three trustees, on the 3d of June, 1892, obtained the order to show cause, which was vacated and set aside by the order appealed from. On the 4th of August, 1892, two months after the making of the order to show cause, the remaining trustee and holder of the majority of the stock of the corporation transferred 800 shares of the capital stock to his attorneys; and thereupon a special meeting of the stockholders was called by the said trustee, and on the 29th of August, 1892, the said trustee, and the persons to whom the stock was transferred were elected trustees, and such trustees passed, on the 8th of September, 1892, resolutions opposing the proceedings already taken for the voluntary dissolution of the company, and thereupon the motion was made to vacate the order to show cause above referred to, and for a dismissal of the present proceedings. This motion were granted; and from that order this appeal is taken.

ít is urged, upon the part of the appellants, that the transfer of stock to the attorneys of the third and dissenting trustees was illegal, and did not, in fact, confer upon them (the transferees) the powers of legal stockholders, and that the call for the special meeting of stockholders was insufficient, because, although the call for the special meeting was issued under the provisions of the by-laws regulating elections, and the meeting purported to be held in conformity with the same, the by-laws were absolutely void by statute.

The grounds upon which it is urged that the transferees of the stock of the third trustee did not become legal stockholders, is because of the provisions of a by-law of the company restricting the transfer of original certificates of stock.

This by-law provides that: Whenever the holder or holders of one or more of such first or original certificates of stock shall he desirous of transferring all or any of the shares of stock represented by such certificate or certificates, he or they shall give notice thereof, in writing, to the secretary. It shall be the duty of the secretary, upon recéiving any such notice, forthwith to give written notice thereof to the board of trustees, and to the holders of all other first or original certificates of stock as they appear upon the books of the company. The holder or holders of such first or original shares of stock, who are desirous of purchasing the shares offered for transfer, may bid for, or propose to purchase all or any of the shares offered for transfer at a price specified in the resolution to be passed at the first meeting in the months of July and January, respectively, fixing the optional price for the half year next succeeding such meeting.”

The by-law further provides that: “ In case all bids or proposals made are for less than the apparent real value of the stock, the board of trustees shall cause a certificate to be made that the holder or holders desiring to transfer the stock have complied with article 7 of the by-laws, and such holder or holders shall be at liberty to have such stock transferred to anyone who will take the same.”

It appears that on the 6th of April, 1889, the said third trustee gave the notice required by the by-law, and such proceedings were thereupon had that a certificate was given on the 13th of May, 1889, by the secretary of the corporation that such trustee had complied with the provisions of the by-laws and was at liberty to have his stock transferred to anyone who would take the same; and thereupon, on the 1st of July, 1889, a new certificate of stock was issued to said trustee which contained no restrictions whatever upon its transfer.

Under these circumstances it is clear, even if such by-law could be enforced, that there had been a compliance with its terms; and that the transferees of said trustee became stockholders, the stock being relieved from the restriction of the by-law. But it is not to be considered that the court in any way expresses an opinion upon the validity of a by-law thus restricting the transfer of stock.

The next point presented is, that the special meeting was irregular, although called in pursuance of the by-law, because the by-law had never been published pursuant to the requirements of the statute. Subdivision 5 of section 11 of the general corporation law, chapter 687 of the Laws of 1892 (which is substantially the re-enactment of an old statute which has been in force since prior to the Revised Statutes, 1 R. S., 603, 604, § 6) provides that no by-law regulating the election of directors or officers shall be valid unless published for at least two weeks in a newspaper in the county where the election is to be held, and, at least, thirty days before such election. And the question is presented, whether the corporation can hold an election for trustees where there is no by-law regulating the same.

Upon an examination of sections 23 and 24 of chapter 687 of the Laws of 1892 it will appear that the omission to frame a by-law regulating the holding of elections in no way impairs the right or obligations upon the part of the directors or members of a corporation to provide for such election.

Section 23 provides that if the directors shall not be elected on the day designated in the by-laws (the law under which the corporation was organized determines how often the directors shall be elected), the corporation shall nót, for that reason, be dissolved, but every director shall continue to hold his office and discharge his duties until his successor has been appointed. And by section 24 it is pro-vicled that if the election has not been held on the day so designated the directors shall forthwith call a meeting of the members of the corporation for the purpose of electing directors, of which meeting notice shall be given in the same manner as of the annual meeting for the election of directors; and, if such meeting shall not be called within one month after the failure to elect directors, any member of the corporation may call a meeting for the purpose of electing directors by publishing notice of the time and place of holding such meeting at least once in each week for' two successive weeks immediately preceding the election, in a newspaper published in the county where the election is to be held, and in such manner as may be prescribed by the by-laws for the publication of notice of the annual meeting and by serving upon each member, either personally or by mail, a copy of such notice at least two weeks before the meeting.

These requirements of the statute were complied with. The notice was published for two weeks and the other stockholders were personally served with notice of the election. There being no by-laws, as claimed upon the part of the appellants, of course, there were no provisions of the by-laws to comply with. And certainly it cannot be claimed that where a majority of the board of directors refuse to pass a by-law regulating the time and place of an election they never can be deposed from office, and thus the statute requiring an annual election of the trustees of such a corporation rendered entirely nugatory.

"We see no reason for interfering with the order appealed from. The new directors had the same right to stop the proceedings for the dissolution of the corporation that the old directors had to initiate them.

The order should be affirmed, with costs.

O’BeibN and Follett, JJ., concurred.

Order affirmed, with costs.


author: YaN BbüNt, P. J.:

text:
    STEVENS VOISIN, Appellant, v. THE COMMERCIAL MUTUAL INSURANCE COMPANY, Respondent.

      Marine insurance — seaworthiness — admission as to the genuineness of a paper — effect of, on a new trial — evidence —papers referred to to refresh a witness’ memory.

    Very slight evidence in respect to seaworthiness is sufficient to make out & prima, facie case upon that issue in an action for marine insurance.
    The fact that a vessel built mostly of spruce has been left upwards of six months in the waters of the Gulf of Mexico, unprotected by copper and fully exposed to the action of worms, cannot be deemed of itself evidence tending to establish the vessel’s unseaworthiness.
    Evidence unexplained that a vessel sprung a leak and had to be abandoned at sea, although no heavy weather had been encountered, may justify a jury in finding that at the time the vessel left port she was not seaworthy.
    There is no presumption, arising from the common experience that sea captains frequently bore holes in derelicts for the purpose of getting them out of the way, that will warrant a trial court in rejecting, as incompetent on that ground, evidence that, after a vessel had been abandoned, she was subsequently picked up at sea with a large number of augur holes found in her, offered in order to show the reason why the vessel had filled with water when there had been no cause therefor known to her officers.
    The admission by counsel, upon a trial, of the genuineness of a paper offered by the other side, entered upon the minutes, is, unless specially restricted to be deemed an admission in the case, on which, without at least some notice of its withdrawal, the counsel for the party offering the paper has a right to rely upon any subsequent trial upon which he will then be entitled to read the paper in evidence, if it were competent, had it been proved.
    One element necessary to make a paper, referred to by a witness for the purpose of refreshing his memory, competent evidence of itself, is testimony on the part of the witness that after reference to the paper he is unable to recollect the facts therein contained.
    Appeal by tlie plaintiff, Stevens Yoisin, from a judgment of tbe Supreme Court, entered in the office of the clerk of the city and county of New York on the 23d day of May, 1892, in favor of the defendant, on a dismissal of the complaint, at the close of the plaintiff’s evidence, on the trial at the New York Circuit of an action upon a policy of marine insurance issued by the defendant upon merchandise on the bark, “ L. E. Cann,” for a voyage from Tecolutla, Mexico, to New York.

      F. R. Ooudert, for the appellant.

      T. Cleveland, for the respondent.
   YaN BbüNt, P. J.:

This action has previously been tried, and a verdict having been rendered by the jury in favor of the plaintiff, the judgment entered upon such verdict was reversed by the General Term for errors committed upon that trial.

Upon the retrial of the case, at the conclusion of the testimony of the plaintiff, a motion was made to dismiss the complaint upon the ground: First. That no cause of action' had been proved. Second. That there was no proof of the performance of the condition of the policy requiring proof of loss and interest to be made before the loss is payable. Third. That there was no proof of the seaworthiness of the vessel sufficient to go to the jury. Fourth. That there was no proof of the shipment of the cargo insured sufficient to go to the jury. Fifth. That there was no proof of any such interest in the plaintiff as would enable him to maintain the action for his own benefit; and, Sixth. That there was a defect of parties, in that a partner of the plaintiff was not joined with the plaintiff.

Upon the previous appeal, some of these questions were determined ; and the condition of the evidence in respect thereto has in no wise been varied, and it is, therefore, not necessary, upon the decision of this appeal, to rediscuss the questions whipli were then disposed of. It was then held, in resjtect to the second, fifth and sixth grounds taken upon the motion to dismiss, that they were not well taken. And hence the only questions now presented are that no cause of action has been proved, and that there was no proof of the seaworthiness of the vessel, nor of the shipment of the cargo insured, sufficient to go to the jury.

It is undoubtedly the rule that very slight evidence in respect to seaworthiness is sufficient to make out a jyrmiafacie case upon that issue. And this is necessarily the case from the fact that distinct, positive and clear evidence upon this point is frequently inaccessible, particularly after the loss of a vessel at sea.

Upon the part of the plaintiff, the evidence of the second mate of the vessel was offered, tending to show that she had made a voyage from Cardiff to Yera Cruz heavily laden with railroad iron, and that she did not leak more than ordinary vessels during that voyage.

It is true he testified that she required to be pumped every four hours in good weather, and every two hours in heavy weather, but tbe witness testified that she did not leak more than vessels ordinarily do. She arrived at Yera Cruz in September and lay there until January. From Yera Cruz she went to Tecolutla, where she lay about two months, and finally left there about the end of March. The policy in question is dated the tenth of March, and it is urged that this vessel, built mostly of spruce, had been left upwards of six months in the waters of the Gulf of Mexico unprotected by copper and fully exposed to the action of worms, and that, therefore, there was plainly no proof of seaworthiness. But we are unable to determine, in the absence of evidence, whether any such conditions would be apt to affect the seaworthiness of this vessel or not. The evidence is that she had made a voyage heavily laden and was no more affected by wind and waves than vessels ordinarily are, from which fact the reference might be drawn that she was in a fair condition to prosecute an ocean voyage. Now, whether her lying in the waters of the Gulf of Mexico would naturally tend to affect her seaworthiness was a question which had to be established by evidence and could not be proved by the assertions of counsel. In this respect the ease was in an entirely different position upon this trial than it was when all the evidence was in upon the former trial. The subsequent evidence undoubtedly tended to show, of itself, that the vessel was unseaworthy, for the reason that, although no heavy weather was encountered upon the voyage from Tecolutla, yet the vessel sprang a leak and had to be abandoned. The second mate said that on this voyage they did not have anything more than fresh gales of wind — high seas running sometimes, but nothing extreme — there was nothing more than common in a fresh gale of wind; that they had some rough weather, some fine weather, some strong winds, some head winds and some stormy weather, and that he did not know what caused the vessel to leak. A dav or two before the ship was abandoned they had quite a fresh gale of wind, and then it moderated, and it was after the gale moderated that the leak was discovered. Subsequently, the sliqi was picked up at sea and taken into Norfolk. This evidence unexplained might justify the jury in finding that at the time she left Tecolutla the ship was not seaworthy.

Evidence was offered by a person who had experience as a navigator to show that when she was examined at Norfolk a large quantity of auger boles were found in her, and that in bis opinion they bad been there for sometime — some weeks, and this evidence was offered to show the reason why the vessel bad filled w.itb water when there bad been no cause known to the witness who was an officer of the ship.

Upon motion of the counsel for the defendant this evidence was. stricken out, and an exception taken. It seems to us that it was competent for the plaintiff to show the condition in which this vessel was found after she had been abandoned; and that the assumption by the learned court that this evidence was incompetent upon the ground that it is matter of common experience that captains frequently bore holes in derelicts for the purpose of getting them out of the way was not well founded, as no such violent presumption was to be indulged in by the court at least, whatever might have been the province of the jury upon the whole of the evidence. With this evidence before the court, there would seem to have been some evidence tending to show the seaworthiness of the vessel at the time of the issuance of the policy, and some explanation given of the reason why she filled with water, as is the undisputed evidence. There was,, therefore, a question to be determined by the jury upon this point.

The claim that there was no proof of the shipment of the cargo • insured, sufficient to go to the jury, does not seem to have been well founded; and, in connection with the proof upon that point, competent evidence seems to have been excluded. The witness Malpica. testified: '£ I counted the packages shipped on board the L. E. Cann in January and February, 1882; but, as to the weight, I did not weigh them, as I had nothing to do with the weight; I counted the bales of rice and the bags of coffee, as well as the bales of rags and cases-of zinc and the packages of bones; I recollect the number of packages by the exhibit marked ‘ F ’ shown me on my direct-examination,’’ which seems to have been the witness’ bill for the shipping and lading of the merchandise therein mentioned upon the bark “L. E. Cann.”1

This evidence is certainly as strong as that which was presented in Palmer v. Great Western Insurance Company (116 N. Y., 599), in which case it was held that, while the evidence in respect to the cargo was not as clear and satisfactory as the court could wish, still enough appeared in the case to sustain the submission of the question to the jury.

Attention is also called to the exclusion of certain evidence, namely, the bills of lading; sucli exclusion being upon the ground that there was no proof as to the person by whom they were signed.

It appeared that upon the previous trial there was a distinct admission that the papers in question were signed by the master of the “L. E. Cann;” 'and notwithstanding this admission, made unqualifiedly and unreservedly upon the previous trial, the court excluded the papers, apparently upon the ground that they had not been properly proven. This, we think, was clearly error. The admission given was not for the purposes of the previous trial only. It was a broad, plain admission which, under the provisions of the Code, the plaintiff had a right to ask the counsel for the defendant to make before the trial.

Section 735 provides that the attorney for a party may, at any time before the trial, exhibit to the attorney for the adverse party a paper material to the action and request a written admission of its genuineness. If the admission is not given within four days after the request and the paper is proved or admitted upon the trial, the expenses incurred by the party exhibiting it in order to prove its genuineness must be ascertained at the trial and paid by the party refusing the admission, unless it appears to the satisfaction of the court that there was a good reason for the refusal.”

Now, in the case at bar upon the previous trial the counsel for the defendant was requested to admit the genuineness of these papers and such admission was taken in open court and entered upon the minutes without qualification or reservation, and was made for the express purpose of dispensing with formal proof upon the trial. And we think that, without at least some notice of the withdrawal of this admission, the counsel for the plaintiff had a right to rely thereon upon any subsequent trial and'was entitled to read the papers in evidence, if they were competent, had they been proved. Admissions of this kind, unless specially restricted, are admissions in the cause and which follow it through' all its stages and may be availed of at any subsequent period.-

The point has been raised as to the exclusion of the papers to which the witness Malpica referred in his testimony for the purpose of refreshing his memory. But it will be seen, upon an examination of this testimony, that no error was committed in tbeir exclusion, for tbe reason that tbe testimony does not come up to tbe rule laid down in tbe case of tbe National Ulster County Bank v. Madden (114 N. Y., 284), it being said in that case: “ It lias uniformly been beld admissible for tbe witness to refer to tbe original entries in respect to tbe facts wbicb be was called upon to testify, and, if be verifies tbeir correctness and is unable to recollect sucb facts, independently of sucb entries, tbey may be read in evidence.”

In tbe case at bar there is no evidence upon tbe part of tbe witness that, after reference to these papers, be was unable to recollect tbe facts. His testimony simply was that, as I cannot remember tbe quantity of tbe goods shipped and the quantity of each kind of goods, I refer to tbe exhibits wbicb are both true. And then be went on and told tbe quantity of tbe goods, but be nowhere stated that after an examination of those papers be was unable to recollect the facts therein contained, and hence one element necessary to make sucb papers competent evidence of themselves was absent.

"We have examined tbe other exceptions to wbicb attention has been called, but do not deem that any of them needs special mention.

It would seem, therefore, for tbe reasons heretofore stated that tbe learned court erred in taking tbe case from tbe jury and dismissing the complaint, and that the judgment must be reversed and a new trial ordered, with costs to tbe appellant to abide the event.

O’BRIEN and Follett, JJ., concurred.

Judgment reversed and new trial ordered, with costs to tbe appel lant to abide event.