text:
    MEYER ELSAS, Respondent, v. THE SECOND AVENUE RAILROAD COMPANY, Appellant.

      Damages for future apprehended consequences of an injury — degree of probability which, must exist — evidence.

    Or the trial of an action to recover damages for personal injuries to the plaintiff, occasioned by the alleged negligence of the defendant, a physician, called on behalf of the plaintiff, after describing the injury, was asked: “ From what you know of the nature of such an injury, is the result that arises therefrom such that the plaintiff would suffer at all or would probably suffer from the effects?” This question was answered, subject to objection, “ From my experience of that kind of injury my opinion would be that on any unusual exertion or exposure, some pain may be suffered there. The use of the joint will, however, remain the same.” The witness was also allowed, subject to objection, to testify that, in his opinion, a change of weather might have a temporary effect upon the injury so as to make it painful at such times.

      Held, that the evidence was improperly admitted.
    That, to entitle the plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.
    Appeal by the defendant from a judgment entered, after a trial at the New York Circuit before the court and a jury, in the office of the clerk of the county of New York on the 20th day of January, 1888, in favor of the plaintiff, in whose favor the jury rendered a verdict for the sum of $1,000; and also from an order, entered in ■said clerk’s office on January 14, 1888, denying the defendant’s motion for a new trial made upon the minutes of the judge before whom the action was tried.

      A.gustus S. Hutchins, for the appellant.

      John P. Bothschild, for the respondent.
   Brady, J.:

This action was brought to recover compensation in damages for injuries resulting to the plaintiff from the defendant’s negligence. During the trial Dr. Nichols, who was examined on plaintiff’s behalf, and who described his injury, was asked : “ From what you know of the nature of such an injury, is the result that arises therefrom such that pain and suffering, might be permanent ? ” This was objected to as a conjecture and excluded. Later on the learned justice presiding suggested to the plaintiff’s counsel that he thought it quite within his province to ask Dr. Nichols if, in his opinion, the plaintiff would suffer at all, or would probably suffer from the effects of the injury, upon which the counsel said: I will put the question in that way. The defendant’s counsel objected to the question in that form as too remote and conjectural, but the objection was overruled and exception was duly taken. The witness then answered : From my experience of that kind of injury, my opinion would be that on any unusual exertion or exjiosure some pain may be suffered there. The use of the joint will, however, remain the same.” The defendant’s counsel moved to strike out the latter part of the answer as too conjectural, but the motion was denied and exception duly taken. The objectionable part was, doubtless, the statement “ some pain may be suffered there.” It was clearly subject to the criticism of the defendant’s counsel. Inquiry as to the effect of the injury in case of a change of weather was also made and this question asked: “ Taking your opinion as a doctor, who has treated cases of this kind frequently, as you say, where an injury of that character has taken place, would, in your opinion, a change of the weather, such as rainy weather or damp weather, have a temporary effect upon an injury so as to make it painful at such times ? ” And the answer was, “ It might.”

The defendant’s counsel moved to strike out the answer upon the ground that it was too conjectural, but the motion was denied and exception duly taken. These answers were equally as objectionable as the question excluded, and should have been stricken out. It is not enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, nor even that they are likely so to develop. To entitle a plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. (Strohm v. N. Y., L. E. and W. R. R. Co., 96 N. Y., 306; see, also, Miley v. Broadway and Seventh Ave. R. R. Co., First Dept., decided Jan. 24, 1890.) When the witness said some pain “ may ” be suffered there and a change of weather “ might ” make the injury painful it was contingent, speculative or merely possible proof, which is expressly condemned in the case just cited. The reasonable certainty demanded by the rule is not stated or such a degree of probability shown as amounts to such certainty. The rule is clearly stated; seems to be easily understood, and yet is departed from. The question as to a change of weather was properly framed, inasmuch as it asked “ would such ” a change have an effect upon the injury, and if the witness had answered yes, or it would, the objection would not have existed. The answer “it might ” presented a possibility or a speculation on the subject indicating a doubt in the mind of the witness. Defendants are not called upon to pay for such contingencies, and, unless the rule prevailing as to the proof of damages is changed, will not be. When exposed to-such danger the courts, by appellate jurisdiction, must, if aiijdied to,, protect them.

For these reasons the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event; ordered accordingly.

YaN BeuNt, P. J., and DaNiels, J., concurred.

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


source: Caselaw Access Project

author: Beady, J. : DANIELS, J.:

license: Public Domain

text:
    In the Matter of OSCAR STRASBURGER.

      Landlord and tenant— an eviction, occasioned by the latter becoming insane and not paying the rent under the principal lease — right of a sub-tenant to recover, from the principal tenant, the dmnages-resulting to him therefrom — measure of damages.
    A tenant of real property wlio lias under let the same to other parties, and by reason of his subsequently becoming insane has failed to pay the rent to the owner of the premises under his lease thereof, because of which he and his sub-tenant have been evicted from the demised premises, is not liable to such sub-tenant for the difference between the rent agreed to be paid by him and the actual value to him of the leasehold estates.

      Mach v. Patchin (42 N. Y., 167) followed. ■
    A lessee can ordinarily recover for a breach of the covenant of quiet enjoyment, by way of damages, only such rent as he has advanced, and such mesne profits as he has become liable to pay. The rule is otherwise where the lessor has been guilty of fraud, or having the ability to make good the title of his lessee intentionally fails to do so.
    Appeal by Simon L. Deutscli and Alexander Deutsch, composing the firm of Deutsch & Co., claimants, from a .judgment, entered in the office of the clerk of the county of New York on November, 3, 1886, settling the estate of Oscar Strasburger, an alleged lunatic, and distributing the proceeds thereof.
    The appellants claimed the same pro rata share of said estate as the other creditors, by reason of certain alleged damage resulting to the appellants, because of the failure of the lunatic to pay the rent due under a lease of certain premises occupied by the claimants under a sub-lease from-him.

      As the result of an order of reference made therein in respect to the claim of Deutsch Bros., the following facts were found by the referee:

      First. That Oscar Strasburger entered into a lease with Simon L. Deutsch and Alexander Deutsch, bearing date February 6,1882, and also into another lease bearing date December 6,1883, which leased and demised to the said Messrs. Deutsch the .premises described as follows: The first, third, fourth and fifth lofts of the building known as Nos. 50 and 52 Howard street and 16 Mercer street, in the city •of New York, for terms of years expiring February 1, 1886, at the annual rental of $4,500.

      Second. That the Messrs. Deutsch entered into possession of the premises described in said leases, and subsequently and before the 20th day of November, 1884, sub-let to various parties the said premises.

      Third. That the said Messrs. Deutsch sub-let the said premises, leased to them by the said Oscar Strasburger, at the sum of $7,700 per annum, and all thereof, for the terms specified in the leases made by them with the said Oscar Strasburger, except a small portion which they rented to one-S. Hamburger for a year.

      Fourth. That the Messrs. Deutsch entered into written agreements with all the parties to whom they sub-let parts of the premises leased by them from the said Oscar Strasburger, except for a small portion of the first floor of the said premises, which were rented to the said Hamburger at a rental of $100 per annum.

      Fifth. That all the parties to whom the Messrs. Deutsch rented the premises leased by them from the said Oscar Strasburger are .solvent.

      Sixth. That on or about the 1st day of November, 1884, the then ■committee of Oscar Strasburger demanded from the Messrs. Deutsch the rent in advance for the quarter beginning November 1, 1884, and which rent the Messrs. Deutsch paid and received a receipt therefor from the then committee of Oscar Strasburger.

      Seventh. That on or about the 20th day of November, 1884, the ■owner of the premises, and the landlord of Oscar Strasburger, instituted summary proceedings for non-payment of rent, and made parties to said proceeding the Messrs. Deutsch and their sub-tenants.

      Fighth. That such proceedings were, had in said summary proceeding that judgment was rendered in favor of the landlord, a warrant of dispossession issued, and the Messrs. Deutsch and their sub-tenants removed.

      Ninth. That the rent payable by Oscar Strasburger to his landlord, the owner of the premises, was the sum of $10,500 per annum.

      Tenth. That the difference between the rent paid by the Messrs. Deutsch under the leases made by them with Oscar Strasburger, and that received by them from their sub-tenants, was $3,200 per annum.

      Eleventh. That the rental received by the Messrs. Deutsch from their sub-tenants appears to be the reasonable rental value of the said premises.
    Upon these facts the referee was asked to find the following conclusions of law, which he refused.

      First. That the Messrs. Deutsch are entitled to recover damages, by reason of their dispossession from the premises leased to them by Oscar Strasburger, the lunatic, from the 20th day of November, 1884, when they were removed from the premises, to the period fixed for the end of the terms for which they hired the said premises, and amounting to the sum of $3,831.10, with interest from February 1, 1886.

      Second. That they are entitled to have this amount allowed as a claim against the estate of Oscar Strasburger, a lunatic, and are-entitled to share in the distribution of the said estate among the-creditors of the said Oscar Strasburger.

      Third. That they are entitled to their costs of this proceeding. To the refusal of the court to enter a judgment in conformity to these findings the appellants duly excepted.

      J. Fettretch, for the appellants.

      F. Oonwa/y, for the respondent.
   Beady, J. :

Oscar Strasburger, the lessee, subsequent to the execution of the leases to the appellants, became insane, it appears, andón the lTth of September, 1884, a committee of his property was appointed, who-duly qualified and entered upon the discharge of his duties.

At the time, therefore, that Strasburger executed the leases in-question to the appellants, mentioned in the statement of facts, he was sane, and the non-payment of the rent by bim under bis lease to the owners of the property, wbicb resulted m the eviction of the appellant, occurred during bis insanity. It may bé said, therefore, that be did nothing conducing to the eviction for wbicb be was responsible or in any way identifying bim with it. His responsibility bad, in consequence of bis unfortunate condition, entirely ceased and the bailiff of the court was put in possession of bis property.

If there bad been no change in bis mental condition, and the relations existing between the appellants and bim by virtue of the leases bad continued, and by bis wrongful act be bad caused the eviction of the appellants, be would doubtless have been responsible for the damages occasioned by bis wrongful act under the authorities.

The rule in regard to damages resulting from a breach of the covenant of quiet enjoyment may be said to be peculiar, and it is that the lessee can ordinarily recover only such rent as he has advanced, and such mesne profits as be is liable to pay over. (Mack v. Patchin, 42 N. Y., 171.) There are exceptions to the rule as stated in that case, and they are said to be: “ If the vendor is guilty of fraud; or can convey, but will not, either from perverseness or to secure a better bargain; or if be has covenanted to convey, when be knew be bad no authority to contract to convey; or where it is in bis power to remedy a defect in bis title, and be refuses or neglects so to do; or when be refuses to incur expenses wbicb would enable bim to fulfill bis contract ; in all these cases, the vendor or lessor is bable to the vendee or lessee for the loss of the bargain, under rules analogous to those applied in the sale of personal property,” the rule of damages being the same in actions brought against vendors for failure to complete a contract, and in actions brought against lessors for violations of the covenant of quiet enjoyment. They are both referred to in stating the exceptions to the general rule already mentioned.

The case just quoted is reaffirmed and its doctrine reiterated in Cockcroft v. New York and Harlem Railroad Company (69 N. Y., 207). And in Trull v. Granger (8 id., 115) the right to-recover in cases kindred to that of the appellants rests upon the tortious conduct of the lessor. If, in this case, for example, Strasburger, not at the time being a lunatic, bad declined to pay the rent wbicb resulted in the eviction mentioned, be would be responsible for the damages sustained. The duty of paying tlie rent, if any duty existed, as to which qumre, resting upon the committee in order to avoid proceedings to dispossess the occupants, including the appellants, then the remedy would be against him, and not against the estate of the lunatic.

The absence of any right to pursue the estate is evolved from the principles declared by these cases, and the referee was, therefore, right in declining to hold the estate responsible. It appears, in addition, according to the statement made by one of the appellants before the referee, that an important incident in reference to the demise occurred, and which is related by him as follows:

Two or three days after I had paid the rent to Albert Strasburger for the three months in advance, the agent for the owner had me come down to see him, and he told me that there was no rent paid for the premises I occupied for the past three months or longer, and that in consequence of their not paying the rent I should be dispossessed unless I could get Mr. Strasburger to pay the rent due, and they would transfer the lease, with his consent, to me; I said I would try and see what I could do in the matter, and the agent of the owner of the premises went with me to see Mr. Albert Strasburger, and we made him a proposition to pay the owner the rent due up to date — that is, up to November first, and transfer the rent already paid him up to February 1, 1884, and to consent to the transfer of the lease to me, which the owner was willing to give me for the same rent or a trifle advance on that which I paid to Mr. Strasburger ; he did not consent to this, and shortly afterwards proceedings were taken to dispossess us, and we were dispossessed.”

From this it also appears that the claimants might have saved their, demise by an arrangement with the owner, who was willing to ■extend to them the term secured by the lease for the same rent which was to be paid by the lunatic or a trifle in advance. It is true that the committee refused to consent to such transfer, but there is little doubt that an application to the court would have resulted in an order directing that to be done, because it is manifest it would have been for the benefit of the estate.. At all events, there is no doubt that the appellants, as sub-tenants, had a right to pay the rent to the original lessor for the purpose of protecting their own demise, and this could have been done, whether the committee consented to it or not, if the latter was not ready to pay the rent due under the original lease.

For these reasons, although it is conceded that the question is somewhat novel, the judgment should be affirmed, with costs.

DANIELS, J.:

Oscar Strasburger was himself the lessee of. the premises leased by him to the claimants. In leasing to them he did not exceed his own term. But he became disabled to go on with his business and keep up his own rent, by his subsequent insanity. And that resulted in the removal of the claimants as sub-tenants, by summary proceedings. That was produced by his misfortune, not his fault. And as his title was defeated owing alone to that circumstance, as the law has been stated and followed in Mack v. Patchin (42 N. Y., 167), he was not liable, neither was his estate for the difference between the rents reserved in his leases to the claimant, and the value to them of the leasehold estates. That is the sole claim now made, as the rent paid in advance was refunded, and the judgment or decision should be affirmed.

Yan Beunt, B. J., concurred.

Judgment affirmed with costs.


author: DANIELS, J.:

text:
    In the Matter of the Last Will and Testament of FREDERICK G. DALE, Deceased.

      Will — must be deala/red to be such either at the time of its execution or acknowledgment.

    It is necessary to the validity of a will that a testator, either at the time of subscribing it or of acknowledging the execution thereof, should declare the instrument to be his last will and testament, and it is not sufficient that, upon a subsequent occasion, he states to the witnesses to the will that the instrument signed by them was his last will and testament.
    Appeal by the petitioners and proponents, Alexander de Bottari and Olga de Bottari, from a decree of the surrogate of the county of New York, entered in the office of the clerk of said Surrogate’s Court on the 3d day of April, 1886, denying the petitioners’ motion to vacate. and set aside the decree, entered in the above-entitled, matter on the 11th day of May, 1885, rejecting the paper propounded, as the last will and testament of Frederick Gr. Dale, deceased.

      Simon Sterne, for the petitioners, appellants.

      James Thomson, for the respondents.
   DANIELS, J.:

The deceased died on the 13th of April, 1885. He was unmarried,, and left at the time of his decease a sister and three half brothers, as his heirs at law and next of kin. The paper' proposed to be-proved as his will was dated on the 22d of July, 1884. It was-wholly in the handwriting of the deceased, and was witnessed by Samuel P. Weir and Edward Fesser, but it was followed by no-attesting clause. Upon the hearing following the presentment of this paper to the surrogate for probate it was rejected because of the insufficiency of the evidence to prove a compliance with one of' the statutory requirements necessary to be observed for the establishment of the instrument as a will. The appellants, who were legatees named in the will, were not parties to that hearing before-the surrogate, and afterwards applied to him to vacate the decree and admit the instrument to probate as a will. And an order was. made, on their application, by the surrogate directing a further hearing of the case, upon which the petitioners were to be allowed to-show that the instrument was duly published as a will according to law. And if that fact should be established, then the decree-rejecting it as a will should be vacated and set aside. But if they should fail to make such proof, then the decree already entered, it. was declared, should stand.

There can be no doubt, from the nature and tenor of the instrument, that it was intended by the deceased to be his will, under whose provisions his entire estate was to be distributed. Neither can there be any doubt that the testator subscribed the instrument-as that was required to be done by the statute. And the subscription of his name to the instrument was proved to have been acknowledged by him to each of the attesting witnesses. But the defect in the evidence upon which probate was refused to this instrument was, that the fact had not been proved that the testator, either at the' time of subscribing the instrument or of the acknowledgment that it had been subscribed by him, had declared it to be his last will and testament.

This the statute has required to be done to create a valid execution: of the instrument as a will, even where it may have been written, as this instrument was, wholly by the deceased. Its language is, that, “ The testator, at the time of making such subscription, or at the-time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament.” (3 R. S. [6th ed.], 63, § 38.) And a substantial, although not a literal compliance with this requirement, was accordingly required to be proved to have taken place to-entitle this instrument to probate as a will. This is not only the language clearly expressed of the statute,- but its observance has been uniformly and substantially required by the courts. And in Gilbert v. Knox (52 N. Y., 125) it was held that before a will can be admitted, to probate it must appear affirmatively that the statute has been complied with. And to comply with the requirements of subdivisions 2' and 3 of this section of the statute, the testator must, either at the-time of subscribing the instrument or at the time of acknowledging it, declare it to be his last will and testament. And to observe this requirement, proof that the nature of the instrument was known to the testator was not of itself sufficient. But it was requisite that “knowledge that the instrument which the witnesses are called upon to attest is a will, must be communicated to them by the testator at the time of his subscription or acknowledgment, and knowledge derived from any other source, or at any other time, of’ the same fact, cannot stand as a substitute for the declaration of the-testator.” (Id., 128.) And this principle was approved and followed in Woolley v. Woolley (95 N. Y., 231); and so it was in the case of’Matter of Will of Cottrell (Id., 329), where the statement was-, approved that “ The onus of showing a compliance with the statute-devolves upon the party seeking to establish the will, but the formal execution and publication may be shown by persons other than the-subscribing witnesses, or inferred from circumstances as well as established by the direct and positive evidence of the attesting witnesses.”’ (Id., 334.) And in the case of Matter of Beckett (103 N. Y., 167). the instrument was sustained as a will for the reason that the evi■deuce was found to be sufficient to prove a compliance with this direction of the statute.

In the present case no other person or persons were present, and within hearing of what transpired, than the decedent, and the individuals who, at the time, subscribed the instrument as witnesses. '.The witness Fesser was first examined upon this hearing before the .surrogate, and he testified that he was asked by the decedent to sign the instrument as a witness. His statement was that “ the document was signed by himself. It was turned down leaving only his signature apparent. I indicate the exact condition the paper was in when he asked me to sign it. It was about that way (showing the paper folded once about in the middle with only the space from the signature down exposed). I said I did not like to witness a document without knowing the contents thereof. Fie laughingly said he did not want me to know the contents. I said I thought if I was witnessing any document I ought to know the contents. I said that in a joking way, not knowing the contents. I said I did not want to .sign it unless I knew the contents. He said he did not wish me to know the contents. In reply I did not say anything ; I witnessed it.” This witness was examined very minutely as to what took place at this time, and he adhered in all the repetitions of his evidence ■concerning it substantially to the statement in this manner made. He testified positively that no statement was made 'to him by the ■deceased that this instrument was designed by him to be his will. Upon a subsequent occasion, several weeks after the witness had in this manner subscribed his name, he states that a conversation ■occurred between himsell and the deceased upon the subject of making his will, and he was then informed by the deceased that the instrument which had in this manner been subscribed was the will ■of the deceased. But this was not such an acknowledgment as the ¡statute has required to establish the legal execution of a will. . For’ that purpose it has been required that the acknowledgment or statement shall be made at the time of the subscription by the witness.

He was further interrogated as to whether he had not stated that, at ■the time when he became a witness to the instrument, he did not know that it was the will of the deceased. He denied having made that statement. And evidence was given by one of the appellants, and another ■person examined as a witness on the hearing before the surrogate, that be bad, in conversation with them, stated that be then knew this instrument to be the will of the deceased. But this was not evidence to. prove the fact that the acknowledgment required by the statute bad been made. It was, at the most, testimony admissible in the case-for the object of impeaching the testimony of this witness. And if full effect is to be given to it as such evidence, there was still no-proof whatever before the surrogate that the deceased had in any form, either by words or acts, acknowledged to the witness this-instrument to be his will. And no inference could be drawn from the fact that payment of the legacy of $1,000, provided for him in the will, had been promised by a contestant, that the acknowledgment of the execution of this instrument had been made which the= statute rendered necessary to maintain its validity. So far as the case depended upon the testimony of this witness, it failed to prove-a compliance with the requirements of the statute. And the evidence of the other subscribing witness was substantially to the same-effect. He stated that he had subsequently learned from hearsay what the instrument was. But at the time of subscribing it his testimony was that “ Mr. Dale came to me and asked if I recognized that to be his signature.” I said “ Yes.” Then he said : I want' you to sign it as a witness.” “"We had some little conversation in a joking way as to the contents of that paper. I asked him if he would tell me what that paper contained. He said it was none of my business. That was the substance. Mr. Dale and I were very intimately acquainted, and when he presented this paper I jokingly asked him what the contents of it were, as he had folded it up in. such a manner I could not see except just his name. I asked him he, being a sensitive man, objected to telling me what was in it. I, of course, did not push the matter, and, therefore, signed at his request.” He further testified that he did not suspect it was a will, and knew that the deceased did not say it was his will. He was-further and fully examined upon what had taken place, and adhered to the truth and correctness of this statement. And from what is testified to have taken place, it is clearly to be inferred that no statement was made and no act was done conveying to the mind of this witness the fact that the deceased intended this instrument to be his-will. Further evidence was given by Mr. Anable of an interview which took place between himself and Mr. Weir, but it did not vary from the statement made by this subscribing witness. At most, it proved a repetition of what the witness himself had stated, that he had learned afterwards that this instrument was intended by the ■deceased to be his will. As the case was presented there was an entire failure in any form to establish the fact that the deceased had .apprised either of the witnesses, at or about the time when they were requested to witness the instrument, that it was intended by the deceased to be his will. In this respect the case differs very manifestly from that of the will of Stillman, lately decided by the .surrogate of the county of New York. For there one of the subscribing witnesses testified to a complete compliance with all the .requisites prescribed by the statute for the making of a valid will, while here that proof was wholly wanting.

The appellants proposed to prove that near the time of the decease •of Mr. Dale efforts were made, in the interest of his next of kin, for ,the destruction of this instrument. But this evidence was rejected by the surrogate, and the ruling excluding it appears to have been proper; for if it had been proved, as it was proposed to be, that a .lighted candle had been placed in one hand of the deceased and this instrument in the other for the obvious design of having it burned .and destroyed, or that it was partially mutilated by his sister, that would not have been proof or evidence tending to jDrove the fact -that the deceased did declare this instrument to be his will in the presence of either, or both, of the attesting witnesses. Neither would it have been proof of that fact, that Mr. Faxon was requested in writing, by two of the next of kin, to make a statement that the instrument had been destroyed by the deceased, Mr. Dale. The proposed evidence, if it had been received, would have been ample jproof of the depravity of one or both of these next of kin; and it would have established the fact that there was a desire on their part to secure the unlawful destruction of this instrument. But neither ■this depravity nor this desire would prove that the statute had been ■complied with, when each of the subscribing witnesses testified that it had not been, and there was no other evidence in the case from which the existence of the disputed fact could be inferred. To establish the instrument as a will, after the testimony of these subscribing witnesses had been given, it was necessary, under the legal principle previously existing, and since embodied in section 2620 of the Code of Civil Procedure, that proof should be given of the existence of facts and circumstances which would be sufficient to prove the will upon the trial of an action. And in that proof it has been made necessary, by the language of the statute, that the fact shall be established that the instrument was declared, in some form, by the decedent to be his will. There was no such proof produced before the surrogate. But the proof which was given was, that the instrument had not, either by words or acts, been declared to either of the witnesses when they subscribed it, by the deceased, to be his will; and subsequent reference to the instrument, as the will of the deceased, was not a compliance with what the statute has prescribed. They were not apprised of that fact at the time mentioned in the statute, but information of it was then purposely withheld from them by the deceased. The evidence justified the disposition of the case which was made by the surrogate, and the decree should be affirmed. But, on account of the misconduct of the next of kin, as that was proposed to be, and would probably have been, proved, if the offers made had not been rejected upon their objection, the .affirmance should be without costs.

Yan Brunt, P. J., and Brady, J., concurred.

Decree affirmed, without costs.


author: Daniels, J.:

text:
    HENRY M. PEYSER and Others, Appellants, v. SARAH L. MYERS and Others, Respondents, Impleaded, etc., with WILLIAM M. HALSTEAD and Others.

      Gompound interest — wJienit cannot be recovered after being paid — when it can- — • assignment set aside as void.

    In a judgment-creditor’s action, brought to set aside a general assignment made by a firm, it appeared that an account stood upon the firm books showing a credit to one Myers, who was preferred under the terms of the assignment, in which account interest had been added at the rate of twelve per cent per annum from January 1, 1870, to June 1, 1877; that about the month of June, 1877, Myers drew out of such account the principal and interest, $183,699.70, to which, according to the books, he had become entitled, and shortly thereafter he returned to the firm $179,000.

      It further appeared from the firm books that some $140,000 was due to Myers in January, 1874, and that from that date to the time of the failure of the firm in July, 1884, there was over $180,000 allowed as interest on this account, which was some $48,000 in excess of what the simple interest for that period would have been. No agreement was proved to pay or allow to Myers compound interest.

      Held, that the interest drawn out by Myers, in 1877, could not be recovered by the plaintiffs, as by the statute the right of the borrowers, as well as of the plaintiffs claiming under them, to recover the usurious excess of interest, was limited to-an action tobe brought within one year after the payment thereof.
    That, as to the excess of interest credited to Myers in the second account above-mentioned, and claimed by him to be due at the time of the failure, inasmuch as the assignment was adjudged to have been made with the intent to hinder, delay and defraud creditors, the payment thereof by the assignee to him, under the preference contained in the assignment, was invalid, and that the plaintiffs were entitled to have this excess of interest applied in satisfaction of their demands.
    Appeal by tlie plaintiffs from so much of a judgment rendered at a Special Term held in the county of New York, and entered in the office of the clerk thereof on the 12th day of December, 1889, as directed that the complaint be dismissed upon the merits as to the defendants, Sarah L. Myers, John IL Myers and Matthew R. Myers, and that the defendants Myers, as executors, etc., recover from the plaintiffs their costs of this action.

      John J. Adams and Charles E. Hughes, for the appellants.

      William Pierrejpont Williams, for the respondents.
   Daniels, J.:

The plaintiffs are judgment-creditors of the firm of Halsted, Haines & Co. They recovered their judgments in the latter part of tñe year 1881 and the early part of 1885. And upon these judgments executions were issued against the property of the judgment-debtors and returned unsatisfied. On the 12th of July, 1881, the judgment-debtors made a general assignment to Lewis May of all their joint and individual property for the benefit of their creditors. This assignment contained a preference in favor of the executors of JohnK. Myers for the sum of $102,872. The assignment also contained other preferences amounting to about the sum of $100,000. After the assignment was made and accepted by the assignee, and on the 9th of September, 1881, he delivered to Frederick A. Ward, who was the attorney for the preferred creditors, a check for the amount of their preferences. The payment of this check was restrained by an injunction at the suit of other judgment-creditors, but it was paid on the 16th of October, 1881, and the attorney transferred to the executors and executrix of the estate of John K. Myers the amount received by him on account of and to satisfy this preference. And it was the object of the action to set aside the assignment and this payment, and require the executors and executrix to account for so much of this money as should be necessary to pay the judgments set forth in the complaint in this action.

The testator became a partner in a preceding firm engaged in the same business and under the same name as early as January 1,1860, and he invested as capital in the firm the sum of $62,318.73. This was increased by interest and profits to the sum of $131,828.85 by the 1st of December, 1872, and the evidence tended to show that on that day the testator withdrew from the firm. The evidence as to. this fact was not very decisive. But it did appear that after the 1st. of January, 1873, his account on the books of the firm was headed,, instead of a stock account, a private account. And a notice was published in the New York Times, over the name of the firm, stating-that Myers had withdrawn from it. A new firm was organized in January, 1873, and the bookkeeper of that firm testified that Myers was not one of its members. ITis evidence was by no means decisive, but it tended to establish that to be the fact. And a similiar statement was made by the plaintiffs’ witness Davidson from the examination which he made of the books, but it was not confidently adhered to in the future course of his evidence. The witness William A. Haines stated that he was very confident that Myers retired from the firm within three years after he himself entered it, and he became a member of the firm in 1870. And the witness William M. Halsted added, in the course of his evidence, that he thought Mr. Myers retired from the firm in December, 1872. These witnesses were unable to state the making of any agreement by which Myers ceased to be a member of the firm. But from the manner in which the books were kept and the statements were made by them, there was sufficient to sustain the conclusion reached by the judge presiding at the trial tliat Myers did cease to be a member of the firm from the last of December, 1872.

Interest was stated to appear f ,om the books to have been added to his account at the rate of twelve per cent from the 1st of January, 1870, to the 1st of June, 1877; and, so far as this exceeded the sum of five per Cent, it is claimed in behalf of the plaintiffs that it should be accounted for and applied to the payment of the plaintiffs’ judgments. But it appeared from the evidence that the testator, in the early part of the summer of 1877, became apprehensive that the reservation of this additional interest might imperil his right to the moneys standing to his credit on the books of the firm; and during the months of May, June and July, 1877, he, with the assent -of Mr. Iialsted, who seems to have been more especially the managing partner of the firm, drew out of it the principal and interest^ to which, according to the books, he had become entitled, receiving in this manner the aggregate sum of $183,699.70, and during the same months he returned to the firm the sum of $179,000. The object, which seems to have induced these collections and the return of the money, was to put it out of the power of the firm to question its liability because of the reservation of this usurious interest; and the adjustment of the amount in this manner not only prevented the firm itself, but the plaintiffs, insisting upon the right to the collection of this usurious reservation of interest.

The result would have been the same if this change in the accounts had not taken place, for, by the statute, the right of the borrowers, as well as of the plaintiffs claiming under.them, to recover the usurious excess of interest, was limited to an action to be brought within one year after the payment of the usurious interest. (2 R. S. [6th ed.], 1165, § 3; Palen v. Johnson, 50 N. Y., 49.) But when the debtors made the assignment, even if the preference contained in it, in favor of the executors and executrix of the testator, included the balance which, in part, had arisen out of the allowance of this interest, that would not entitle the plaintiffs to recover it, for such an assignment has been held to preclude the assignee, as well as the other creditors, from questioning the legality of the preference. (Murray v. Judson, 5 Seld., 73.) As to this usurious interest it was properly held, therefore, that the plaintiffs were not in a condition to maintain their action.

It further appeared from the books of the business that $141,893.31 was due to the testator on the last of January, 1874; and from that date to the failure in July, 1884, there was $130,157.74 allowed as interest on his account; and that the simple interest for that period was the sum of $57,095.70, leaving a residue consisting of credits for compound interest amounting to the sum of $48,574.99, and the interest had been compounded annually, or semi-annually, as it appeared by the books. The testator died in September, 1877, and this firm is shown to have been insolvent from the first of January of that year. ' But no agreement has been proved at any time to pay or allow to himself or his representatives this compound interest. And without proof of an agreement, sustained by a legal consideration, the allowance of such interest was unauthorized. This was considered in Young v. Hill (67 N. Y., 162), where the court determined “ that an agreement to pay interest ujion interest must, in order to its validity, be made after the interest which is to bear interest has become due ; and, second, that it must be supported by sufficient consideration. A mere voluntary promise, without a consideration, is a nudum pactum and cannot be enforced.” (Id., 167, 168.) As the juoof appeared in the case, therefore, so much as was paid by the assignee to' the personal representatives of this partner for compound interest was unlawful. Neither an agreement for its allowance was proved to have been at any time entered into, nor was any consideration shown to support such an agreement if it had been made. And the consequence was, that so much money as was paid by the assignee under the assignment to the executors and executrix of this estate, as included this compound interest, was substantially a gift to them, which, as the trustee of an insolvent estate, he had no right or authority to donate, and they were equally without the right to receive it. And in Bates v. McConnell (31 Fed. Rep., 588) it was held that a judgment-creditor was authorized to follow such a disposition of the insolvent estate and have it applied to the payment of his judgment. And this principle has the sanction of Penn Bank v. Furness (114 U. S., 376). There a retiring partner had drawn out a part of the capital of the firm, receiving an agreement -from the other members that they would pay its debts. The firm was at the time insolvent. And it was held, under these facts, that the retiring partner should restore the capital received .by Mm “ so far as may be necessary to pay the debts of the concern existing at the time, and this, too, whether there was any fraud designed in the transaction or not.” (Id., 380.) And. this principle has not been in any manner questioned or impugned by what was decided in First National Bank, etc., v. Central National Bank (53 Hun, 575); for there the payment was not. only made in good faith, but the creditor receiving it had become entitled to it through the preference of an existing indebtedness, contained in the assignment; while in this case the executors and executrix receiving the money had no title whatever to it, and no-right to withhold it from the other creditors of this firm.

By the assignment all the property of this firm, or nearly all of it, was devoted to the payment of the preferences contained in it. And the other preferred creditors received their money at or about the time when the payment of this preference was made-, to the representatives of this estate. And diverting so much of it as was used to satisfy the creditors for compound interest was no-more than a gift of that sum of money. And as this assignment, has been adjudged, and was conceded at the trial to have been made-with the intent to hinder, delay and defraud creditors, the plaintiffs, were entitled to succeed and to be secured the appropriation of this money for the satisfaction of their demands. The law does not permit insolvent debtors, or an assignee representing them, voluntarily to donate any part of his estate to another. But such donation or gift will be held to be void when the estate is insufficient to-pay the demands existing against it, as this estate was and had been for a period of upwards of six years. (Dunlap v. Hawkins, 59 N. Y., 342; Cole v. Tyler, 65 id., 73; Carr v. Breese, 81 id., 584, 589.)

The payment of these moneys to the representatives of this estate, and their right to detain it from the other creditors, is not sustained by the fact that a judgment was recovered in their behalf against, the assignors in August, 1881. A suit was brought to recover such a judgment, and the judgment was obtained afterwards by default for want of an answer. The other preferred creditors also obtained similar judgments upon their demands. And there is reason to believe that the actions were commenced and prosecuted at the suggestion of one at least of the judgment-debtors. They were all brought by the same attorney; and, so far as this particular judgment included tlie amount of this compound interest, it stood on no more than a fictitious demand. It had no foundation either in law or in fact, and was on that account a collusive or fraudulent judgment. It is, of course, true, as the law was conceded to be in Candee v. Lord (2 Comst., 269), that a judgment recovered in good faith by a creditor against his debtor will be held to be conclusive in a controversy of this description. But to allow that effect to be .attributed to it, it is essential that it must be recovered without fraud or collusion. If it has been recovered in bad faith, it is then entitled to no effect whatever. (Acker v. Leland, 109 N. Y., 5, 16.)

And a judgment recovered upon an alleged indebtedness, having no foundation in fact, may reasonably be held to be a fraudulent or collusive judgment. And where the object of its recovery is to transfer the insolvent debtor’s property to parties not entitled to receive it, there its recovery is to be inferred to have been intended to defraud the creditors of the insolvent debtor. And where that is the case it has been declared to be void by the statute, providing that every conveyance, etc., and every charge upon, lands, goods or things in action, and every bond or other evidence of debt given, ■suit commenced, or judgment suffered, with the intent to hinder, delay or defraud creditors, shall be void. (S R. S. [6th ed.], 145, § 1) And this judgment, to the extent already considered, is within the condemnation of this section of the statute.

But if it were not, as tlie money in dispute was not collected by the execution issued upon the judgment and levied on the assigned property, the judgment interposes no obstacle whatever in the way of the success of the plaintiffs’ action. For the fact was proved in the case, and found by the court, that the amount received by the representatives of this estate was paid by the assignee. And his authority for making that payment was not the judgment or execution, but the preference contained in the assignment. The money was not collected under the execution, but it was voluntarily paid over under the authority of the assignment itself. And as the representatives of this estate had no title to it and no authority to receive it, the plaintiffs were entitled, as judgment-creditors, to maintain this action for the appropriation of tins money to the payment of their judgments. When tlieir action was commenced the assignment had been declared void at the suit of other creditors, and it was not interposed as a valid instrument in the way of this action. But whether it could be or not, the payment of this compound interest to the representatives of this estate was a fraud upon the unpreferred creditors of the insolvent debtors. And as neither the assignment nor the judgment stand in their way, they should be permitted to recover these moneys certainly since July, 1877, when the $179,000 was returned, so far as they will be sufficient to pay the judgments in dispute, if the amount shall exceed the aggregate sum which may be recovered upon them.

The judgment should be reversed and a new trial ordered, with costs to the plaintiffs to abide the event.

Yan Brunt, P. J., and Brady, J., concurred.

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


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    THE SIXTH AVENUE RAILROAD COMPANY, Respondent, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY and THE MANHATTAN RAILWAY COMPANY, Appellants.

      Vacant lot — injured by the construction of an elevated railroad— evidence as to what the lot would produce if buildings were built thereon, too speculative —proof as to injury done to other property, incompetent — evidence as to annoyance from misconduct of railroad employees.

      In an action brought t'o recover damages lor the construction and operation of an elevated railroad in the city of New.York,-and to restrain the future use thereof, evidence was admitted on behalf of the plaintiff to show the possible uses towliich the plaintiff’s property might be put by the erection of expensive build ings upon it, and the amount of income which it might expect to derive from such improvements, and in regard to the inability of the plaintiff, by reason of the construction of the elevated railway, to make use of this property for these purposes. Evidence was also admitted to show the manner and extent to which other property was alleged to have been injured by the construction and operation of this elevated railway.

      Held, that the evidence so admitted was incompetent.
    That the evidence as to what disposition might be made of the property was. speculative.

      That the evidence as to what injury had been sustained by other pieces of property opened an inquiry not within the issues of this action.
    That the fact that other property had, or had not been injured, in no manner affected the right of the plaintiff to compensation for any injury done to its. property.
    Evidence was also admitted in relation to the misconduct of the men who were employed on the elevated railway, and in regard to other annoyances resulting from its operation, not affecting the light, air or approach to the property bounded upon the avenue, or relating to any disturbance or interference with it arising from the acts of the defendants, or the construction of the railway and stations, or their use or operation in the business of the railway itself.

      Held, that such evidence was incompetent.
    Appeal by the defendants from a judgment entered, after atrial at a Special Term lield in the county of New York, in the office of the clerk of the county of New York on the 3d day of May, 1889,. except so much thereof as adjudges “ that plaintiff recover of the defendants, the Metropolitan Elevated Railway Company and the Manhattan Railway Company, the sum of six cents damages.”

      JEdwcurd O. James, for the appellants.

      John U. Burrill and J. Archibald Murray, for the respondent.
   Daniels, J.:

The action was brought for the conjoint object of recovering damages for the construction and operation of an elevated railway in Sixth avenue, in the city of New York, and for an injunction restraining the future use and operation of the railway. At the time when the railway was constructed the plaintiff was, and since then has been, the -owner of a block of land on the easterly side of Sixth avenue, between Forty-third and Forty-fourth streets. This was, in part, occupied and used for a stable for its horses and for offices, and other purposes connected with its - business. It was also, and has continued to be, the owner of a block of land fronting upon the same side of the avenue, between Fifty-eighth and Fifty-ninth streets, and extending easterly 100 feet from the avenue; and also a lot of land fronting upon the avenue and situated on the southerly corner of Fifty-eighth street. Neither this land nor that between Fifty-eighth and Fifty-ninth streets had been improved; and in their vicinity, and more especially in front of the land between Fifty-eighth and Fifty-ninth streets, the structure of the defendants terminated on Sixth avenue. At that termination a station had been erected which, with the railroad structure, occupied the whole space above the surface of the street and a portion of the sidewalk. At this point the cars of the elevated railway were stationed when out of use; water was supplied to its engines, and the ashes accumulating therein were taken therefrom; and small buildings were erected upon the surface occupied by the defendants for other uses and conveniences of the defendants. This condition of affairs had continued in each of these localities from the time of the completion of the railway structure in or about the year 1878. But in the assessment and determination of the damages the plaintiff was held entitled to recover, for the injury which had accrued to its property, the allowance only of the sum of six cents; and that allowance has not been made the subject of complaint by either of the parties to the action.

But early in the progress of the trial it was stated by the defendants’ counsel, in case the court should deem the action to be a proper one for an injunction, that then it would be requested to determine what sum might be paid to avoid the injunction. And it is as to the proceedings which took place, and the evidence which was given to enable the court to ascertain and determine this sum, that the complaint has been made as to the disposition of the action. It was proved as a fact that the light and air in this avenue, and the approach to and from the plaintiff’s property, in front of which the station had been erected, was obstructed by the structure erected and maintained by the Metropolitan Elevated Railway Company and the other defendant as its lessee. And to avoid the issuing of an injunction restraining the use of the structure as'a railway, and for these terminal purposes, it was adjudged that the defendants should pay the sum of $67,000 as a compensation for the depreciation of the plaintiff’s property, caused by erecting, maintaining and using these structures in front of the plaintiff’s land on the southerly corner of Eifty-eighth street, and upon the westerly side of the block between Eifty-eigkth and Eifty-nintk streets; and that a further qiayment of the sum of $28,000 should be made to secure the right to maintain and operate the road in front of the plaintiff’s property between Forty-third and Forty-fourth streets.

That relief of this description may be adjudged in this action, follows from what was decided in the case of Henderson v. New York Central Railroad Company (78 N. Y., 423). And the correctness of that principle has not been denied by either of the parties •to this action. But it has been objected that each of these sums was inordinately large, and beyond the amounts which were justified by the evidence, as a compensation to the plaintiff for the erection of this structure and its future use and operation as a railway in front of the plaintiff’s premises. And the amounts allowed seem to be properly assailed in this manner.

That the plaintiff’s property has been diminished in value by the construction and operation of the elevated railway in the avenue, is a fact, concerning which the evidence leaves no serious ground for doubt. And that the upper part of the structure where the railway terminates, and the station has been constructed and maintained, very seriously affects the value of the plaintiff’s property situated in that vicinity, is equally as free from controversy. But the evidence which was talcén in the case was not wholly directed to prove the difference between the value of these parcels of property without these railway structures in the avenue, and as they have been affected by the construction and maintenance of the elevated railway in this manner. That, as the rule has been announced and followed, would be the just criterion for ascertaining what sums of money should be paid to the plaintiff for this diminution in the value of its property. (Matter of Utica, etc., R. R. Co., 56 Barb., 456.) And that, together with the damages already sustained by the plaintiff by reason of the construction and operation of the railway and the maintenance of the station, would be the relief the plaintiff was entitled to by way of fully determining the controversy presented by the action. (Drucker v. Manhattan R. Co., 106 N. Y., 157.)

But upon the trial of the action this rule was ado wed to be exceeded and transcended in the evidence which the plaintiff was permitted to give. Bor by the witness O’Reilly proof was taken as to the possible uses which might be made of the plaintiff’s property by the erection of expensive buildings upon it, and the amount of income which might be expected to be derived from those improvements. And further evidence was taken as to the ability of the ■plaintiff to make use of its property for those objects. This evidence was objected to as incompetent and irrelevant and immaterial, and also on the further ground that the witnesses were not competent to give his opinion on this subject. But the latter part of the objection is clearly not sustainable, for the reason that the witnesses, who gave this evidence were shown to be competent to express their judgment upon the valuation of the property in dispute. Certainly the evidence went so far as to exclude this as a ground of’ error cajiable of being alleged in support of an appeal. (Bedell v. Long Island R. R. Co., 44 N. Y., 367; Slocovich v. Orient Mut. Ins. Co., 108 id., 56, 62.) As to the residue of the grounds of objection,, it has been urged that they are insufficient to present the question, of the inadmissibility of this testimony. But as the evidence which was given upon this subject was both irrelevant and incompetent, by way of a direct-examination, the objections seem to be sufficient, although under other circumstances they might not be so, if the intimation contained in the decision of the case of McGean v. Manhattan, Railway Company (27 N. Y. St. Rep., 337) is to be followed. The witness Fox, who was afterwards examined upon this capability of the use of the property, was asked to what it might be advantageously and economically devoted if the elevated railway were not, there. And to this inquiry the further objection was added that it was speculative. And this latter objection did specifically indicate the ground on which his evidence should have been rejected, even if that was not disclosed by the other part of the objection. This-was overruled and the defendants’ counsel excepted. And the witness was allowed then to proceed and give evidence as to the uses-which could be made of the property in very much the same manner, though with greater brevity, than the other witnesses who had been interrogated upon the same subject. If, therefore, the preceding objection was too general to be of service to the defendants, this additional objection to the taking of the same evidence from this witness relieved the case of that deficiency. For the evidence was speculative, and should not have been received, as it must be assumed to have been, to influence the action of the court in the disposition of so much of this controversy as required the amount to be determined which the defendants should pay for the continuation of the structure and the use of it as a railway. The evidence in this manner received was prejudicial to the defendants’ rights, and. its introduction in the case may be assumed to have been the cause of tlie large allowances directed by the judgment to be paid by the defendants.

The plaintiff was also allowed to prove by the witnesses, Mead,. Macy, O’Reilly and Waterlow, the manner and extent to which other property was deemed by them to have been injured by the construction and operation of this elevated railway. This property was in no manner connected with that owned by the plaintiff.. It was situated upon the same avenue, but owned by other and different owners; and what injury had been sustained by these-parcels of property in the construction and use of the railway had no possible connection with either piece of property owned by the-plaintiff. This evidence was objected to by the defendants’ counsel as immaterial, irrelevant and incompetent; and it very clearly was irrelevant to every inquiry included within the issues framed in this action; and the exceptions taken to the decisions of the court allowing this class of evidence to be given were well taken. "What this evidence tended to prove was the injuries and losses sustained by other persons; and those injuries and losses may have been precisely what they were stated to have been, without in any manner advancing or affecting the right of the plaintiff to the compensation claimed in its behalf.

This evidence introduced into the controversy distinct and independent subjects, in no way, either directly or indirectly, relating to the issues in this action; and the exceptions which were taken to the decisions allowing it to be given appear, therefore, to be well founded. Other evidence was also given concerning the misconduct of the men who were employed in the service of the company, and to other annoyances resulting from the operations of the railway, not affecting the light, air or approach to the property bounded upon the avenue, or to any disturbance or interference with it raising from the acts of the defendants, or the construction of the railway and stations, or their use or operation in the business of the railway itself.

These rulings, and the evidence permitted to.be given by them,, affect the foundation upon which this judgment has been placed, and may well be supposed to have in part resulted iu the very large allowances directed by the court to be paid to avoid the issuing of a-permanent injunction.

It has been urged that the determination of the court fixing the •amounts to be paid is not final upon the defendants, and that they may still proceed, under the statute of the State, to appropriate these easements to the uses and purposes of their railway, and for that reason the judgment itself is not appealable. The authorities which have been cited in support of this position have been consulted but not found to maintain this objection. But, on the ■contrary, title é of chapter 12 of the Code of Civil Procedure has provided generally for an appeal from a final judgment recovered u,t the Special Term, and this is such a judgment.

Upon the whole case this judgment should be reversed and a new trial ordered, with costs to the defendants to abide the event.

Van Brunt, P. J., and Brady, J., concurred.

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


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    MICHAEL BRENNAN, Appellant, v. THE BRIGHTON BEACH RACING ASSOCIATION, Respondent.

      Pool selling at horse races, legalized by chapter 479 of 1887.
    Tlie act chapter 479 of the Laws of 1887, subjecting to taxation associations engaged in conducting horse races, and allowing such races to take place for a period not exceeding thirty days in each year, although it does not expressly declare that pool selling at such times and places shall be legal, inferentially shows the intention of the legislature to have been to legalize such sales.

      Jerome Pwk Oompa/ny v. Board of Police (11 Abb. N. 0., 342) distinguished.
    Appeal by the plaintiff from a judgment entered, after a trial .at the New York Circuit before the court and a jury, in the office of the clerk of the county of New York on the 23d day of March, 1889, dismissing the plaintiff’s complaint, with costs.

      Fromme Brothers, for the appellant.

      Thomas E. Pearsall, for the respondent.
   Daniels, J.:

The defendant is stated in the complaint to have been a corporation, organized under the laws of this State, and lawfully engaged in conducting a race course at Brighton Beach, in the county of Kings. This allegation was not denied by the defendant’s answer,, and the facts, therefore, so far as they are in this manner alleged, were admitted by it. It is further stated in the complaint, and the evidence directly tended to prove the truth of the statement, that on the 10th of August, 1887, at Brighton Beach, the defendant sold and delivered to the plaintiff twenty tickets, at the price of five dollars-each, upon a horse known as Elsie B., which, on that day, was entered to run in one of the races conducted by the defendant. And that in the race which afterwards took place this horse was the winner, entitling the plaintiff to receive upon his tickets the sum of 1765-out of the pools sold on that race. The proof which was given tended to show the purchase of the tickets by the plaintiff, on the-race grounds, from a person apparently engaged in the business and occupation of selling them, and his refusal to pay to the plaintiff the amount which, according to the tickets and the result of the: race, he had become entitled to receive. At the close of his evidence-a motion was made to dismiss the complaint upon the ground that the transaction was a gambling one and he could not recover. The court adopted that view of the case and dismissed the complaint, to which the plaintiff excepted. And whether this was the correct view to take of the law of the case is the only question to be considered upon the appeal, inasmuch as no other objection was raised to the right of the plaintiff to maintain the action.

What is stated to have taken place at the time of purchasing the tickets, and the amount payable thereupon in case of a successful termination of the race, was, in substance and effect, a bet or wager upon the speed of the horse. And under the statute of the State, preceding the enactment of the Renal Code, the contract in this manner intended to be made, was declared to be void. (2 R. S. [6th-ed.], 918, § 26.) This section of the act included all wagers, bets or stakes made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty or unknown, or contingent event whatever. And all such bets and stakes were thereby made unlawful, clearly including the case presented by the pleadings and proof in favor of the plaintiff. This remained the law of the State until • the enactment of the Penal Code, which, however, was not intended to and did not legalize such a transaction unless permitted by special laws. But so far as sections 351 and 352 affect bets and wagers and the selling of pools generally their illegality was not changed, but the punishment for violating these sections by bets or wagei’S made, or pools sold, was greatly increased in its severity. These sections provided and declared that:

Penal Code (§ 351): “ A person who keeps any room, shed, tenement, tent, booth or building, or any part thereof, or who occupies any place upon any public or private grounds within this State with books, apparatus or paraphernalia, for the purpose of recording or registering bets or wagers, or of selling pools; and any person who records or registers bets or wagers, or sells pools upon the result of any trial or contest of skill, speed or power of endurance, of man or beast, or upon the result of any political nomination, appointment or election, -or being the owner, lessee or occupant of any room, shed, tenement, tent, booth or building, or part thereof, knowingly permits the same to be used or occupied for any of these purposes, or therein keeps, exhibits or employs any device or apparatus for the purpose of recording or registering such bets ■ or wagers, or the selling of such pools, or becomes the custodian or •depositary for hire or reward of any money, property or thing of value staked, wagered or pledged upon any such result, is punishable by imprisonment for one year, or by fine not exceeding .$2,000, or both.”

Penal Code (§ 352): All racing or trial of speed between horses or other animals for any bet, stake or reward, except such as is allowed by special laws, is a public nuisance; and every person acting or aiding therein, or making or being interested in any such bet, stake or reward, is guilty of a misdemeanor, and,'in addition to the penalty prescribed therefor, he forfeits to the people of this State all title or interest in any animal used with his privity in such race or trial of speed, and in any sum of money or other property betted or staked upon the result thereof.”

And it was one of their prominent objects to produce the discontinuance of bets and wagers made in any form upon the speed or power of endurance of man or beast; and if they had been left undisturbed by the action of the legislature this action clearly could not be maintained. But a change was again made in the law, by • chapter 479 of the Laws of 1887, subjecting these associations to taxation upon their receipts; and by section 4 of the act prescribing a period during which racing with horses should be legal, and inferentially declaring during what time pools upon such races might be sold. By this section races have been allowed to be conducted on the grounds of the association for not exceeding thirty days in each year. And admission of the public to these races was allowed to be made. And the section then declares that such racing and all pool selling in this State shall be confined to the period between the fifteenth day of May and the fifteenth day of October, in each year, and all pool selling shall be confined to the tracks where- the races take place, and on the days when the races take place.” While this latter part of the section does not expressly declare that pool selling shall at the times and places mentioned become legal, it inferentially discloses the intention of the legislature to have been to legalize such sales. They are neither condemned nor forbidden, but they are regulated; and when these regulations were in this way prescribed it must have been intended by the law that the sales might be made, if that was done, within the restrictions of these regulations. There would have been no reason nor sense in declaring that the pool selling should be confined within the period mentioned, and at the place designated, unless it was intended to sanction the right of the association to make the sales. The effect of the provision is that sales of pools may be made between the fifteenth of May and the fifteenth of October, but they must be confined to the tracks where the races take place, and on the. same day as the races for which the sales may be made. And that this was intended to be so, is further sustained by a provision contained in the same section declaring that these two sections of the Penal Code should not apply to the grounds of the association during the days in each year in which the races have been in this manner authorized. These two sections of the Penal Code did allow the racing of horses by or under the authority of associations of this description when that was permitted by special laws. And then this section of the act of 1887 has for the period mentioned suspended even these sections of the Code, without restoring the preceding law, rendering them for the time mentioned in it inaxjplicable to such racing. And by proceeding further, and prescribing the regulations for pool selling, no other conclusion is left open for adoption than that the legislature intended to sanction these sales when made on the grounds of the association, and on the day of the race sold. And the evidence which was given by the plaintiff, and the other witness sworn on his part upon the trial, was such as to support the conclusion that the tickets purchased by him were pool tickets upon the racing of horses, and that they were purchased at the time and at the place this statute permitted that to be done.

The case of Jerome Park Company v. Board of Police (11 Abb. N. C., 342), is not applicable to this controversy, for that arose under the law as it existed in 1882, before the enactment of this later statute. As the law then stood this transaction would clearly have been unlawful and criminal. But as it has been changed by this section of the act of 1887, it was legalized at the time and place when these tickets are said to have been purchased.

The judgment should,’ therefore, be reversed and a new trial ordered, with costs to the plaintiff to abide the event.

Yan Brunt, P. J., and Brady, J., concurred.

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


author: Van Brunt, P. J.:

text:
    PATRICK JACKMAN, Respondent, v. FRANKLIN B. LORD, Appellant, Impleaded, etc.

      Motion to malee a complaint more definite and certain — a statement of the pari'ticula/i' acts of negligence not required — the proper remedy is by a bill of pa/rticula/i's.

    In an action brought to recover damages resulting to the plaintiff from an injury-in the public streets of the city of New York, the complaint alleged that the plaintiff was injured by being hit by some object thrown from the premises of the defendant by an explosion of gas thereon, which explosion was caused by the negligence of the defendant.

      Held, that a motion on the part of the defendant for an order requiring the complaint to be made more definite and certain, by setting forth what act of negligence, if any, on the part of the defendant, was claimed to have caused the explosion of gas alleged in the complaint, was properly denied.
    That the remedy, if any, of the defendant, was to apply for an order requiring plaintiff to furnish a bill of particulars setting forth the particular acts of negligence which he proposed to prove on the trial.

      Appeal by the defendant Franklin B. Lord from an order entered, in the above-entitled action, in the office of the clerk of the county of New York on the 30th day of December, 1889, denying a motion of the said defendant Lord that the complaint in said action be made more definite and certain by setting forth what act or neglect, if any, on the part of the defendant, is claimed to have caused the explosion of gas alleged in the third clause of the complaint.

      G. de F. Lord, for the appellant.

      Hermon II. /Shook, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover for injuries caused by an explosion, the plaintiff being at the time in the public streets of the city of New York. The complaint alleges the incorporation of' the defendant, The Consolidated Gas Company, and that the defendant Lord was, at the time of the explosion, the owner of the premises. No. 409 Grand street; that on the 16th of August, 1889, the-plaintiff was lawfully on the public highway in the city of New York known as Grand street, at the corner of Clinton, when be was-injured by being bit by some object thrown from said premises by an explosion of gas thereon, which explosion was caused by the negligence of the defendants, without any fault or carelessness on bis part, and that in consequence the plaintiff suffered damages for which he prayed judgment. A motion was made upon the part of the defendant Lord for an order requiring the complaint to be made more definite and certain by setting forth what act or neglect, if any, on the part of the defendant is claimed to have caused the explosion of gas alleged in the complaint. This motion was denied, and from the order thereupon entered this appeal is taken. It would appear that the object of the defendant’s motion was to compel the plaintiff ‘ to set out the evidence of the negligence which bad been alleged by bis complaint as against the defendants. It is sought to have bim specify in the complaint what act or neglect, if any, on the part of the defendants, is claimed to have caused the explosion alleged in the complaint.

It is not claimed that the complaint is deficient in allegations so as to be demurrable, but the evidence of negligence alleged iu the complaint is sought to be incorporated in the complaint for the avowed purpose of determining wbicb of the defendants might be considered responsible therefor, if either.

We think that the appellant has mistaken bis remedy, and that the complaint is sufficiently definite and certain; and if a proper case is made out to restrict the general allegations of the complaint, it should be by a bill of particulars, in wbicb the plaintiff might be compelled to state the particular acts of negligence wbicb be would offer to prove on the trial. We do not understand that where a general allegation in the complaint is sufficient to make a good cause of action'that the court can compel the allegation of specific facts leading to the general conclusions alleged in the complaint. This office is served by a bill of particulars, by wbicb a party, in a proper case, is apprised of the particular facts wbicb the plaintiff will seek to prove, and being so apprised cannot be surprised at the trial.

We think, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    FREDERICK B. WILSON, Respondent, v. EASTMAN & MANDEVILLE COMPANY, Appellant.

      Denial of knowledge or information sufficient to form a belief — will not be stricken out as sham — what answer will be.

    In an action to procure the sequestration of the property of a corporation, the defendant therein, and the disposition of the proceeds thereof among its creditors, the complaint alleged the recovery of a judgment against the defendant, the docketing of the judgment, the filing of a transcript, the issuing of an execution,’ the return of the same unsatisfied, and that said judgment remained unpaid and that the plaintiff was insolvent.
    The defendant, by its answer, denied that it had any knowledge or information sufficient to form a belief as to any of the allegations contained in the complaint, except that alleging the incorporation of the defendant, and that its principal place of business was located in the city of Brooklyn.

      Held, that as the answer set up a general denial of material allegations in the complaint the court had no power to strike it out as sham.
    That an answer can only be stricken out as sham where, by the allegations contained therein, it seeks to avoid the admission of the truth of the allegations of the complaint.
    Appeal by the defendant from so much of an order made at a Special Term, held at chambers in the city of New York, and entered in the office of the clerk of the couffiy of New York on the 30th day of January, 1890, as orders that the answer in the above-entitled action be stricken out as sham.

      W. B. Ellison, for the appellant.

      William Armstrong, for the respondent.
   Van Brunt, P. J.:

This action was brought for the purpose of procuring a sequestration of the property of the defendant corporation, and the division of the proceeds of the property amongst the creditors of the defendant, pursuant to the provisions of the Code. The complaint alleged the recovery of a judgment against the defendant in the City Court of New York, and the fihng of the transcript and the docketing of the judgment in the office of the clerk of the county of New York, and subsequently the filing of a transcript in the office of the clerk of the county of Kings, being the place where the principal business of the defendant was carried on, the issuance of an- execution to the sheriff of Kings county, and the return of said execution wholly unsatisfied, and that said judgment remained wholly unpaid -and that the defendant was insolvent.

The defendant, by its answer, denied that it had any knowledge or information sufficient to form a belief as to any of the allegations contained in the complaint, except that alleging the incorporation of the defendant and that its principal place of business was located in the city of Brooklyn. This answer was stricken out as sham, and from the order thereupon entered this appeal is taken.

The ruling of the court below was clearly erroneous. In the case of Wayland v. Tysen (45 N. Y., 281) it was expressly held that the court has no power to strike out as sham an answer setting up a general denial of any of the material allegations of the complaint. The answer of the defendant consisted of a general denial. It was in a form permitted by the Code. The allegations in the complaint were all necessary to its validity and, therefore, came distinctly within the provisions of the decision to which reference has been made. The only case in which an answer can be stricken ont as sham is where the allegations contained in the answer seek to avoid the admission of the truth of the allegations of the complaint.

Where a general issue is pleaded the right to strike out as sham has never existed.

The order should be reversed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Yan Brunt, P. J.:

text:
    ELVIRA J. BABCOCK, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.

      Notice of claim to be served on the comptroller of the city of New York under chapter 572 0/I886 — a notice, served in compliance with section 123 of chapter 410 of 1882, is insufficient.

    In an action to recover for injuries alleged to have been sustained by the plaintiff by falling upon one of the sidewalks in the city of New York, the complaint alleged that on the 30th day of April, 1888, the plaintiff presented, in writing,, to the comptroller the claim upon which the action was brought, and that more than three months had elapsed since said presentation, and that the comptroller had failed and neglected to pay the same; that the city of New York had a population of over 50,000; that the plaintiff had served on the comptroller thereof a notice that she claimed $5,000, because of the facts alleged in the complaint, and that the claim was presented in pursuance of section 123 of chapter 410 of the Laws of 1882.
    It appeared that the comptroller transmitted this notice to the corporation counsel requesting that he make an examination of the claim as provided by section 123 of said act.
    Upon the trial, a motion was made to dismiss the complaint, because of want of compliance with the requirements of chapter 572 of the Laws of 1886, which was granted.

      Meld, that the notice served was insufficient:

      Mrst. As it expressly stated that it was served pursuant to tlie requirements of the act of 1882, which required a different notice from that required by the act of 1880.

      Second. As it appeared that, although the notice came into the possession of the corporation counsel, yet it came there only for the particular purpose of an examination under section 123 of the act of 1882.

      Third. That the act of 1886 required a notice of intention to commence an action for the injuries received.
    Appeal by the plaintiff from a judgment, entered in the office of the clerk of the county of New York on the 24th day of January, 1890, in favor of the defendant, dismissing the plaintiff’s complaint.

      James M. Hunt, for the appellant.

      William II. GlcurTe,, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover for injuries alleged to have been sustained, by the plaintiff in falling upon one of the sidewalks in the city of New York because of certain snow and ice alleged to have been permitted by the defendants to accumulate thereon.

The complaint also alleged that on the 30th of April, 1888, she presented in wilting to the comptroller the claim upon which this action was brought, and that more than three months had elapsed since said presentation, and the comptroller had failed and neglected to pay the same.

The complaint also alleged that the city of New York has a population of over 50,000, and that the plaintiff served on the comptroller of the city of New York a notice to the effect that she claimed against the city of New York $5,000 because of the facts alleged in the complaint, and that the claim was presented to him in pursuance of the requirements of section 123 of chapter 410 of the Laws of 1882. This notice the comptroller transmitted to the corporation counsel with a note stating that the claim had been filed in his department and requesting him to detail one of his assistants to conduct such an examination of the claim as is provided by section 123 of the consolidation act.

On the 3d of May, 1888, the plaintiff served an amended notice of the claim demanding $10,000 damages instead of $5,000. This notice was also transmitted by the comptroller to the corporation counsel with a like request.

On the 17th of April, 1888, the comptroller served a notice upon the plaintiff requiring her to appear before him at the office of the corporation counsel to answer orally as to any facts relative to the justice of her claim, such notice being given pursuant to section 123 of the consolidation act.

Upon the action coming to trial a motion was made to dismiss the complaint because there was no compliance with the requirements of chapter 572 of the Laws of 1886, which provides that no action against any city having a population of over 50,000, for personal injury sustained by the negligence of such corporation, shall be maintained unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action, and of the time and place at which the injuries were received, shall have been filed with the counsel to the corporation within six months after the cause of action shall have accrued. This motion was granted., and from the judgment thereupon entered this appeal is taken.

It is urged, upon the part of the appellant, that there is nothing in the act of 1886 which prevents compliance with the provisions of both acts by a single notice, provided it be sufficiently full and is both presented to the comptroller and filed with the counsel to the corporation; and it is urged that as the act does not sj)ecify who shall do the filing, if the comptroller files the claim in the office of the corporation counsel, the provisions of the act are complied with. But the difficulty with this position of the plaintiff is that she did not pretend to comply with the requirements of the act of 1886 by the notice served on the comptroller. It is expressly stated that the notice is served pursuant to the requirements of the consolidation act, which is entirely different from the notice to be filed with the corporation counsel under the act of 1886. And it further appears that although the notice came into the possession of the corporation counsel yet it came for a particular purpose, namely, that the comptroller might exercise the power, conferred upon him by section 123, of examining the claimant in regard to the justice of her claim; and it was for the purpose of carrying on these proceedings that the corporation counsel was notified and was acting as the agent of the comptroller in conducting the examination. There was no attempt upon the part of the plaintiff to comply with the provisions of the act of 1886, and simply because the notice happened to come into the possession of the corporation counsel it cannot be claimed that there was any compliance with the act of 1886. And it may further be said, with justice, that the act of 1886 required a notice of an intention to commence an action for the injuries received. The notice served on the comptroller, and which came into the possession of the corporation counsel, contains no reference whatever to the commencement of an action. It is simply the presentation of a claim. Whether there was an intention to commence an action for the recovery of the amount claimed is in no wise expressed in the notice, and it cannot be successfully maintained that if a notice was served upon the corporation counsel simply that a person had a claim against the city, it is a compliance with the plain provisions of the statute that notice of the intention to commence an action must be contained in the notice served upon the corporation counsel.

Upon the whole case, therefore, it seems apparent that the judgment of the court below was right and should be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.