text:
    John J. Leonard and George Scofield, Respondents, v. Washington A. Whaley and Harry Taylor, Appellants, Impleaded with William K. Hammond.

      Contract — promise to turn over checks received from the United States government — it is not an assignment of the claim — specific performance thereof, compelled— effect of U. S. B. S. § 3477 — receiver.
    Upon the trial of an action brought to enforce the specific performance of a contract, it appeared that persons named Whaley and Taylor had contracted with the United States government to erect certain buildings for which certain other persons named Leonard Scofield and Hammond had furnished materials or performed labor; that Whaley and Taylor, having become involved, Leonard Scofield and Hammond entered into an agreement with Whaley and Taylor by which they agreed to finish the building, and Whaley and Taylor assigned to them the money or checks which might be paid to Whaley and Taylor by the government, and also promised that they would not receive the payment upon the contract except in the presence of their said creditors or some of them; that they w’ould attend in person at the quartermaster’s office at Willets Point, receive the payments or checks or drafts, and would immediately indorse and deliver them to their creditors; they further agreed that these promises might be specifically enforced in equity.
    The creditors completed the buildings, but Whaley and Taylor refused, at a time when the government quartermaster was about to draw checks for the amount due, to indorse and deliver such checks to the creditors.

      Held, that the creditors were entitled to a specific performance of the contract, and that this could be done without giving effect to the agreement as an assignment of a claim;
    That the agreement was not within the prohibition of section 3477 of the United States Revised Statutes, forbidding the assignment of claims against the government;
    That that section applied only to claims that could be presently made and disputed, and should be given effect only so far as it might be invoked by the government to prevent a prejudice to its rights;
    That while it was perhaps unnecessary to appoint a receiver of the funds, such appointment furnished no just cause for criticism.
    Appeal by the defendants, Washington A. Whaley and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 20th day of February, 1895, nunc pro tunc as of July 10, 1891, upon the decision of the court rendered after a trial at the Kings County Special Term.

      The action was brought by creditors of the defendants, Washington A. Whaley and Harry Taylor, to obtain certain payments which the defendants had agreed that such creditors should receive from the United States government, as is more particularly stated in the opinion.
    The money being in the hands of the quartermaster, the plaintiffs demanded that it be paid to them as the principals of said Whaley and Taylor, and such request being refused the plaintiffs commenced this action, praying that the plaintiffs and the defendant Hammond might be adjudged to be solely entitled to the payment in question, and that the defendants Whaley and Taylor might be directed to indorse and deliver over to the plaintiffs and said Hammond any and all checks that might be delivered to them for or on account of said payment, and to execute all usual and proper vouchers therefor.

      Horatio O. King and II. B. Titus, for the appellants.

      Josiah T. Marean, for the respondents.
   Pratt, J.:

This is an appeal from a judgment entered upon a decision rendered after a trial before the court without a jury. The facts appear to be as follows:

Whaley and Taylor, the appellants, had a contract with the United States government for the erection of two buildings at Willets Point, and the respondents, Leonard and Scofield and Hammond had each furnished them materials or performed labor for them in and about the erection.

Whaley and Taylor became involved, and were unable to go on. They then owed Leonard $3,741.67, Scofield $656.75, and Hammond $2,500. These three creditors then entered into the agreement in question with the appellants, Whaley and Taylor, whereby they agreed to finish up the buildings, and the appellants assigned to them, not the right to receive the payments coming from the government under this contract, but the proceeds of such payments when received, i. e., the money or checks which might be paid to them by the government, and they further made these executory promises that they would not receive payments except in the presence of the respondents and the defendant Hammond, or some of them; that they would attend in person, upon notice to do so, at the quartermaster’s office at Willets Point, and receive payments or drafts, and would immediately indorse and deliver the same over to the respondents and the defendant Iiammond.

They further agreed that such promises might be specifically enforced in equity, or by injunction, or other appropriate process. The respondents and the defendant Hammond were to apply the moneys received by them to their reimbursement for the expense of completion. The value of their services were also to be retained, and the remainder applied pro rata to the old debts above mentioned, and any residue was to be paid over to the appellants.

The respondents and the defendant Hammond completed the buildings; all payments except the final one were collected by the appellants and paid over to the respondents and the defendant Hammond, and applied by them towards the expenses of completion, except some portion thereof, which they, as matter of grace, paid to the appellants, and a considerable sum, as yet unascertained, is still due the respondents and the defendant Hammond, besides the old debts, which are wholly unpaid.

The final payment of $18,350 was due from the government, and the money was in the hands of the quartermaster at Willets Point on November 10, 1893, ready to be paid. All parties attended on that day at the office of the quartermaster, who was about to draw and deliver checks for the amount due, when the appellants declared that they would not indorse and deliver them to the respondents as agreed.

The court below gave no effect to the agreement as an assignment, but directed a specific performance of the contract.

This was in accordance with the contract, as there was contained. in it an executory promise to immediately indorse and deliver over all checks which might be received, and the contract was one that in equity might be specifically enforced. This could be done for the protection of the plaintiff without giving any effect to the agreement as an assignment of the claim.

The appellants claim that the court below had no jurisdiction of the subject matter of the action, and that the contract of assignment was void as coming within the prohibition of section 3477 of the United States Revised Statutes.

We do not think the matter to be fully within the purview of this statute.

The intent of the statute was for the convenience and protection of the government, and not as a shield for those who would break their contracts and defraud their creditors.

It applies only to claims that can be presently made and disputed (Hobbs v. McLean, 117 U. S. 569-575), and will be given effect only so far as it may be invoked by the government to prevent a prejudice to the rights of the government. (Bailey v. U. S., 109 U. S. 432; Freedman Saving Co. v. Shepherd, 127 id. 494, 505, 506; Goodman v. Niblack, 102 id. 556.)

In the latter case the court in rendering the opinion said the sections were passed in order that the government might not be harassed by multiplying the number of persons with whom it had to deal, and might always know with whom it was dealing until the contract was completed and settlement made. Their purpose was not to dictate to the contractor what he should do with the money received on his contract after it had been performed.

This case seems to render nugatory the authority of Spofford v. Kirk (97 U. S. 484) as favoring the contention of the appellants.

This judgment in no manner interferes with any government officer, but only orders the defendants to turn over to the plaintiffs, as they had agreed, the final payment when paid to them.

Perhaps it was not necessary to appoint a receiver of the fund, but we see no just cause of criticism in that, as it protects the rights of all parties, and is really a favor to the appellants.

The judgment is just, and in the interests of good morals as pi’eventative of an outrageous fraud, and should be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Pratt, J.: Brown, J.:

license: Public Domain

text:
    The People of the State of New York ex rel. Patrick H. Corrigan, Respondent, v. The Mayor and Common Council of the City of Brooklyn, Appellant.

      Veterans and volunteer firemen — protected against removal from office — pwpose of the statute — change in the name of an office and a devolution of its duties upon another does not justify a dismissal.

    A veteran, and one who is also a volunteer fireman, is protected from removal from an office which he holds under a city government, except for cause and after a hearing.
    As the object of the statute is to continue in office faithful, trustworthy and competent persons, it would not be a sufficient cause for removal that another person could be procured who was willing to serve at a lower rate of payment. Where there has been an honest and substantial abolition of the office held by a veteran or by a volunteer fireman, he has no remedy when he is dismissed; but where there has been merely a change of names and a devolution of the duties of the office upon a new appointee, a dismissal of the veteran and volunteer fireman, in a case where no charges have been made against him and no hearing upon charges has been granted him, cannot be justified.
    In a proceeding taken by a person who was a veteran and also a volunteer fireman for reinstatement to a position held by him, it appeared that the common council of the city of Brooklyn in 1886 appointed the relator keeper of the “Truant Home,” and that he was called and known as “superintendent;” that in 1895 he was removed from his position under a resolution of the common council, by which it was stated that the position of superintendent was abolished “for economical reasons,” and which further stated that the duties formerly performed by the superintendent should be devolved upon Eugene Martyn, a teacher of said home, and that John Eiseman should be appointed, janitor. It appeared that the relator wTas the janitor of the “ Home,” and that-the duties now performed by Eiseman were performed under his direction and were within his office.

      Held, that the relator was entitled to be reinstated as janitor.
    Appeal by the defendants, The Mayor and Common Council of the City of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of July, 1895, directing the defendant to reinstate the relator in his position as keeper of the Truant. Home, and also from an order, entered in said clerk’s office on the 13th day of August, 1895, denying the defendants’ motion for a reargument of the original motion, and resettling the order granted on June 21, 1895, and the peremptory mandamus therein allowed.

      A. G. McDonald and H. O. Wood, far the appellant.

      Gharles J. Patterson, for the respondent.
   Pratt, J.:

This is an appeal from an order granted at Special Term directing a peremptory writ of mandamus to issue commanding the defendant to reinstate the relator in the position held by him, and also from an order denying the motion made by defendant for a reargument of the original motion.

We think the opinion filed below at Special Term fully answers the contention made by the appellant; and we, therefore, recommend that the same be affirmed upon that opinion; and also that the decision upon the motion for a reargument be affirmed, with costs.

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

The opinion of the Special Term was as follows:

Brown, J.:

On March 26, 1886, the relator, by a resolution of the common council, was appointed keeper of the Truant Home.” Thereafter he was called and known as “ superintendent.”

On January 3, 1895, he was removed from such position by a resolution of the same body, which is as follows:

Desolved, That the position of superintendent and farmer at the Truant Home be and the same hereby are abolished from and after the first day of May, 1895, for economical reasons, and that the incumbents of the said several positions be, from and after said date, dismissed for the same reasons.

“ Desolved, That the duties heretofore performed by the superintendent at the Truant Home be, from and after the first day of May, 1895, devolved upon Eugene Martyn, a teacher of said home.

Desolved, * * * That John Eiseman be and he hereby is appointed janitor of the Truant Home, and that he receive for his services as such janitor the sum of four dollars per day. * * * ”

The relator, being a veteran of the war and also a volunteer fireman, was protected from removal except for cause shown after a hearing had. (Laws of 1888, chap. 583, tit. 22, § 9; Laws of 1892, chap. 571.)

The purpose and force of statutes of the character of those invoked by the relator have been set forth and explained by the Court of Appeals in People ex rel. Munday v. Fire Commissioners (72 N. Y. 445), and the statutes referred to have recently been applied in several cases before this court.

The intent of these and similar statutes, as was said in the case cited, was to continue in the subordinate but important positions of the city government those who had proved themselves faithful and trustworthy as well as competent to discharge the duties of their stations; ” and the cause assigned for removal must be personal to the incumbent of the position.

An officeholder has, however, no right to have the office maintained for his benefit, and hence he may be removed when the office is abolished, or when the appropriation for payment of the salary of such office is exhausted. But, as was said by Justice Cullen, in the case of the clerks in the city clerk’s office, to deprive a person of his employment by the abolition of his position, the abolition must be real and substantial, a'nd not formal and nominal. Applying these rules to this case, the facts stated in the moving papers may be examined.

The resolution of the common council must be read as a whole. It abolished the office of keeper, and created that of janitor. It stated that this was done for economical reasons.” If the effect of this resolution was to substitute one man for another in the performance of the same duties at a reduced salary, it would, without doubt, fall within the prohibition of the statute, unless the incumbent refused to accept the reduced jiay.

The object of the statute ’being, as was said by the Court of Appeals, to continue in office faithful, trustworthy and competent persons, it would not be a sufficient cause for their removal that another person could be procured who was willing to serve at a lower rate of pay. The incumbent should have an opportunity to remain in office at the reduced salary, and thus the “ economical ” spirit would prevail, and the city retain an experienced and faithful servant. But to remove an incumbent without a hearing because the appointing officers liad determined to reduce the salary of the office, would be to defeat absolutely the plain purpose and intent of the law.

The decision of this case, therefore, rests on the determination of the question whether there has been an honest and substantial abolition of the office, or whether there has been merely a change of names and a devolution of the duties of the office upon a new appointee. So far as there is any conflict in the facts of the case upon this motion, those stated in the opposing affidavits must be taken as true. (People ex rel. Port Chester Savings Bank v. Cromwell, 102 N. Y. 477; Code Civ. Proc. § 2010.)

By the resolution of the common council, the duties of the relator were, after his discharge, to be performed by Eugene Martyn, a teacher of the said home.

The relator swears that his duties were as follows: It was my duty to make requisition for supplies for said home, and these were furnished through the department of city works under contracts made by that department; I received all supplies and certifled to that department the correctness of all bills for the same; I also certified to the monthly pay roll of the institution, which contained the names of the employees of the home, and the sums due each for their work; there was a teacher in said home named Eugene Martyn, and an assistant teacher ; these two teachers were appointed by the common council of the city of Brooklyn; the other employees of the said home are enumerated in a schedule hereto annexed and marked c A,’ and these latter were employed by me under the direction of the committee of the common council having the matter of the home in charge.

“ I directed and superintended the labors of all employees, except the teacher and assistant teacher, and even these latter reported to me at their coming and going. I was in general charge and custody of the home and its inmates.”

lie further swears: “ Since my departure from said institution, John Eiseman has entered said home and has performed that part of my duties which consisted in the general charge of the inmates and employees of the said home, which is by far the largest part of said duties, while Eugene Martyn, said teacher, has done that part which consisted of making requisitions for supplies, receipting for the same and certifying bills and pay rolls.”

Eugene Martyn swears : “ That the statement in the relator’s affidavit, contained on the 4th page thereof, ‘ that on the 9th day of May, 1895, John Eiseman was appointed by the common council in place of said relator, and is now performing the duties formerly performed by him,’ is untrue; deponent says that during the superintendency of the said Corrigan that the duties that would naturally devolve upon a janitor of the institution were rarely, if ever, performed by the said superintendent; that the work may have been done under his direction, but was usually performed by the laborers or the boys; that the only work the superintendent did during his superintendency was the making of requisitions for supplies, certifying to the monthly pay rolls of the institution and the hiring of domestic servants; that after the discharge of the said relator, pursuant to the resolution of the common council, as set forth in affidavit of .said relator, the aforesaid duties devolved upon deponent and have ever since said time been performed by deponent.”

Henry Vollmer, a member of the common council, swears : “ That the statement in the relator’s affidavit, contained on the 4th page ■thereof, ‘that on the 9th day of May, 1895, John Eiseman was appointed by the common council in place of said relator, and is now performing the duties formerly performed by him,’ is untrue; deponent says that during the superintendency of the said Corrigan that the duties that would naturally de vol ve upon a janitor of the institution were rarely, if ever, performed by the said superintendent; that the work may have been done under his direction, but was usually performed by the laborers or the boys; that the only work the superintendent did during his superintendency was the making of requisitions for supplies, certifying to the monthly pay rolls of the institution and the hiring of domestic servants ; that after the discharge of the said relator, pursuant to the resolution of the common council, as set forth in affidavit of said relator, the aforesaid duties devolved upon deponent, and have ever since said time been performed by deponent.”

It will be observed that the quotations from the affidavits of Marty n and Yollmer are almost identical in language, and that each swears he is performing the duties performed by the relator during his incumbency of the office. Of course both affidavits cannot be true, as one expressly contradicts the other, and if I was permitted to determine the facts of the case, I should reject both of them.

Martyn’s affidavit is, however, consistent with the resolution of the common council which devolved the duties of the office upon him, and the relator does not deny that a part of the duties of the office formerly held by him are now performed by Martyn. But there is no substantial contradiction that the relator was the janitor of the home. It is conceded that the duties now performed by Eiseman were performed under the direction of the relator. He was originally designated keeper of the home. Afterwards he became known as superintendent, and it is not denied that he had general charge of the institution, and that the duties of janitor were within liis office. The common council could have devolved some of his duties on subordinate officers, or divided them and given a portion to a new appointee, but as long as the relator was willing to perform any part of the duties originally belonging to the office at such salary as the common council should fix, he was protected from removal, except for cause and after a hearing. Such construction only will give due effect to the intent of the law. The relator is entitled to be reinstated as janitor, and an order may be entered accordingly.


author: Dykman, J.:

text:
    The People of the State of New York, Respondent, v. The Beveridge Brewing Company, Defendant. William G. Hunter, Appellant.

      Receivers —■preferred claims of ‘ ‘ employees ” — a bookkeeper is included.

    The statute, chapter 376 of the Laws of 1885, which gives a preference to the wages of employees, operators and laborers, and directs that their claims shall be first paid by the receiver of an insolvent corporation, should receive a liberal construction
    The word “ employee,” used in the statute, has a wider significance than the words “ laborers and operatives.”
    A bookkeeper, employed by a corporation merely to keep its books, falls directly within the class of persons whom the statute was designed to protect.

      {Matter of Btryker, 73 Hun, 337, disapproved.)
    Appeal by William G. Hunter from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 29th' day of July, 1895, adjudging that the appellant was not of the grade of workmen designed to be protected by chapter 376 of the Laws of 1885, denying payment of his claim under said act, and decreeing that his claim was that of a general creditor.

      M. H. JIwseKberg, for the appellant.

      T. F. IIa/neoel&, Attorney-General, for the respondent.

      Benjamin M. Fowler, for the defendant.

      A. 8. & W. F. Gassedy, for the receiver.

      F. A. Brewster, for the creditors.

       In this and the following cases in this department, the decisions were handed down December 37, 1895.— [Rep.

   Dykman, J.:

This is an appeal from an order made at Special Term, prohibiting the receiver of the defendant, an insolvent corporation, from paying the wages due William G. Hunter, its bookkeeper, as a preferred claim under chapter 376 of the Laws of 1885.

The action was brought to dissolve the Beveridge Brewing Company as an insolvent corporation, and judgment was entered directing such dissolution, and appointing a permanent receiver thereof.

On the 8th day of July, 1895, the receiver applied to the court for authority to pay the claims due for wages in full by virtue of the provisions of chapter 376 of the Laws of 1885, and by the order granted on such application authority was conferred upon the receiver to pay the wages of all the employees excepting those due the bookkeeper, and he has appealed from so much of the order as provides that he shall not be paid his wages, and finds and decides that he is not of the grade of workmen designed to be protected by the act in question.

The statutory provision is as follows: Where a receiver of a corporation created or organized under the laws of this State and doing business therein, other than insurance and moneyed corporations, shall be appointed, the wages of the employees, operatives and laborers thereof shall be preferred to every other debt or claim against such corporation, and shall be paid by the receiver from the moneys of such corporation which shall first come to his hands.”

The word “ employees,” as used in this statute, has a broad and comprehensive signification, and includes all persons who are employed. It is derived from the French word “ employe,” and, lexically, embraces any one who is employed. Neither construction nor interpretation can make it mean or signify' any other thing or describe any other person, or exclude any one who is employed, from its scope and operation. The bookkeeper Hunter,, the. appellant, was employed by the company at a salary of $100 a month to keep its books. He, therefore, falls directly within the class of persons whom the statute was designed to protect, and it requires a strained and unnatural construction to exclude him from the benefits thereof. The decision of the Special Term was doubtless based upon the decision in the Matter of Stryker (reported in 73 Hun, 327), which the judge did not feel at liberty to disregard.

While it must be admitted that the Stryker case is a decision in favor of the respondent, we think the statute must be allowed a much broader construction than it received in that case.

The facts in the two cases cited in the Stryker case (Wakefield v. Fargo, 90 N. Y. 213, and People v. Remington, 15 Hun, 331) as authority for the conclusion there reached are not sufficiently analagous to this case to control us. Wakefield’s case arose under chapter 10 of the Laws of 1818, where the controlling words are “laborers, servants and apprentices,” all of which are words of narrow, precise meaning. The Remington case was unlike this in its facts. There the claims were made by the superintendent and the attorney of the company.

In our view the construction and application which the statute in question received in the case of Brown v. The Fence Company (reported in 2 Hun, 151) is much more consonant with the intention of the Legislature, as collected from the statute, than that which was given to it-in Stryker’s case.

The meaning of the word employee when used in similar statutes received careful consideration in the case of Gurney v. The Atlantic, etc., Railway Gompamy (58 N. Y. 358).

The claim there was for the professional services of a lawyer, rendered in connection with litigations relating to the railroad company, and Chief Judge Church said in that case: “It is manifest that, literally and lexically, the claimant was an employe of the company; that is, he was employed by and rendered important service for them. So the service rendered was in a sense in connection with the company’s railways; that is, the services related to the railway and its interests and business.”

After noticing and considering three cases, he further said : “ It will be observed, in the first place, that the word ‘ employe,’ used in the order, is not found in any of the statutes involved in these cases. This is a word of more comprehensive signification than laborers and operatives, and that a contractor is in no proper sense a servant, but in many respects an independent party, and that a secretary is not a servant within the ordinary meaning of that word, but is an officer, recognized by law as such, seems manifest and plain enough.”

In the same case Judge Allen said: “All ‘laborers’ and all ‘employes’ of the railway corporation, who have ‘actually done service in connection with that company’s railways,' are embraced in the terms used. None are excluded in terms or by implication, and all who come within the description are entitled to the benefit of the order. In the absence of any intent apparent on the face of the order to discriminate between different classes of ‘ employes ’ or different kinds ‘ of service,’ the court cannot confine it to a single class, or to a particular service. The term ‘employe’ is the correlative of ‘ employer,’ and neither term has either technically or in general use a restricted meaning by which any particular employment or service is indicated. The terms are as applicable to attorney and client, physician and patient, as to master and servant, a farmer and day laborer, or a master mechanic and his workman. To employ is to engage or use another as an agent or substitute in transacting business, or the performance of some service; it may be skilled labor or the service of the scientist or professional man as well as servile or unskilled manual labor.”

There is no reason why any person, who comes within the terms of the statute, should be excluded from its beneficent protection.

The statute prescribes no distinction between different classes of employees, and the person employed to keep the books labors with his hands, and contributes no more skill or experience than many skilled laborers.

We discern no reason for discrimination against the appellant, and the order should be reversed, with ten dollars costs and disbursements, and an order granted for the payment of the money due him as a preferred claim under the statute.

Pratt, J., concurred; Brown, P. 3\, not sitting.

Order, so far as appealed from, reversed, and receiver directed to to pay appellant’s claim, with ten dollars costs and disbursements, payable out of the fund.


author: Dykman, J. : Gaynor, J. : Gaynor, J.:

text:
    The People of the State of New York ex rel. Edward M. Goring, Appellant, v. The President and Board of Trustees of the Village of Wappinger’s Falls, Respondent.

      Mandamus — where aperemptoi'y writ is granted no damages can hereeoveredas for a false return — when damages can he recovered — what is the “final order ”— Code of Civil Procedure, §§ 2082, 2088, 2088.
    Where a person applies for a peremptory writ of mandamus to compel the president and board of trustees of a village to recognize him as the duly elected police justice of the village, and, there being no question of fact raised, the writ is granted in the first instance, he is not entitled to an assessment of damages against the village officers.
    The recovery of damages in such a proceeding by mandamus is predicated upon a false return, and where a peremptory writ is granted in the first instance, because no question of fact is raised, there can be no false return, and no cause of action can accrue to the relator for damages arising from such a return.
    Under the Code of Civil Procedure, where an issue of fact is raised by a return to an alternative writ of mandamus, it is triable by a jury, and the relator is entitled to a verdict, provided he would have been entitled to it if he had brought an action to recover damages for a false return; and, if he so elects, he may, at the same time, recover the damages which he might have recovered had he brought such an action.
    The “final order,” described in section 2082 of the Code of Civil Procedure, is the final judgment upon the trial of an issue of fact raised by a return to an alternative writ of mandamus, or of an issue of law raised by a demurrer to the writ, or to the return thereto, and such a “final order” is a prerequisite to an assessment of damages.
    No “final order” can be made in a case where a peremptory writ was granted in the first instance.
    Appeal by the relator, Edward M. Goring, from an order of the Supreme Court, made at tbe Kings County Special Term and ■entered in the office of the clerk of the county of Dutchess on the 4th day of September, 1895, denying his application for the assessment of damages against the respondent.
    The relator having applied for a peremptory writ of mandamus to compel the respondent to recognize him as the duly elected police justice of the village of "Wappiuger’s Falls, such writ was granted in the first instance, there being no question of fact raised. The order having been affirmed at General Term and also by the Court of Appeals (114 N. Y. 616), the relator applied to theroo-urt for an assessment of damages against the respondent.

      Bernard J. Tvrmey, for the appellant.

      Frederic Barnard, for the respondent.
   Dykman, J. :

This is an appeal from an order denying the application of the relator for an assessment of damages in the mandamus proceeding instituted by him against the defendant.

The appeal is destitute of merit and the order should be affirmed on the opinion delivered by the judge who made the order, with ten dollars costs and disbursements.

Brown, P. J., and Pratt, J., concurred.

Order affirmed, with ten dollars costs and disbursements, on the opinion of the Special Term.

The opinion of the court below was as follows:

Gaynor, J. :

The relator cannot recover damages herein. At common law when an issue of fact was raised by a return to an alternative writ of mandamus, such issue could not be tried in the mandamus proceeding. The return was conclusive until falsified, and the only way to falsify it was by judgment for plaintiff in' an action by the relator for damages for a false return. If the relator prevailed in that action, he not only got judgment for his damages, but was also entitled to have a peremptory writ of mandamus issue.

But this method being too dilatory, statutes were enacted that the issue of fact should be tried in the mandamus proceeding itself, and that 'if the relator succeeded he might have assessed therein the same damages which he could recover in an action for a false return (Bacon’s Abr., Mand. K.) And this is the method prevailing in this State. An issue of fact raised by a return to an alternative writ is triable by a jury and the relator is entitled to a verdict in case he would be entitled thereto if he had brought an action for damages for a false return (Code Civ. Proc. § 2083); and if he so elect he may at the same time recover the damages which he could recover in such an action. (Code Civ. Proc. § 2088.)

In this case there was no false return. On the contrary, a peremptory writ was granted in the first instance, there being no question of fact raised, and hence, the relator having no cause of action for damages for a false return, there could be no such damages to be assessed.

The application is denied, without costs.

Gaynor, J.:

The questions raised upon the reargument were considered in the first disposition of the case. In this case the peremptory writ was granted in the first instance. Therefore, there was and could be no “ final order ” herein. The final order is the “ final judgment” upon the trial of an issue of fact raised by a return to an alternative writ, or of an issue of law raised by a demurrer to such writ, or to the return thereto. (Code Oiv. Proc. § 2082.) “ Where a return has been made to an alternative writ,” the court, “ upon making a final order,” may award the same damages, if any, which the relator might recover ” in an action upon such return as false. (Code Oiv. Proc. § 2088.) This same section continues, that if the trial be of an issue of fact (i. e., the issue raised by a return to an alternative writ), the relator, if he so elects,” may have such damages assessed upon the trial thereof; and that “ where he is entitled to a final order for any other cause ” (which could only be upon the trial of an issue of law raised by demurrer to an alternative writ or to the return thereto, as we have seen), “ he may require them ” (i. e., “ the same damages ” which he could recover in an action for a false return) “ to be assessed as in an action.” Now, in this case, first, no “ final order ” was -or could be made, and, therefore, no such damages could be assessed ; second, if the order allowing the peremptory writ in the first instance could be deemed the “ final order,” it is now too late to assess the damages in this proceeding, as they had to be assessed before the final order was made, the relator having to elect ” before it was made whether he would have them assessed in the mandamus proceeding, or have recourse to liis action for a false return (Code Civ. Proc. § 2088); and, third, as no action for damages for a false return could be maintained by the relator, there could be no damages to assess herein, for the fact that the relator may have a right to recover damages in some other form of action does not give him the right to assess the same here.

The motion for a reargument is denied.


author: Dykman, J. :

text:
    Steven Bosko, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.

      Negligence — verdict against the weight of evidence — signal immaterial if it would not home prevented the accident.

    Where an action is brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, and the plaintiff's description of the manner in -which the accident occurred is not supported by any testimony other than his own, and six witnesses for the defendant testify to admissions of the plaintiff tending to show that the accident occurred in an entirely different manner, it is the duty of the court to set aside a verdict in favor of the plaintiff.
    Where the plaintiff testifies that the accident was caused by the fact that he caught his foot in a switch and could not pull it out in time to escape an approaching train, and there is nothing to show that any signal given from the train would have prevented the accident, it is not material that no signals were given indicating its approach.
    Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 25th day of April, 1895, upon the verdict of a jury rendered after a trial at the Queens County Circuit, and also from an order entered in said clerk’s office on the 2Yth day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes:

      Hamilton Odell and Hamnond Odell, for the appellant.

      F. W. Gatlin, for the respondent.
   Dykman, J. :

This is an appeal by the defendant from a judgment in favor of the plaintiff, entered upon the verdict of a jury rendered after a trial at the Circuit and from an order denying the nlotion of the defendant for a new trial upon the minutes of the court.

The facts were furnished by the plaintiff in his testimony as follows: He says that on the 10th day of October, 1894, he was a passenger on one of the trains of the defendant from Scranton to Washington, New Jersey; that he took the train from the former to the latter place between three and four o’clock in the afternoon, and arrived at Washington about seven o’clock in the evening; that he left the train at Washington, -where he says he saw a man at the station, of whom he inquired if lie could remain there over night; that he followed the road the way the man told him and went toward Port Colden ; that he came to a railroad crossing upon the public highway and followed the road for a while and looked up and down the rails and did not see or hear any train; that he saw a beaten path leading across the tracks and started to walk along such path; that when he had crossed the east-bound track going toward the west-bound track his foot became caught in the switch and he could not pull it out; that the train came and struck him and carried him about ten or fifteen feet distant from the place where he was, struck. His left leg was broken and subsequently amputated.

■On his cross-examination he said : “I came to the track after the-beaten path, and then I stepped on a sort of a plank, or a sort of a bridge, there crossing the roadway. There were four tracks, two tracks there. I had crossed the first two tracks, east-bound tracks,, before I was struck.”

He further said that he had been advised that there was a crossing there, and that he wanted to cross at that place; that there were some people crossing at that point, and he thought he would cross there himself.

-“Q. Was this a country road ? A. No, sir; it was just a path going down and a stairway going on the other side of the fence. This was a path, a regular beaten path, about four feet wide, that led from Washington down to the place where I was hurt.”

The crossing in question was to and from the turnpike leading to Washington, and the public road on the opposite side of the railroad.

A witness for the plaintiff, who was familiar with the locality, •said he knew' the highway and had used the crossing for years, and ■had seen other people use it, and that the place was used as a public crossing by people going from Port Colden to the public highway. That it was not a road crossing, but just a beaten path that went down to the switch.

The main defense to the action was that the accident did not happen as the plaintiff said it did, but that he was injured by falling from the platform of a freight train which he was trying to board in order to steal a ride to New York, and six witnesses testified to admissions made to them by the plaintiff substantially to that effect.

The defense of contributory negligence was also interposed. The case was tried at the Circuit before a jury, and the plaintiff recovered a verdict for $5,000. The defendant has appealed from the judgment and the order denying a motion for a new trial.

The plaintiff is the only person who witnessed the accident, and his evidence is the only proof in the case respecting the unfortunate occurrence.

There was no motion for a nonsuit, and no exception to the charge of the trial judge, but at the close of the testimony the counsel for the defendant moved for the direction of a verdict for the defendant.

The appeal from the order denying the motion for a new trial made upon the minutes of the court entitles the defendant to an ■examination of the evidence in the case.

While the evidence respecting the crossing where the plaintiff was injured might be sufficient to justify him in his effort to pass over the track at that place, yet we find the testimony insufficient to charge the defendant with negligence.

The foot of the plaintiff was caught in the switch and he was unable to extricate it. No signal from the train and no notice of its approach could have been of any avail to him. There was no obligation to stop the train, and that was the only thing that would have saved the plaintiff. If there was no signal given of the approach of the train, that neglect did not cause the injury, and is insufficient to sustain the action. It is only negligence which results in injury that will render a defendant responsible therefor.

As, therefore, the evidence fails to show any want of care in the operation of the train which caused the injury to the plaintiff, it is insufficient to sustain the verdict.

Moreover, the jury was not at liberty to disregard the proof introduced by the defendant of the statements of the plaintiff, respecting the manner in which he received his injuries. The testimony of the witnesses was clear and explicit, that the plaintiff had admitted to them that he was endeavoring to board a freight train which was in motion, to steal a ride, and in that effort fell under the wheels of the car. The statement was natural, and the evidence of its utterance was strongly preponderating.

We have had occasion at this term of the court, in the case of Nutting v. The Elevated Railroad Company, to notice the disposition of juries to give verdicts against railroad corporations upon insufficient evidence, and this case is another illustration of that inclination.

Here is a roving man, whose character is entirely unknown, whose testimony is entirely unsupported, who, according to the testimony of a number of witnesses, had given an account of the manner in which he was injured entirely inconsistent with that given by him in his testimony upon the trial, and yet the jury disregarded all the other evidence, and based a verdict upon his testimony alone.

Instead of a preponderance of proof which every plaintiff is bound to make, the testimony of the plaintiff was outweighed by the evidence introduced by the defendant. Under such circumstances it is our duty to interfere.

The judgment and the order denying the motion for a new trial must be reversed and a new trial granted, with costs to the defendant to abide the event.

Brown, P. J., and Pratt, J., concurred.

Judgment reversed and new trial granted, with costs to the defendant to abide the event.

        Ante, page 251.


author: Dykman, «L:

text:
    Adela McNish, Respondent, v. The Village of Peekskill, Appellant.
    , Appeal — an order denying a motion for a new trial, and also a certificate that the case contains all the evidence áre essential to a review of facts — duty of villages as to the care of streets — notice of defects necessan'y— liability for a failure to lay a sidewalk — contributory negligence.

    The omission to enter an order denying a motion made upon the minutes of tin; court to set aside the verdict, and the failure to insert in a case a certificate or stipulation that the case contains all the evidence, is equivalent to an admission that the verdict is sustained by the evidence, and that the order is sustained by the evidence.
    ■Where the defendant moves to dismiss a complaint without specifying any grounds for his motion, and it is denied, he cannot maintain his exception on appeal, provided the failure of proof could have been supplied; but where such a motion is made upon the ground that the plaintiff has made out no cause of action, such a statement, although general in its nature, sufficiently refers to the insufficiency of the proof to justify the court in examining that question.
    It is the duty of municipal corporations to exercise only ordinary care in maintaining public streets in a safe condition for travel.
    An essential element of negligence upon the part of such a corporation is knowledge of facts which would render foresight of danger possible, and where there is no knowledge of facts which would lead to an apprehension of danger, there can be no imputation of a lack of care.
    It is within the discretion of municipal authorities either to make or to omit to make improvements in streets or avenues; and no civil action is maintainable for a failure upon their part to exercise a power given them to construct and regulate a sidewalk upon an avenue.
    In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, the village of Peekskill, it appeared that there was no sidewalk upon the avenue where the accident in question happened, but that, as the plaintiff knew, a contractor with the village had on the morning of the day of the accident commenced to run a furrow with a plow along what was intended to be a sidewalk on the south side of the avenue, and that the north side was the better for walking; that on the evening of the day in question the plaintiff walked up on the north side to a house, and then returned during a violent rain storm, and, in returning, took the south side of the avenue, and after proceeding a short distance attempted to cross to the north side, fell into a furrow which was less than a foot deep and was injured.

      Held, that there was no negligence shown upon the part of the defendant;
    That the plaintiff was clearly guilty of contributory negligence and had unnecessarily exposed herself to the danger afforded by the'ffurrow, at a time when she had knowledge that the furrow was in existence.

      Appeal by tlie defendant, Tlie Village of Peekskill, from a judgment of tlie Supreme Court in favor of the plaintiff, entered, in tlie office of tlie clerk of tlie county of Westchester on the 18th ■day of March, 1895, upon the verdict of a jury rendered after a trial at the Westchester Circuit.
    In the notice of appeal it is stated that the defendant appeals “from the order denying the motion for a new trial made upon the judge’s minutes entered in said clerk’s office.” No such order is printed in the case on appeal.

      David Wiley Travis, for the appellant.

      Tlenry W Bates, for the respondent.
   Dykman, «L:

This is an appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, against the defendant.

There is also an appeal from an order denying a motion for a new trial made upon the minutes of the court, but the case contains no order.

Neither does it contain a certificate that all the evidence, or all bearing upon the questions sought to be reviewed, has heen included-in the case.

Under such circumstances, we can only consider the questions presented by the exceptions taken upon the trial. (Lewis v. Merritt, 42 Hun, 161; Porter v. Smith, 107 N. Y. 531; Murphy v. Board of Education, 53 Hun, 171.)

Tlie omission to enter an order denying a motion made upon the minutes of the court to set aside the verdict, and the failure to insert a certificate or stipulation that the case contains all the evidence, is equivalent to an admission that the verdict is sustained by the evidence and that the order is sustained hy the evidence.

The only exception requiring attention is the exception to the denial of tlie motion made at the close of the plantiff’s case to dismiss the complaint on the ground that the plaintiff had made out no cause of action.

It will he observed that the ground of the motion is not specifically stated, and there is some question respecting its sufficiency in that respect to raise the question intended to be presented thereby.

The rule of law upon, the subject requires the defendant to specify the ground of his motion, and where a defendant moves to dismiss a complaint without specifying any ground, and the motion is denied, he cannot maintain his exception on appeal, provided the failure of proof could have been supplied. (Haines v. N. Y. C. & H. R. R. R: Co., 145 N. Y. 238.)

In this case the ground stated was that the plaintiff had made out no cause of action, and although the statement is a general one, yet it refers to the insufficiency of the proof to charge the defendant with negligence. It is not like the case of a failure to prove a demand or a notice of which proof might have been supplied if attention had been directed to the omission.

We are, therefore, inclined to examine the case to determine whether the denial of the motion was erroneous.

The facts which had been developed upon the trial when the plaintiff rested her case were these :

Hudson avenue is one of the outlying streets in the village of Peekskill. It leads east and west with an ascending grade towards the east, and is crossed by Washington street and 'Ring-gold street, which are about 500 feet apart, the former being west of the latter.

The first house on the south side of the avenue was Reardon’s, about 220 feet east of the former street. The next house was that of Scribner, the mother of the plaintiff.

There was no sidevyalk on the south side of the avenue west of Reardon’s house, and the surface of the ground was in its natural condition. There was a path on the south side from Reardon’s west to Washington street, “ if,” as one of the witnesses said, “ you could find it.” On the 1st day of May, 1895, a contractor working-on behalf of the village commenced to grade the avenue, and ran a furrow with a plow along wliat was probably intended to be the north side of the sidewalk on the southerly side of the avenue in the neighborhood of Reardon’s house. The witnesses differed about the depth of the furrow, but it must have been, of course, less than twelve inches. The earth was left undisturbed south of that furrow.

On the evening of the 1st day of May, 1895, the plaintiff, with her two daughters and a Mr. Fox, went to the house of her mother at about eight o’clock in the evening. They walked up on the north side of the avenue, which was better than the south side. While at her mother’s house there came a violent rain shower accompanied with lightning and thunder, and while the storm was. yet prevailing the plaintiff and her two daughters and Fox started out of the house to go to her home.

Instead of crossing the avenue and going west on the north side,, the same way they had come, they started west on the south side of the avenue, along the path, and, after proceeding a short distance, the plaintiff turned to cross the street and fell between two trees, into the furrow that had been made that morning and fractured her knee pan.

Are these facts and circumstances sufficient to charge the defendant with negligence, and to prove the plaintiff’s freedom therefrom ?

In the administration of the law, negligence is the omission of duty, and, under well-settled principles, it is the duty of municipal corporations to exercise care and vigilance to maintain the public streets and avenues within their borders in a safe and suitable condition for public travel, and they must be proved guilty of a neglect of that duty before they can be rendered liable for injuries resulting” from their condition.

Ordinary care is all the law requires, and extraordinary diligence is not exacted.

An essential element of negligence is knowledge of facts which rendered foresight possible,'«and the circumstances necessary to be known before the liability for the consequences of an act or omission will be imposed must be such as would lead a prudent man to apprehend danger. All are bound to foresee -what experience will teach them is likely to follow from the existence of a given state of facts. In a given case, action must be dictated by experience.

Where there is no knowledge of facts which would lead to an apprehension of danger, there can be no imputation of foresight or blameworthiness, and these two ingredients are necessary to constitute negligence.

It now remains for us to apjffy the foregoing rules to the facts of this case. Ilere we have an avenue in a state of nature, with an unfrequented path on each side. The path on the north side was better than the one on the south side. It is within the discretion of the municipal authorities to make improvements in streets and avenues within their domain, or. to omit. them. In this case, no sidewalk liad, been made or ordered made in this avenue, and for a failure to exercise the power to construct and regulate it, no civil action is maintainable. (Mills v. City of Brooklyn, 32 N. Y. 489; Danaher v. City of Brooktyn, 4 N. Y. Supp. 312; Harrigan v. City of Brooklyn, 16 id. 743.)

A municipal corporation may determine for itself the extent of the improvements it will make. In this case the authorities had made no plan for a sidewalk, and so had never invited the public to use the path in question as such except at their own risk. There were neither excavations nor obstructions in the avenue in any place. A plow had been run along the south side of the avenue on the day of the accident, but the earth remained untouched and soft.

Under such circumstances, it is not too much to say that no human foresight could have anticipated such an accident as befell the plaintiff. She did not fall by reason of any defect in the path over which she was walking. That was free from obstruction. It was a good way of its sort, and, as we have already seen, no civil liability arises from the failure of the municipality to provide a better kind.

The plaintiff, therefore, has no legitimate right to complain of the inaction of the corporation, inasmuch as her injury did not result from anj- omission of duty which the law imposed upon it. No diligence or vigilance of the corporate authorities would have arrested the fall of the plaintiff or have averted her injury. If it be true that the avenue was not lighted, it is eqnally true that there was no legal obligation to light it. There was, however, an electric light at "Washington street 150 feet from the place where the plaintiff fell.

Turning now to the conduct of the plaintiff, we find it not only careless but heedless. She went out unnecessarily into the darkness of a fearful night, and instead of returning the way by which she went on the north side of the avenue, and which she knew to be safe, she immediately started west on the south side of the avenue, upon a narrow path. More than that, and as if to augment the perils of her environment, she turned aside and started to pass over the avenue where there was no crossing and where she knew the street had been torn up that day.

She unnecessarily left the path over which her companions had passed in safety in advance of her, and turned upon an untrodden way between buslies and trees, although it was so dark that she could not see where she wras stepping.

There was no instant from the time the plaintiff left her mother’s house on that unfortunate night that she was not in imminent and impending danger; and she encountered it all voluntarily and unnecessarily.

Her willful encounter of the perils not only contributed to the injury she sustained, but it was the entire cause of all her woes.

The case of McCabe v. The City of Buffalo (18 N. Y. Supp. 389) is quite analogous to this. It there appeared that the plaintiff, who was a woman, liad before dark passed a portion of a street which was undergoing repairs, and seeing that it was torn up, and that there was no pavement or crosswalk, passed around the same upon planks temporarily laid down, and, returning in the dark, attempted to cross the unpaved space and was injured.

It was there held that it was a ease in which the plaintiff was denied the right to presume that the crossing outside of the planks was in a safe condition, because she had before observed what its condition was, and that she was guilty of contributory negligence.

In no view of this case is the plaintiff entitled to a recovery, and the judgment must be reversed and a new trial granted, with costs to abide the event.

Brown, P. J., concurred; Pratt, J., dissented.

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


text:
    Alvey A. Adee, Appellant, v. Thomas C. Arnow, Defendant, and The Town of Westchester, Appellant; Seward Baker, Claiming to be Attorney for the Town of Westchester, Respondent.

      Towns — the. town board is the governing body — it alone can employ an attorney except in suits for penalties — power of the supervisor — Laws 1890, chap. 569, § 160; § 80, subd. %.

    Under tlie present statutes of this State relative to towns, the governing board of the town is what is denominated the “ town board.”
    The town board has exclusive authority to retain an attorney to prosecute or defend a litigation which concerns the town, except that the supervisor of the town may sue, in its name, for all penalties given by law for its use, and for which no other officer shall be directed to prosecute. The supervisor of a town has no authority bestowed upon him to prosecute or defend any other action.
    Appeal by the defendant, The Town of ’Westchester, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Westchester on the 23d day. of September, 1895, requiring the plaintiff to accept the notice of appearance and answer of the defendant, The Town of Westchester, served by Seward Baker, claiming to represent the said defendant in the action, and requiring the plaintiff to disregard the notice of appearance of said defendant, served by H. C. Henderson, claiming to be the attorney for said town, and striking out the answer of said defendant served by said attorney.
    Also an appeal by the plaintiff, Alvey A. Adee, from so much of said order as awards ten dollars costs to Seward Baker, attorney for the defendant, The Town of Westchester, and which requires “ that said plaintiff’s attorney serve a copy of the complaint in this action upon Seward Baker as such attorney.”

      Frederick W. Adee, for the plaintiff.

      II O. Henderson, for The Town of Westchester, appellant.

      John W. Bartram, for the respondent.
   Dykman, J.:

This action has for its object the cancellation of a tax lease made by the town of Westchester to the defendant Arnow, under the claim that it is a cloud upon the title of the plaintiff to certain lands belonging to him in that town.

The summons was served upon the supervisor and town clerk of the town of Westchester on the 3d day of June, 1895.

On the 6th day of June, 1895, Henry C. Henderson, an attorney and counselor at law, served a notice of appearance for the town in the usual way upon the attorney for the plaintiff.

On the 18th day of June, 1895, Seward Baker served a notice of appearance for the defendant Arnow on the plaintiff’s attorney, and on the same day the latter served a copy of the complaint in the action upon each, of the attorneys who had appeared as above stated.

On the 21st day of June, 1895, Baker served a notice of appearance for the town upon the plaintiff’s attorney, which the latter returned by reason of the former appearance of Henderson. Baker also served an answer on behalf of the town on the 11th day of July, 1895, which was returned.

On the thirteenth day of July Henderson served an answer on behalf of the town, and on the 14th day of September, 1895, an order was made upon the motion of Mr. Baker requiring the plaintiff’s attorney to accept the notice of appearance by him for the town of Westchester.

From that order these appeals were taken. Mr. Henderson was employed by the board of town officers to defend the suit for the town, and Mr. Baker was employed by the supervisor of the town, and the question for solution is, which employment is regular, or, in other words, who had the authority to employ counsel to represent the town in the action ?

In the constitution of the towns of this State many old things have passed away. By a recent statute of the State the governing board of a town is the town board. (Laws of 1892, chap. 685, § 1.) And the supervisor, town clerk and the justices of the peace, or any two such justices, constitute the town board of each town. (Laws of 1890, chap. 569, § 160.)

The functions of a governing board of a town must be the government of the town.

All of the internal affairs of a town must be under the control of the board of town officers, so far as official action can go. Of course the inherent power of the people is left undisturbed and unlimited, and there is no restriction upon its action in a public town meeting. Each town is constituted a municipal corporation, and the business of the town must be transacted by the corporate officers, or, as they are now called, the governing board. An exception is created to the general rule by subdivision 2 of section 80 of chapter 569 of the Laws of 1890 (the Town Law), where it is provided that the supervisor of the town shall prosecute in the name of the town for all penalties given by law to such town for its use, and for which no other officer shall be directed to prosecute.. No authority is bestowed upon him to prosecute or -defend any other action.

As a member of the town board, the supervisor has no more or greater authority than any of the other officers who are members thereof, and no one of them can legally act independently of the others, or outside of the board. It is highly essential to the interests of the town that all questions respecting litigation should be determined by the governing board. It may or may not be for the interests of the town to prosecute or defend suits, and the determination of such questions requires the exercise of judgment and discretion. The governing board is constituted for all such purposes, and its power should not be limited or restricted by construction.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs to be paid by the supervisor.

Brown, P. J., and Pratt, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs to be paid by the supervisor.


author: Brown, P. J.:

text:
    Myra L. Wood, as Executrix, etc., of Horace G. Wood, Deceased, Appellant, v. Joseph B. Richardson and Others, Respondents.

      Appeal — acceptance of costs given conditionally by an order constitutes a waiver of the right to appeal therefrom.

    ■Cue wlio receives the benefit of an order waives the right to appeal therefrom.
    Certain of the next of kin of a decedent having petitioned the court, in an action brought against his executors, for leave to intervene in the action, an order was granted allowing them to serve answers within twenty days from the date of the service and entry of the order, and providing that the petitioners should pay to the plaintiff or her attorneys ten dollars costs of the motion, on or before the service of said answers. The petitioners served their answers, and paid the costs provided to be paid by the order, which the plaintiff accepted, and thereafter appealed from such order.
    Upon a motion made by the petitioners to dismiss the appeal,

      Jleld, that the award of costs was conditional and not absolute; that the plaintiff having accepted and retained the costs could not appeal from the order, and that the motion to dismiss the appeal should be granted.

      Motion by the respondents, Joseph B. Richardson and others, to-dismiss an appeal pending before the General Term of the Supreme Court for the second judicial department.

      John McDonald, for the motion.

      E. B. Merritt, opposed.
   Brown, P. J.:

This action was commenced by the appellant against Emma Richardson and "William T. "Washburn, respectively executrix and executor of the last will and testament of Benjamin Richardson, deceased.

On the 8th day of October, 1895, upon the petition of Joseph B. Richardson and five other persons, being the next of kin of said Benjamin Richardson, deceased, an order was made at the Special Term allowing said petitioners to intervene in the action, and to serve answers to the complaint within twenty days from the entry and service of the order. The order provided that in case said answers were not served plaintiff' was to be allowed to enter judgment against the executors without further notice, and in case such answers were served plaintiff was stayed from entering judgment against said executors until the termination of the trial of the action. The final provision of the order was as follows: “ It is further ordered that the petitioners pay to the plaintiff or her attorney $10.00 costs of this motion on or before the service of the answers, to the complaint herein.” "Within the time specified in the order the petitioners served their answers on the plaintiff’s attorney and paid to him the costs, which were accepted and have been retained by him.

Thereafter the plaintiff appealed from the order and the respondents have moved upon the foregoing facts to dismiss the appeal.

W"e are of the opinion that the award of costs was conditional and not absolute. They were to be paid on or before the service of the answers. If the answers were not served the respondents were under no obligation to pay them, and in the absence of the service of the answers payment could not have been enforced by the appellant.

The appellant having, therefore, accepted and retained the costs, cannot appeal from the order.

One who receives the benefit of an order waives the right to appeal. (Radway v. Graham, 4 Abb. Pr. 468; Lewis v. Irving Fire Ins. Co., 15 Abb. Pr. 140 [note].)

The case before ns differs from that of The Farmers' Loan & Trust Company v. Bankers & Merchants' Telegraph Company (109 N. Y. 342), in that, in that case the 'award of costs was absolute and the appellant’s right to them was perfect.

The motion must be granted, with ten dollars costs.

Pratt and Dykman, JJ\, concurred.

Motion to dismiss appeal granted, with ten dollars costs.


author: Yan Brunt, P. J.:

text:
    Abraham Lindo and Isaac Lindo, Appellants, v. Matthew T. Murray, as Executor, etc., of Matthew Murray, Deceased, Respondent.

      Powers — unlimited power to sell real estate — not connected with trusts attempted to be created by the will — the power may be exercised though the trusts a?'e void — it may be exercised for purposes of distribution.

    Where a will gives, to the executors named in it, an absolute power of sale to sell all or any portion of the real estate, in such manner and upon such terms as they in their judgment should consider most for the interests for the estate, and to execute proper deeds therefor and to vest all the title of the testator in the purchaser, and also creates certain void trusts, and it appears that there is no connection whatever between the power of sale and the trusts, a conveyance made by the executors, under the power, conveys a good title.

      Semble, that executors would have a right to exercise such a power of sale for the purposes of distribution, in order to prevent the expenses of an action in partition.
    Appeal by tlie plaintiffs, Abraham Lindo and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of July, 1895, upon the decision of the court rendered after a trial at the New York Circuit, dismissing the complaint upon the merits.

      Samuel Greenbaum, for the appellants.

      J. FL. Regcm and Frederick Smyth, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover the sum of $1,000, the amount paid by the plaintiffs to the defendant’s testator upon the making of a certain contract for the purchase of real estate owned by said testator, and the counsel fee and disbursements incurred in and about the searching of the title to the premises mentioned in said contract, the vendor’s title to the premises having been objected to by the plaintiffs as not marketable.

The vendor claimed to have acquired title under a deed executed by the executors of the will of one George Youngs. These executors assumed to execute the deed because of a power of sale contained-in the will of said Youngs. Youngs died vested with the title in fee of the premises in question on the 1st of January, 1880, leaving a will which was duly proved before the surrogate of the county. Shortly after his death an action was commenced in the Court of Common Pleas for a construction of the will. There were minors interested in the estate, the proceedings as to whom seem to have been regular. A judgment ivas entered in the action in the-Court of Common Pleas, holding that the trusts attempted to be created by the will were void, and that the heirs at law were entitled to the real and personal estate, subject to the power of sale, and also holding that the power of sale contained in said will was valid.

The conveyance by the executors was executed on the 24th of March, 1883, and on the 3d of May, 1883, such executors filed their final account of proceedings in the office of the surrogate, by which it appears that there came into the hands of the executors-from the personal estate of the deceased over $24,000, and that the sum realized from the sale of his real estate, including the real estate in question, -was $45,000; and it also appeared that the total expenditures by the executors, which necessarily included the payment of all debts, was less than $21,000.

In the court below it was held that the Court of Common Pleas, had jurisdiction of the subject-matter of the action; that the parties were present before the court, and that it had determined the question as to the existence of the power of sale, and that this adjudication was binding as a conclusive adjudication upon all the parties to that action, whether adults or infants.

In the disposition of the appeal from the judgment we do not think it is at all necessary to determine the question as to whether the court below placed its decision upon the proper ground or not. It seems to be apparent, upon an examination of the will, that the power of sale is in no way connected with the trusts attempted to be created, and which were declared to be void. It is an absolute power given to the executors to sell all or any portion of the real estate at such times, in. such maimer, and upon such terms 'as they in their judgment should consider most for the interest of the estate, and to execute proper deeds therefor, and to vest all his title thereto in the purchaser thereof.

The case of Kinnier v. Rogers (42 N. Y. 531) holds such a power of sale to be valid.

The authorities cited upon the part of the plaintiffs hold that where an executor has a mere, naked or collateral power, with no beneficial interest whatever in the land or its proceeds, the power can only be exercised in the maimer and for the precise purpose declared and intended by the donor, and that where that purpose cannot be effectuated the power fails. But in the case at bar there was no limitation of purpose whatever. The executors were authorized to sell the real estate at such time, in such manner and upon such terms as they in their judgment should consider for the interest of the estate, and to execute proper deeds therefor. Even for the purposes of distribution, the executors would have had the right to exercise this power in order to prevent the expenses of partition. The case of Sweeney v. Warren (127 N. Y. 426), cited by the appellants, is an example of those cases in which it was held that, where an executor is authorized to sell for some specific purpose, which purpose has failed or been accomplished, the power of sale cannot be exercised. So- here, if the trusts were void and the power of sale was connected with tlie execution of the trust, the trust failing, the power of sale would also fail. But we see no connection between the power of sale and trust, although in the execution of the trust it might have been very convenient to have exercised the power of sale.

The case is presented of a naked power which the testator has given to his executors to be exercised for the best interests of bis estate in the winding up of its affairs.

The judgment should be affirmed, with costs.

Follett and Parker, JJ., concurred.

Judgment affirmed, with costs.


text:
    William Brooks, Respondent, v. Charles E. Tayntor and Rufus M. Tayntor, Appellants.

      ffemeteries — Men given by chapter 543 of 1888, to a person furnishing a monwnent —• it depends on a notice being given by the superintendent of the cemetery to the plot owner — constitutionality of the statute.

    Tlie requirement contained iu chapter 548 of tlie Laws oí 1888 (which gives to a person who places a monument in a cemetery a lien thereon for the purchase price), that tlie superintendent of the cemetery shall forthwith, when a notice of lien is filed with him, notify tlie plot owner that such lien lias been filed with him, must be complied with and the time specified in the statute must thereafter expire before the lien can be foreclosed.

      Quaere, as to the constitutionality of this statute.
    Appeal by tlie defendants, Charles E. Tayntor and another, from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of October, 1895, continuing until the final determination of the action a preliminary injunction theretofore granted in the action.

      Hugo Hirsh, for the appellants.

      Alex. Thadn, for the respondent.
   Yan Brunt, P. J.:

The defendants are dealers in monuments, gravestones, etc. In the year 1893 • they furnished a monument to the plaintiff and erected the same on the plaintiff’s burial plot in Greenwood Cemetery. Tlie plaintiff paid the contract price of this monument partly in casi) and partly in notes as required by the contract; and because ®f the non-payment of these notes the defendants threatened to enforce tlie payment of that indebtedness under chapter 543 of tlie Laws of 18S8, and to that end, to take possession of the monument, detach it from the soil and sell it at auction. This action was brought to restrain the defendants from removing the monument and from in any manner interfering therewith.

It is claimed upon the part of the respondent that the statute in question is unconstitutional, and that the method of procedure provided by the statute has not been complied with.

In the disposition of this appeal it does not seem to be necessary to consider the question of the constitutionality of this extraordinary legislative production called chapter 543 of the Laws of 1888. The act provides that every person, etc., that shall furnish or place in any cemetery or burial ground within the State any monument, etc., shall have a lien upon such monument for the principal and interest of the agreed price thereof or such portion of said price as shall remain unpaid, until the same be paid in full, provided such person, etc., shall at any time or within one year after the bill for the same becomes due, file with the superintendent or person in charge of such cemetery or burial ground a notice in writing to the effect that the person, etc., furnishing such monument, etc., claims a lien on the same for the purchase price thereof, or such portion of the purchase price thereof as remains unpaid, with interest. After certain other provisions in regard to the form of the notice of lien the statute provides that it shall be the duty of the superintendent or person in charge of the cemetery with whom any such notice shall be filed, to forthwith notify the owner or owners of the plot so described in said notice, of the filing of said notice of lien. This is the only provision contained in the act in regard to the service of this notice upon the owner of the monument.

It seems to be somewhat difficult to understand exactly how such a-requirement upon the part of a superintendent of a burial ground can be enforced. In the case at bar the superintendent did not give any notice.

The next section provides that in case the amount due be not paid within six months after the service of said notice on the plot owner, as hereinbefore provided, the said person, etc., so claiming such lien shall thereafter and within sixty days have the right, on ten days’notice to the superintendent , or person in charge of the cemetery, of his election so to do, to remove from said burial ground the monument, etc., to the outside of the grounds of the cemetery, and upon publishing a notice in two newspapers may sell it.

In the case at bar, as above stated, no notice whatever was served by the superintendent. It is claimed upon the part of the defendants that their agent served a copy of the notice of lien upon the plaintiff. The plaintiff, however, asserts that no such service of notice of the filing of the lien was ever made upon him; that the notice served upon him was served prior to the filing of the lien.

It seems to be clear that the statute has not been complied with. The right to foreclose the lien under the statute depended upon the expiration of a certain time after the service of notice of the filing of the notice of lien, by the superintendent of the cemetery, and no authority is given to anybody else to usurp this duty. It is clear, therefore, that the defendants did not comply with the statute, and that they had no right to commit this threatened trespass upon the plaintiff’s burial plot, even if this remarkable statute can be held to be constitutional, in respect to which we express no opinion.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

O’Brien, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Yan Brunt, P. J. :

text:
    Edwin K. Wiggins, an Infant, by Augustus S. Wiggins, his Guardian ad Litem, Respondent, v. John King and John G. McCullough, as Receivers of The New York, Lake Erie and Western Railroad Company, Appellants.

      Bailroacl — reasonable regulations as to the evidence of a passenger's right to ride— e/fect of a conductor’s talcing up the wrong coupon of an excursion ticket — references to the folios of the case in a statement of facts in counsel’s points.

    A railroad company has a right to make reasonable regulations in respect to the method by which a passenger may assert to the employees of a railroad company his right to be a passenger upon any particular train. The possession and exhibition, upon reasonable demand, of a ticket assuring this right, is a reasonable regulation.

      In an action brought to recover damages resulting from an alleged assault committed by the defendant, it appeared that the father of the plaintiff, an infant, purchased of the defendant a railroad ticket from Warren Point to Jersey City and return; that upon the journey to Jersey City a train conductor, by mistake, took up the return coupon, allowing the plaintiff to retain the other coupon, and that upon the journey back from Jersey City to Warren Pointuponthc next day, the conductor of that train refused to accept such latter coupon for passage, upon the ground that it did not entitle the plaintiff to ride in the opposite direction, and thereupon compelled the plaintiff to leave the train.

      Held, that the error of the conductor on the first train in taking up the wrong coupon of the plaintiff’s ticket did not affect the right of the conductor of the second train to eject him fropi it, and that the plaintiff could not recover in this action unless lie entered upon his return journey in ignorance of the mistake of the conductor of the inward train (and unless such mistake could not have been discovered by the plaintiff by the exercise of ordinary diligence);
    That the plaintiff had a complete remedy against the defendant for its wrongful act in its conductor’s having improperly taken up the return ticket, but that the remedy in that regard was independent of and did not sustain the present action.
    The statement of facts, preceding the points of counsel, should contain references to the folios of the case where the testimony appears upon which counsel rely in support of their statement of the facts
    'Appeal by the defendants, John King and another, as receivers of the New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of April, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said cierk’s office on the 16th day of April, 1895, denying the defendants’ motion for a new trial made upon the minutes.

      Frederic B. Jennings, for the appellants.

      Samuel Ashton, for the respondent.
   Yan Brunt, P. J. :

It is to be noticed in the consideration of the case at bar that the respondent prefixes to his points a long statement of facts without a single reference to the testimony contained in the case supporting such statement, except one at the end thereof, which is entirely immaterial to the questions involved in this appeal. We might very well, under the requirements of the General Buies of Practice, refuse to consider any portion of sucli statement, the more particularly as the same contains allegations of fact which we cannot find to be supported by any testimony.

The facts of the case seem to be that the father of the plaintiff, on the 10th of September, 1891, purchased at Jersey City, and gave to the plaintiff, an excursion ticket from Jersey City to Warren Point, the return coupon being for transportation from Warren Point to Jersey City.

The plaintiff claims that in going from Warren Point to Jersey City the conductor took up the main coupon entitling him to ride from Jersey City to Warren Point. The next day, on his return journey, another conductor refused to accept the return coupon, reading from Warren Point to Jersey City, upon the ground that it did not entitle the plaintiff to ride in the opposite direction, and he was required to leave the train. This action was brought for an assault alleged to have been committed in putting the plaintiff off the train, he claiming to have been compelled to walk a considerable distance to his home and to have become sick because thereof. A recovery having been had in favor of the plaintiff, and an order having been entered denying the defendants’ motion for a new trial, from such judgment and order this appeal is taken.

In the plaintiff’s statement of the case it is alleged that the plaintiff did not discover the fact that the conductor of the train from Warren Point to Jersey City had taken the wrong part of the ticket until he became and. was a passenger on the defendants’ train on his return from Jersey City to Warren Point, and until he had presented, this ticket to the conductor, which the conductor refused to receive»

We have examined the case with care to find any evidence whatever to support this proposition.

It is needless to cite authorities to sustain the proposition that a railroad company has the right to make reasonable regulations in. respect to the method by which a passenger may assert to tha employees of the company his right to be a passenger upon any particular train. The possession and exhibition, upon reasonable demand, of a ticket assuring this right has been held to- be such a reasonable regulation. It is also equally clear that the plaintiff cannot recover in this action for the wrongful act of the conductor upon the train from Warren Point to Jersey City in taking up the wrong portion of the ticket.

It is equally well settled that unless tlie plaintiff, in ignorance of the mistake of the previous conductor, which mistake he could not,, by using ordinary diligence, have discovered, entered the train going from Jersey City to Warren Point, his erroneous ticket presented no bar to the right of the conductor to eject.

In the case of Muckle v. Rochester Railway Company (79 Hun, 32, 37) the right of recovery was based upon the fact that the holder of the transfer ticket did not understand the marks upon the ticket showing the limitation of time within which it could be used.

In the case of Hibbard v. N. Y. & E. R. R. (15 N. Y. 455), which is referred to with approval in the case of Townsend v. N. Y. Cen. & H. R. R. R. Co. (56 N. Y. 295), the rule is laid down, in a case where a party claimed tliat liis ticket was taken up by a conductor on a previous train before he had completed the journey which the ticket entitled him to ride, that for the wrongful act in taking his ticket he has a complete remedy against the company. The conductor of the train upon which he was, was not bound to take bis word that he had had a ticket showing his right to a passage to Hliinebeck which had been taken up .by the conductor of the other train. His statement to that effect was wholly immaterial, and it was the duty of the conductor to the company to enforce the regulation, as was lightly held by the trial juijge, by putting the plaintiff off, in case ho persistently refused to pay fare.”

It would seem, therefore, under the condition of the proof at the termination of the trial of the case at bar, that no case was made out as against the defendants, and that the complaint should have been dismissed.

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

O’Brien and Parker, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellants to abide event.


author: Per Curiam :

text:
    The People of the State of New York, Respondent, v. Joseph Owens, Appellant.

      Excise Law — person presumed not to have violated it — failure of proof.

    A person charged with violating the Excise Law is presumed to be innocent until proof of his guilt is furnished, and this is not accomplished by showing that bottles, bearing labels which indicated that they contained spirituous liquor, rvere found standing unused behind the bar of a saloon.
    The fact that when an officer reached a liquor store, upon Sunday, he found the door closed and fastened, obtained entrance through a window, found three men within besides the proprietor, and that there were two glasses upon the bar, unaccompanied by any proof that any liquor was in the glasses or was sold or given away, will not justify a finding that the proprietor had violated the Excise Law.
    Appeal by the defendant, Joseph Owens, from a judgment of the Court of Special Sessions of the city and county of New York, rendered on the 5th day of August, 1895, convicting him of the crime of exposing intoxicating liquors for sale on Sunday.

      Emcmuel M. Friend and Charles Cohn, for the appellant.

      John I). Lindsay, for the respondent.
   Per Curiam :

By the judgment of the court the defendant ivas convicted of a violation of that provision of the Excise Law which declares it to be a misdemeanor for “ any person who, whether having a license or not, shall sell or offer or expose for sale, or give away any strong or spirituous liquors, wines, ale or beer: (1) On Sunday.” (Laws of .1892, chap. 401, § 32.) The evidence upon which conviction was based was furnished by a police officer who testified that on June 30, 1895, he visited a liquor store in which the defendant was at the time, with his sleeves rolled up and an apron on. When the officer reached the premises the door was closed and fastened, but he obtained entrance through a window, and found within three men besides the defendant,-the latter being behind the front bar, back of which was the back bar, which contained glasses and labeled bottles such as are usually found in such places. Upon the front bar there were two glasses.

To the question, “ What was in them? ” he answered, “ They were removed before I could get to the bar.” To the further question, “ Something in them?” he replied, “Tes, sir; a small quantity of liquor.” It is evident from the testimony which preceded the last answer, as well as that which followed it, that this was a mere guess •on the part of the officer. Tie saw nothing poured iuto the glasses; they were removed before he reached the bar, and he did not examine them afterwards for the purpose of ascertaining whether they contained liquor. The fact that bottles bearing labels indicating that they contain spirituous liquors are stationed in their usual ¡haces upon a back bar is not of itself sufficient to support a conviction for a violation of the statute.

For such a fact standing alone will not support a finding that the owner or person in charge was selling, or offering or exposing for sale, any part of the contents of such bottles. A person charged with violating the Excise Law, like all other alleged offenders against the law, is presumed to be innocent until proof of his guilt is furnished. And this is not accomplished by showing that the bottles were standing unused behind the bar. As there is no proof that any of the contents of the bottles w'as either sold or given away, it was necessary to prove other facts and circumstances in order to support a finding that their exposure was for the purpose of sale.

There were three persons in the store, the doors of which were fastened, but whether they were customers of the store or friends of the defendant does not appear, nor were they seen to drink anything whatever. It does not appear that the two glasses on the bar were put there for their use, or had been used by either of them, nor whether they had contained spirituous liquor of any character. The evidence, therefore, was insufficient to justify a finding by the court that the defendant had violated the statute as charged in the complaint, and he should have been discharged.

The judgment of conviction should be reversed and a new trial granted.

Present — Yan Prunt, P. J., and Parker, J.

Judgment reversed and new trial granted.


text:
    Americus F. Callahan, Respondent, v. Moses R. Crow, Appellant.

      Bills and notes — a valid note may be purchased of the payee at any price — if taken after maturity it is subject to defenses' — delivery of property to an a,gent is a delioery to the principal.

    A valid promissory note may be purchased of the payees at any price, or, even if given to the holder by the payees, the former may enforce it for its full amount.
    A promissory note purchased after maturity is taken subject to all existing defenses.
    A delivery made to the agent of a person is equivalent in law to a delivery to the principal.
    Appeal by the defendant, Moses R. Crow, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of May, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit, and also from an order bearing date the 10th day of May, 1895, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes..

      Franldin Bien, for the appellant.

      G. N. Bovee, Jr., for the respondent.
   Per Curiam :

This action ivas begun April 4, 1894, to recover the amount due on a promissory note, of which the following is a copy :

“3750 Dolls. New York, June 2nd-, 1892.

One year after date I promise to pay to the order of Dennis-Long, Samuel A. Miller and George J. Long, thirty-seven hundred and fifty dollars and interest at six per centum per annum for value received, I having deposited with this obligation, as collateral security, twenty bonds of one thousand dollars each of the president and directors of the Grand Rapids Hydraulic Company, numbered respectively 227, 228, 514 to 519, both inclusive, 531, 532, 533; 555, 534, 535, 536, 594, 595, 381, 382, 383, bonds numbered 531 to 536, both inclusive, having January, 1890, and subsequent coupons on, and the other bonds having July, 1889, and subsequent coupons on, and four bonds of one thousand dollars each of the New York City District "Water Supply Company, with authority to sell the sam& without notice, either at public or private sale or otherwise, at the option of the holder or holders hereof, on the non-performance of this promise, he or they giving me credit for any balance of such sale remaining after paying all sums due from me to the said holder or holders, or to his or their order. “ M. R. CROW.”

This note was given in consideration of the following contract:

“Whereas, Dennis Long & Company are the owners of bonds of the president and directors of the Grand Rapids Hydraulic Company amounting in face value to twenty thousand dollars, and numbered respectively 227, 228, 514 to 519, both inclusive; 531 to 53G, both inclusive; 594, 595, 381, 3S2 and 383; bonds numbered 531 to 536, both inclusive, having January, 1890, and subsequent coupons on; and the others having July, 1889, and subsequent coupons on, and whereas the said Dennis Long & Company has made a certain request as the holder of said bonds to the American Loan & Trust Company of Boston, trustee, to foreclose the mortgage securing the said bonds; and,

“ Wit breas, Moses R. Crow, of New York, is desirous of acquiring the title to said bonds,

“ IToto, therefore, in consideration of the premises and of one dollar and other good and valuable considerations paid by the said Crow to the said Dennis Long & Co., receipt of which is hereby acknowledged, the said Dennis Long & Co. do assign and transfer to the said Moses R. Crow all their right, title and interest in and to the said bonds, provided, however, that the said Crow agrees to indemnify and hold harmless the said Dennis Long & Co. from all liability incurred by them by reason of joining in said request to foreclose.

In witness whereof.\ the said Dennis Long and Company and the said Moses R. Crow have severally set their hands and seals this second day of June, A. D. 1892, to this instrument and to another of like tenor.

“ DENNIS LONG & COMPANY. [seal.]

“M. R. CROW. [seal.]”

The defendant does not deny the execution of the note, nor of the contract. March 12, 1894, two of the payees and the executors of the third payee assigned this note and the collateral accompanying the same by an instrument in writing to the plaintiff.

'idie defendant in his answer set up six defenses : (1) He denied fclio assignment; (2) alleged that the plaintiff was not the real party in interest; (3) that the plaintiff was not the holder of the note for value, but took the same after maturity, paying no consideration therefor; (4) that the note had been paid; (o) that the consideration of the note had wholly failed; (6) that the payees had not delivered to the defendant the bonds for which the note was given.

The assignment of the note was proved beyond question, and that the plaintiff was the real party in interest; and it was quite immaterial how much he paid for the note. If it were given to him, his right of action thereon was as perfect as though he had paid the full amount of the note, with interest, to the payees. The plaintiff conceded on the trial that lie took the note after it fell due, and that it was subject to all the defenses that might have been interposed to an action brought thereon .by the payees. There was no attempt made on the trial to show that the note had been paid. This disposes of the first four defenses.

The fifth and sixth defenses are substantially the same, and in support of them the defendant testified that lie had never received the bonds described in the contract and in the note. It was undoubtedly true that the bonds were not delivered to the defendant personally, but it was proved beyond dispute that the contract entered into was negotiated by Stanton I). Loring, of Boston, on behalf of the defendant, to whom the bonds were sent, and they, with the defendant’s note, were returned by Loring to the payees. The delivery to Loring, who negotiated the contract for the defendant, was equivalent to a delivery to him, and so the defense that the consideration had failed was not established. The ■ defendant was not in a position to show and did not attempt to show that the bonds were not obligations of the 'corporation which issued them, for he was the president of that corporation and had signed the bonds.

It may be that the defendant made a bad bargain, but that is not a good defense to the action on the note.

The judgment and order should be affirmed, with costs.

Present— Fan Brunt, P. J., Foluett and Parker, JJ.

Judgment and order affirmed, with costs.