author: Barnard, P. J. :

text:
    John Cunningham, Appellant, v. William B. Davenport, Public Administrator, etc., Respondent, Impleaded with Another.

      Savings bank — a deposit to the credit of the depositor as trustee for another — operates to transfer the fund to the beneficim'y.

      A deposit in a savings bank by a person to Ms credit as trustee for another, operates prima facie to transfer the fund deposited to such beneficiary, and, in the absence of other proof showing a contrary intent, the self-constituted trustee holds the fund for such beneficiary.
    Appeal by the plaintiff, John Cunningham, from so much of a judgment of the Supreme Court, rendered upon a decision of the court after a trial at the Kings County Special Term, and entered in the office of the clerk of the county of Kings on the 5th day of May, 1898, as directs that the defendant, William B. Davenport, as administrator, etc., recover of the plaintiff $2,740.59 and costs.
    The justice before whom this action was brought found, as matters of fact:

      Fifth. That the account of the Bowery Savings Bank was originally opened on the 2d day of July, 1869, deposits made by the plaintiff, John Cunningham, of moneys belonging to him ; and plaintiff made other deposits therein down to about the year 1881; that said account was commenced as No. 320,153; that in the year 1881 said account 320,153 with the Bowery Savings Bank, then belonging to the plaintiff, John Cunningham, and representing moneys belonging to him, and deposited by him, and accruals of interest thereon, was transferred to a new account in said bank, known as account No. 523,181, which account was entered on the books of said bank to the credit of “John Cunningham in trust for Patrick Cunningham,” and said account remained with said Bowery Savings Bank until the 17th day of April, 1890.

      Sixth. That the plaintiff, John Cunningham, retained possession of the said book of deposit of the Bowery Savings Bank, representing such account 523,181, and there is no evidence that he ever parted with the same, except to deliver the same up to the Bowery Savings Bank upon the closing and transferring of the account, as hereinafter found.

      Seventh. That the plaintiff, John Cunningham, had a brother, Patrick Cunningham, who departed this life on the 14th day of April, 1890.

      Eighth. That there is no evidence that John Cunningham ever delivered said book of deposit to said Patrick Cunningham, or ever informed him of the transfer of said account with the Bowery Savings Bank, to the credit of John Cunningham in trust for Patrick Cunningham.

      N'l/ith. That there is no evidence that the plaintiff, John Cunningham, ever received any moneys from Patrick Cunningham, and claims never to have intended to have given the moneys represented by said account of the Bowery Savings Bank No. 523,181, to Patrick Cunningham, or to have ever intended them for his benefit.

      Tenth. That on the 17th day of April, 1890, the plaintiff, John Cunningham, surrendered to the Bowery Savings Bank said book of deposit No. 523,181, and Lad the moneys represented by said account transferred to a new account to the credit of the plaintiff, John Cunningham, which new account was known as No. 687,735, and the plaintiff, upon the opening of said account 687,735 in his own name received the book of deposit representing said account, and retained possession thereof until surrender thereof by him to said Bowery Savings Bank, as hereinafter found.
    He found, as conclusion of law:

      Fifth. That William B. Davenport, public administrator of Kings county, as administrator of the goods, chattels and credits which were of Patrick Cunningham, deceased, is entitled to recover from the plaintiff, John Cunningham, the sum of two thousand three hundred and twenty-two 54-100 dollars, being the amount drawn by him from the Bowery Savings Bank, with interest thereon from the 14th day of April, 1890 ; that is to say, the sum of four hundred and eighteen 05-100 dollars, and amounting in the aggregate to the sum of two thousand seven hundred and forty 59-100 dollars, together with the costs and disbursements of this action.

      J. Stewart Ross, for the appellant.

      C. H. Otis and James J. Rogers, for the respondent.
   Barnard, P. J. :

The plaintiff, in 1869, opened an account in his own name with the Bowery Savings Bank in New York. lie made deposits from time to time, and in 1881 lie directed the bank to open a new account to tbe credit of “John Cunningham, in trust for Patrick Cunningham, bis brother,” and to transfer tbe old account standing in bis own name to tbe new account, which was done. Tbe plaintiff never delivered possession of tbe book of deposit. Patrick Cunningham died on tbe 14th of April, 1890, and on tbe 17th of April, 1890, tbe plaintiff drew out tbe money and applied it to bis own use. Tbe question presented is whether tbe gift to Patrick Cunningham is made out. Tbe Court of Appeals, in tbe case of Martin v. Funk (75 N. Y. 134), held that a'deposit, in tbe form in which this deposit was made, operated prwna facie to transfer tbe fund to the beneficiary, and in tbe absence of other proof showing a contrary intent, the self-constituted trustee held tbe fund as trustee for the beneficiary.

Tbe principle decided in this case has been recognized and followed by tbe Court of Appeals in tbe case of Mabie v. Bailey (95 N Y. 206). (Willis v. Smyth) 91 id. 300; Matter of Crawford, 113 id. 560.)

In tbe case of Mabie v. Bailey tbe court intimates that tbe mere form’of tbe deposit does not, of itself, determine a gift, but tbe surrounding circumstances may be proved to aid or repel tbe fact of the gift. The case of Beaver v. Beaver (117 N. Y. 421) is not in conflict with tbe case presented by this appeal. In that case a father deposited money in tbe name of bis minor son. There was no delivery of tbe book of deposit to him, but tbe father retained tbe book for nearly twenty years. Tbe father signed tbe request to tbe bank to open tbe account and to receive tbe deposit from him. He also drew on one occasion from tbe account himself, and the son never knew of tbe deposit, but all tbe dealings in respect to tbe bank book were transacted with the father only, and this continued for some sixteen years after the son became of age.

The judgment should be affirmed, with costs.

Pratt and Dykman, JJ., concurred.

Part of judgment appealed from affirmed, with costs.


source: Caselaw Access Project

author: Pratt, J.: Barnard, P. J.

license: Public Domain

text:
    Edward A. Anderson, Respondent, v. Anna Anderson, Appellant.

      Action to annul a marriage — evidence necessary to justify a reversal of a judgment.

    Where an appeal is taken upon questions of fact only from a judgment annulling a marriage contract on tlie ground that it was procured by duress, a very strong preponderance of evidence against the decision of the trial justice is required to justify a reversal.
    Appeal by tlie defendant, Anna Anderson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of February, 1893, •upon a decision of the court rendered after a trial at the Kings County Special Term, declaring the marriage between the plaintiff and defendant void, and annulling the same, and freeing the parties from the obligations of the marriage with each other.
    , This action was brought for tlie purpose of annulling and declaring void the marriage contract between tlie parties, and freeing them from the obligations thereof.
    The complaint alleged “that the consent of the plaintiff was obtained to the said marriage by force and duress, in that the said plaintiff w^as made to believe that if he did not marry the said defendant the brother of said defendant would shoot and kill him, the said plaintiff, and that serious violence would be committed upon him by defendant’s father; and the said defendant’s brother threatened to kill said plaintiff if he did not marry the defendant, which threats were made with the knowledge and concurrence of the defendant. That in the fear that said threats would be carried out, and that plaintiff would be killed or grievously wounded and hurt if he did not, he, the said plaintiff, married the defendant to avoid such hurt or death.
    “ Said plaintiff and defendant have never since the said marriage cohabited together as husband and wife.”

      Wm. J. Carr, for the appellant.

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

The only questions being of fact, and the trial judge having seen the witness and personally heard the testimony, a very strong preponderance of evidence against the decision would be required to enable us to interfere upon appeal.

We do not think it can be said that the judgment is unsupported by any testimony.

The trial judge believed the evidence of the plaintiff, and we cannot say that he was wrong in so doing.

The judgment does not reflect upon the defendant, who was not a party to the duress.

lTlie judgment must be affirmed, without costs.

Dykman, J., concurred.

Barnard, P. J.

(dissenting):

The parties were married on the 18th of October, 1883. The papers show that the plaintiff was the putative father of an illegitimate child to be born by the defendant. The parties and the families of the parties were both Boman Catholics. The defendant made her condition known to the priest, and he saw the plaintiff. He denied his offense, and the priest told him that the father and brothers of the girl were resolute, fierce men, who would avenge the destruction of her honor. Subsequently, the plaintiff confessed his guilt to the priest and said he was willing to marry the defendant and make the child legitimate, but that he would not live with her. They were married. The proof of threats is very slight, and is not unusual in cases similar to the one under consideration. There is apparent no real threat which was at all likely to result in violence. Passionate words would be natural, where the social wrong was so great, from father and brothers. The consent was at last given from a sense of duty, and all threats defied beyond legitimatizing the unborn child. The lapse of time is so great that equity should not sever the bond. It was over eight years after the marriage that the complaint was made.

The judgment should be reversed, with costsj and a new trial granted.

Judgment affirmed, without costs.


author: Barnard, P. J.:

text:
    John J. Treanor and Others, as Commissioners, etc., Plaintiffs, v. Charles F. Eichhorn, Defendant.

      A statute, limited by population only, is a general and not a local act. .

    An act embracing all things oí a certain class is a general and not a local act, although, by reason of a limitation based on population, only a single locality can receive its benefits.
    Chapter 493 of the Laws of 1892, entitled, "An act to provide for the construction of highways and'bridges upon highways running through two cr mqre towns of the same county,” is not in conflict with section 18 of article 3 of the Constitution of the State of New York.
    Submission of a controversy on an agreed statement of facts under section 1279 of the Code of Civil Procedure.
    Charles F. Eichhorn made a bid, which was accepted, for five bonds issued by the town of Greenburgh under the provisions of chapter 493 of the Laws of 1892. He refused to complete his purchase on the ground that chapter 493 of the Laws of 1892, “An act to provide for the construction of highways and bridges upon highways running through two or Inore towns of the same county,” was unconstitutional, in that it violated one of the subdivisions of section 18 of article 3 of the Constitution of the State of New York.

      Joseph F. Daly, for the plaintiffs.

      William A. Jay cox, for the defendant.
   Barnard, P. J.:

Chapter 493 of the Laws of 1892 is not a local or private act. It is, by its terms, made applicable to the entire State where the conditions exist. The procedure to lay out roads partly in one town and partly in another, was an inconvenient and uncertain method. The commissioners of highways of each town laid out the part in the town to meet a road actually laid out through the adjoining town, or proposed to be laid out therein. There were separate appeals from each order, with a possible conflict in flie result of the separate appeals. The limitation of the act to counties where there is an adjoining city of 1,000,000 of inhabitants or over, does not make the act, otherwise general, a local act. It still applies to the whole State where any county in it adjoins so large a city. (People ex rel. N. Y. Electric Lines Co. v. Squire, 107 N. Y. 593.)

An act embracing all things of a certain class is a general and not a local act, although by reason of a limitation based on population, only a single locality can receive its benefits. (Ferguson v. Ross, 126 N. Y. 459; Matter of N. Y. Elevated R. R. Co., 70 id. 328.).

Under these cases the act in question does not conflict with section 18 of article 3 of the Constitution of the State which prohibits the passage of a local act laying out roads.

Judgment should, therefore, be given for the plaintiffs upon the submitted case.

Dykman, J., concurred.

Judgment for plaintiffs upon submitted case.


author: Dykman, J.:

text:
    Abram B. Mersereau and Another, Respondents, v. Annetta Villari, Appellant.

      Acceptance of an order — obligation created thereby — when not absolute.

    Every acceptance of a draft or order constitutes an agreement to comply with the-request contained in the instrument. It is an undertaking to pay according to the request when the draft or order falls due.
    The firm of Keeley & Son contracted with Annetta Yillari to erect a house, for which she agreed to pay them $1,600 in four installments of §400 each. Keeley & Son gave an order to Mersereau Brothers upon her for §349.54 to be paid out of the last payment to become due on such contract, which order was-accepted by her.
    An action brought to enforce the collection of such order was defended upon the ground that the contractors had failed to perform their agreement, and that the last payment, therefore, never became due to them.

      Held,, that the contract, the order and its acceptance, must be construed together; That the obligation of the defendant was not absolute, but depended upon the-contingency of the contractors earning the last payment;
    That, if without the fault of the defendant, no part of the last installment became-due under the contract, the payment of the order did not become obligatory upon her, but that, if the defendant wrongfully prevented such contractors from completing the house, she was liable upon the order.
    Appeal by the defendant, Annetta Yillari, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 5th day of May, 1893, upon tlie Arerdict of a jury rendered after a trial at tlie Richmond Circuit, and also from an order entered in said clerk’s office on the 9th day of June, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Robert W. Todd, for the appellant.

      W. J. Powers, for the respondents.
   Dykman, J.:

This is an appeal from a judgment entered upon the verdict of a jury, and also from an order denying a motion for a new trial made upon the minutes of the court.

The action was based upon a written instrument in these words :

“ Port Richmond, April 18, 1892.
“ Annette Villair will please pay to Mersereau Bros, three hundred and forty-nine 51-100 dollars out of last payment to become due me on my contract with you for the erection of a house on Bay .street, Clifton, Staten Island.
“DENNIS KEELEY & SON.”

Written across the face of the paper were these words: “ Accepted. Annetta Villari.”

It appears from the case that the defendant made a contract with Keeley & Son for the erection by them of a house for her, for Avhich she agreed to pay them $1,600 in four installments of $100 each.

The plaintiffs furnished materials to the contractors for the construction of the building, and the contractors gave them the order therefor as we have already stated.

' The action was defended upon the ground of the failure of the contractors to perform their agreement, and so that last payment never became due them.

It is to be stated at the outset that the contract, the order and acceptance, must be construed together, and considered in connection with each other.

Every acceptance of a draft or order constitutes an agreement to comply with the request contained in the instrument. It is an undertaking to pay according to the request when due.

By the acceptance of the order the defendant became liable to -pay the order out of the last payment to become due Keeley & Son, under their contract with the defendant for the erection of the house.

The obligation of the defendant was not, therefore, absolute, but was dependent upon the contingency of the earning of the last payment by the contractors.

If, therefore, without the fault of the defendant, no money became due under the contract upon the last installment, the payment of the order did not become obligatory.

But the defendant cannot set up her own default to render the order inoperative; she could not wrongfully prevent the creation of the fund, and then set up its failure as a defense to an action on the draft. (Gallagher v. Niohols, 60 N. Y. 438; Risley v. Smith, 64 id. 516 ; Home Bank v. Drumgoole, 109 id. 65.)

It was claimed upon the trial that the contractors were wrongfully prevented from completing their contract by the defendant, and there was some testimony to support that contention.

The trial judge, therefore, charged the jury in accordance with his ruling upon the motion for a nonsuit, that the real question narrows itself right down to this: Whose fault was it that Mr. Keeley did not finish this house? If it was his own fault, Mr. Mersereau, who really is a disinterested party in this transaction and has nothing to do with the relations of these other parties except his interest in getting his money, must lose his money as against this defendant. Of course, he has a claim against Mr. Keeley, notwithstanding that. But if Mr. Keeley was not in fault, and Mrs. Yillari wrongfully prevented him from finishing .the house, then Mr. Mersereau is entitled to recover this amount of money.

There- was no exception to this charge, bxit the question is raised by the denial of the motion to dismiss the complaint.

The jury found a verdict for the plaintiffs for the amount of their claim, and so must be presumed to have found that the defendant wrongfully prevented the contractors from finishing the house.

Under the authorities to which we have referred, the verdict is in accordance with well-established rules of law and the judgment and order should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


author: Dykman, J. :

text:
    In the Matter of the Arbitration of the Subject in Dispute Between Paul C. Grening, Respondent, and George Malcom, Appellant.

      Arbitration proceedings — wbitratord oath and that of the witnesses — setting aside the awaA'd — umpire, how chosen — his duties — when judgment cannot be entered on an awa/i’d.

    In an arbitration it is a peremptory requirement that the arbitrators selected, before hearing any testimony, must be sworn faithfully and fairly to hear and examine the matters in controversy, and to make a just award according to the best of their understanding, unless their taking an oath is waived by the written consent of all the parties to the submission or their attorneys, and a failure to take such oath is sufficient to justify a court in vacating an award made by the arbitrators.
    The same rule applies to the failure to administer an oath to witnesses.
    Where an agreement for arbitration showed that the selection of an umpire was authorized in a certain contingency, but the method by which he was to be chosen was not prescribed, it is necessary to follow the statute, which requires the appointment to be in writing.
    Such umpire must sit with the original arbitrators upon the hearing, and if testimony has been taken before his appointment, the matter must be reheard, unless such rehearing is waived.
    If two arbitrators are appointed, with power to choose a third, and the award of two is valid, then the colleague must be appointed before any step is taken in the reference, but when two arbitrators, who are rmable to agree, exercise a power bestowed by the agreement to appoint a third, the authority to make an award is vested in them jointly, and even if an award made by two is valid, it must appear to have been the result of the joint deliberations of them all.
    Under an agreement of arbitration, the authority of the two original arbitrators was limited to the first day of February, at or before which date they were authorized to appoint an umpire.

      Held, that on such day, they having previously selected an umpire, their official authority expired. That before that time the umpire had no authority, but that thereafter he became invested with the same powers as the arbitrators, and was bound by the same rules and required to perform the same duties, and to hear all the testimony produced even though the same witnesses had been examined before the arbitrators,
    A judgment cannot be rendered upon an award made in pursuance of the submission of a controversy to arbitrators when the award is not acknowledged, proved or certified according to. the requirements of section 3372 of the Code of Civil Procedure.
    Appeal by George Malcom from so much, of 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 6th day of. May, 1893, as vacated and set aside an award made by arbitrators, and all the proceedings had under an agreement of submission to arbitration, and from so much thereof as decided that such award was without prejudice to the rights of the assignees of the claim of Paul O. Grening against said George Malcom.

      James Troy, for the appellant.

      Richard T. Greene, for respondents Berry, Wisner, Lohman & Co.
    Thornton, Earle & Kiendls, for respondent Grening.
   Dykman, J. :

Paul C. Grening commenced an action in the Supreme Court against George Malcom for the recovery of $7,500, as commissions for the sale of the stock and bonds of the Malcom Brewing Company.

After the commencement of the action Grening assigned the claim to Berry, Wisner, Lohman & Co., as collateral security for an indebtedness to that firm.

Thereafter’, on the 13th day of December, 1892, Malcom, Grening and his assignees made an agreement in writing to submit all questions in dispute relating to the amount owing by Malcom to Grening for services performed by Grening for Malcom, to William Lamb and I. Crider Lee, as arbitrators.

The submission contained a covenant that the award to be made fey such arbitrators would be observed and performed, provided the same was made in writing under the hands of the arbitrators ready for delivery on or before the 1st day of February, 1893.

The submission provided further that in ease the said arbitrators did not so make their award on or before such day, then the questions were to be and were thereby submitted to the decision of such third person as should be then or should theretofore havé been appointed in writing by such arbitrators to act in such case as umpire, and it was then provided that any award made and ready for delivery on or before the 1st day of March, 1893, should be valid and binding upon each of the parties in like manner as if it had been made by the arbitrators first named.

Then followed other provisions in the submission not material to the determination of the questions involved in this appeal.

The agreement was under seal and signed by Malcom, Grening and Berry, Wiener, Lohinan & Co., and its execution was duly acknowledged.

Previous to the commencement of the proceedings before the arbitrators, Grening and Malcom signed a written stipulation by which it was agreed that the oaths of the arbitrators, of the umpire and of the witnesses, and any informality, irregularity or defeet in carrying out the agreement of arbitration, and each of them, were waived.

Grening and Malcom and the two arbitrators, Lamb and Lee, met, and Grening, Malcom and a Mr. Offerman were examined at some length, and at the close of such examination the arbitrators proceeded to the election of an umpire. The election was by lot, whatever that may mean, and Joel B. Erhardt was chosen to act as umpire.

It does not appear that the umpire either sat with the original arbitrators or heard the testimony of the parties in any way, and one of the grounds stated in the notice to vacate the award is his failure to hear the case.

On the 13th day of February, 1893, the umpire made an award in writing in which he stated that he did not find evidence sufficient to warrant the assumption that Grening was a promoter, but that he was entitled to payment for his services, and fixed the amount at $1,500.

Neither the arbitrators nor the umpire took any oath, and no notice of any of the proceedings before them was given to the assignees of the claim.

The assignees made a motion at the Special Term to vacate and set aside the award and all the proceedings liad under the agreement to arbitrate. The motion was granted as to the assignees, and Malcofn has appealed from the order.

Arbitrations and the submission of cases to the courts upon stipulated facts are simple and inexpensive methods of settling disputes growing out of business transactions.

In both proceedings, however, certain rules have been prescribed which must be followed and obeyed to secure a valid result.

In arbitrations it is now a peremptory requirement that the arbitrators selected, before hearing any testimony, must be sworn faithfully and. fairly to hear and examine the matters in controversy, and to make a just award according to the best of their understanding, unless the oath is waived by the written consent of the parties to the submission or their attorneys. (Code Oiv. Proc. § 2369.)

In this case no oath was administered to the arbitrators or the umpire, and they were not sworn in any way. Neither was the oath waived by Berry, Wisner, Lohman & Co., nor their attorney.

The omission of the oath was erroneous and sufficient to justify the court in vacating the award.

It is important in all judicial proceedings to secure impartiality, and it is common knowledge that each of the parties to an arbitration select one of the arbitrators.- Being so selected, their oath is designed as a protection to the parties and insures freedom from the operation of bias. (Day v. Hammond, 57 N. Y. 484.)

The same rule applies to the failure to administer an oath to the witnesses.

In reference to the choice of an umpire, a reference to the agreement shows that such selection was authorized in a certain contingency, but the method by which he was to be chosen was not prescribed. In that case it was necessary to follow the statute, which requires the appointment to be in writing. (Code Civ. Proc. § 2367.)

It is not easy to understand the mode of appointment pursued in this case. The record says the election of an umpire to serve on the committee of arbitration was proceeded with; that the election was by lot, and Joel B. Erhardt was selected to act as umpire.

The term “lot” signifies chance, or that which happens without design or forethought, and at least we are authorized to conclude that this umpire was selected in some irregular and unjustifiable manner.

In the next place, the failure of the umpire to sit with the arbitrators, or to cause a new hearing, is assigned for error, and seems to fall under condemnation.

It is now provided by statute that an umpire must sit with the original arbitrators upon the hearing, and if testimony has been taken before his appointment the matter must be reheard, unless such rehearing is waived. (Code Civ. Proc. § 2361.)

In relation to the time when the umpire should be appointed we have no statutory provision. No general rule can be enunciated for all cases, because the agreement usually controls the question. If two arbitrators are appointed, with power to choose a third, and the award of two is valid, then the colleague must be appointed before any step is taken in the reference, the reason being that the parties are, in that case, entitled to the benefit of the judgment of all three on the whole case.

Rut when two arbitrators, who are unable to agree, exercise a power bestowed by the agreement to appoint a third, the authority to make an award is vested in them jointly, and even if an award, made by two, is valid it must appear to have been the result of the joint deliberations of all.

In this case the two arbitrators had power to make an award themselves, provided they did so on or before the 1st day of February, 3 893, and if they did so they had no authority to appoint an umpire.

But if they failed to so make their award, then the questions were to be submitted to the decision of such third person as should be then or should theretofore have been appointed in writing by said arbitrators to act in such case as umpire, and the award so made and ready to be delivered on or before the 1st day of March, 1893, was to be valid and binding.

It thus appears that the authority of the original arbitrators was limited to the first day of February, except for the purpose of appointing an umpire, and as they had previously selected an umpire their authority expired on that day. They then became functus officio, their official authority ceased and their occupation was gone.

Before that time the umpire had no authority, but after that he became invested with the same powers as the arbitrators. He was bound by the same rules, and required to perform the same duties. It became necessary for him to pursue the same course in the conduct of the trial, give the same notices to all the parties to the submission and hear all the testimony produced, even though the same witnesses had been examined before the arbitrators. He could not use the testimony taken before the arbitrators. (Russell on Arbitrations, 228; Elmendorf v. Harris, 23 Wend. 628; Day v. Hammond, 57 N. Y. 485; In re Salkeld & Slater, 12 Ad. & Ell. 767.)

The underlying principle lor this rule is that parties are entitled to a hearing before all judicial tribunals, and no one should be condemned unheard.

The reason of the rule applies with augmented force in this case as it is a-case of pure umpirage where the decision rested solely with the umpire.

The failure to give a rehearing was as mischievous and unjust as it would have been to proceed without a hearing in the first instance, and the omission is fatal to the award. (West Jersey R. R. Co. v. Gibson, 6 C. E. Green, 205; Bulson v. Lohnes, 29 N. Y. 291.)

If it be said that this conclusion involves the necessity of two trials, the answer is that such result is the consequence of the agreement of the parties. Their submission can be carried into practical effect in no other way consistent with the rules of law applicable to arbitrations.

In relation to the claim of waiver by the stipulation of Malcom and Grening and the general appearance in the case of the latter, it is sufficient to say that he had no authority to bind his assignees and they were parties to tbe submission.

It was provided in the agreement that a judgment should be rendered upon the award made in pursuance of the submission, but that cannot be done, because the award was not acknowledged, proved or certified according to the requirements of the Code. (Code Civ. Proc. § 2372.)

Our examination shows that the proceedings are overlaid and intertwisted with error.

They are violative of the fundamental principles of law which control judicial tribunals in the administration of justice.

These independent tribunals set up by the parties to a controversy are sufficiently irresponsible and beyond the reach of the courts, even when restrained by the rules of law provided for their direction, and when their proceedings are not conducted in subordination to such rules the only remedy within reach of the parties is to set aside the result of such illegal action, as there is usually no remedy by appeal.

Tlie Legislature lias provided tliat the court must set aside the award of arbitrators in several cases, and the specifications are very comprehensive, including any misconduct by which the rights of any party have been prejudiced. (Code Civ. Proc. § 2374, subd. 3.)

In this case the rights of Perry, Wisner, Lolnnan & Co. have been prejudiced by the misbehavior of the arbitrators in the sense of mismanagement, and it thus became the imperative duty of the court to vacate the award.

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

Barnard, P. J., and Pratt, J., concurred.

Order affirmed, with ten dollars costs besides disbursements.


author: Barnard, P. J.: Pratt, J.:

text:
    Christopher O’Conor, Respondent, v. Oscar Edward Philipsen, Appellant, Impleaded, etc.

      An agreement to pay a portion of an admitted debt in settlement of the whole thereof 'is mid — failure to convey the whole land agreed to be sold — the purchaser’s right to offset damages.

    An agreement to pay a portion of an admitted debt in settlement of the entire claim is invalid, but where there is an actual dispute between the parties as to the amount due from one to the other, they may settle the controversy for themselves, and such settlement is binding upon them both.
    Where a farm, said to contain 100 acres, is purchased for agricultural purposes, and the land conveyed contains forty or more acres less than the amount agreed to be sold, the purchaser has a right to recover damages for such deficiency.
    Appeal by the defendant Oscar E. Philipsen from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 30th day of June, 1893, upon the decision of the court rendered after a trial at the Westchester Special Term.
    This action was brought by Christopher O’Conor to have adjudged to be void an agreement for the substitution of certain promissory notes for a bond, to compel the defendant Oscar Edward Philipsen to deliver such bond to him, and to foreclose a certain mortgage.
    The trial court found that the agreement made between Oscar Edward Philipsen. and the then owner of the bond for $680, referred to in the complaint, whereby such bond was surrendered in consideration of the payment to the owner thereof of forty dollars in cash and the giving of two notes for $100 each, was made without consideration, and that the plaintiff was entitled to the usual judgment of foreclosure and sale of the mortgaged premises and to costs.

      Wilson Brown, Jr., for the appellant.

      Thomas W. Butts, for the respondent.
   Barnard, P. J.:

Patrick McCarty gave a deed of land to the defendant Philipsen. The description in the deed covered two pieces of land, one of twenty-five and one of fourteen acres. The consideration for the deed was $2,250. There was a mortgage of $800 oii the property and judgments against the grantor, which were liens on the land. Philipsen took the property subject to the mortgage and also subject to the judgments, and gave the mortgage in question for $680. The sale was made for McCarty through one Sweeny, a real estate broker. In April, 1891, McCarty agreed with Philipsen to take two promissory notes for $100 each and forty dollars in cash in full satisfaction of the bond accompanying the mortgage. The cash was paid and the notes given, and the bond was delivered to Philipsen with a receipt in writing on it stating that the same was paid in full. The first note was paid subsequently, but when the second became due and payment was tendered,'it was refused, and this action was brought by McCarty’s assignee alleging that the settlement was procured by fraud. There is an entire failure of proof to show fraud in the settlement. The mortgagee, McCarty, was accompanied by his friends, Wiinbenny and Scanlon. They both testify to a fair agreement to settle the claim. Philipsen claims misrepresentation as to the quantity of the land sold and as to its power to produce. It appears on all sides that the agreement stated the land to be over 100 acres; that the deeds did not give the real amount of land. It appeared that an actual survey developed an area of fifty-eight or fifty-nine acres only. The land is proven to be worth twenty-five dollars to thirty-five dollars an acre. The farm was bought for agricultural purposes and the purchaser had the right to claim damages for this deficiency of forty or more acres. (Schu maker v. Mather, 133 N. Y. 590; Paine v. Upton, 87 id. 327; Keenan v. Bird, 60 Hun, 175.)

It was under this state of facts that the parties settled. A man may settle a disputed claim and the settlement be good and bind both parties. Philipsen constantly claimed that he had been cheated both in quality of the land and in the misrepresentation as to the amount of it. The settlement was good. (Dunham v. Griswold, 100 N. Y. 224; Kroner v. Heim, 75 id. 574; Babcock v. Bonnell, 80 id. 244; Wilson v. Randall, 67 id. 338; Brooks v. Moore, 67 Barb. 393; Beach v. Endress, 51 id. 570.) .

The facts of - the case differ entirely from the facts in cases where it is held that an agreement to pay a portion of an admitted debt in settlement of the entire claim is invalid. The case does not stand upon this principle, but on a principle held without deviation, that where there was actually a dispute as to the amount due from one party to another, the parties may settle the controversy for themselves.

The judgment should be reversed and a new trial granted, costs to abide event.

Pratt, J.:

The bond and mortgage became due in December, 1888, and were for upwards of $600.

In April, 1891, defendant paid the holder forty-eight dollars in cash and gave him two notes of $100 due in one and two years.

Defendant claims that these were given in discharge of the mortgage and the witnesses present corroborated him in that respect. The fact that the interest then due was much less than $240 is also a circumstance in favor of defendant.

On the other hand, the holder of the mortgage testifies that he did not understand that the mortgage was to be discharged and did not intend to release the whole claim.

As the holder of the mortgage was illiterate, not able even to write his own name, and also had been drinking considerably at the time of the negotiation, it may well be that all the parties intend to speak the exact truth.

Yery likely an intelligent person, in full possession of his faculties, would have understood from the discussion that defendant expected to extinguish the whole claim by the $240 in cash and notes. The weight of evidence seems to be that way.

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

Dykman, J., not sitting.

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


author:
Barnard, P. J.:
      Pratt, <T.:

text:
    Charles S. Clark, Respondent, v. The Exchange Printing Company et al., Appellants.

      M'audulent conspiracy — damages — admissions by individual defendants — unsatisfled judgments as evidence of insolvency.

    What evidence justifies a jury in finding a verdict for the plaintiff in an action brought to recover damages alleged to have been sustained by reason of the defendant’s fraudulent conspiracy.
    The existence of unsatisfied judgments against 'a corporation (not a party to the action) is proper evidence upon the question of its insolvency. (Per Pratt, J.)
    In an action brought against several defendants, where the complaint alleged the plaintiff’s damage to have arisen from the fraudulent conspiracy of the defendants, evidence of admissions made by individual defendants is proper, when the jury is charged that the statements of each defendant are evidence only against the party making- them. (Per Pratt, J.)
    Appeal by the defendants, The Exchange Printing Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of July, 1892, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also an appeal by the defendant Alva E. Davis from an order entered in the said clerk’s office on the 15th day of July, 1892, denying the defendants’ motion for a new trial.
    The complaint in this action alleged “ that, by reason of the premises and the said fraudulent conspiracy and schemes of the said defendants, the plaintiff has sustained damages to the amount of $4,000, for which sum, with interest and costs, he demands judgment against the defendants.”
    Upon the trial, under the defendants’ objection, certain unsatisfied judgments against the defendant the American Magazine Company were offered and received in evidence.

      Charles De Hart Brower, for the appellants.

      Frederic A. Ward, for the respondent.
   Barnard, P. J.:

The plaintiff is a dealer in paper. The defendant printing company printed and published the American Magazine for tlie American Magazine Company. The defendant Davis was the manager of the American. Magazine Company. The defendant Pitch was tlie manager of the Exchange Printing Company, and made orders for paper with the assent of • the magazine publishing company, ■ which became insolvent, with a large debt due to tlie defendant printing company. The plaintiff’s case is based upon the allegations that after the insolvency of the magazine publishing company the Exchange Printing Company and Pitch, its manager, and Davis, manager of the bankrupt magazine publishing company, continued to order and obtain of the plaintiff a large amount of paper, so that the defendant printing company could levy upon it on account of the indebtedness to it from the magazine publishing company. The jury has found that the defendants did this, and, therefore, returned a verdict for the amount of the property acquired in this way and for this purpose. It was proven that defendant Davis knew of the insolvency of the magazine company when lie ordered tlie paper in question. Fitch knew it. The Exchange Company profited by it. The testimony is sufficient to support the verdict of the jury. The bankrupt magazine company sold to the printing company’s clerks paper obtained for the magazine, and then ordered new paper, which the printing company caused to be seized under execution in its favor.

The proceedings to obtain judgment by the printing company were conducted by an attorney common to all the parties and companies. Marks óf secrecy and design to defraud the plaintiff are visible everywhere.

The jury arrived at a proper conclusion upon the facts, and, therefore, the judgment and order denying a new trial should be affirmed, with costs.

Dykman, J., concurred.

Pratt, <T.:

The charge of the court was as favorable to defendants as the law warranted, and'we do not find any errors in the admission of evidence.

The verdict of the jury is sustained by the evidence, and there is no ground on which the court should interfere.

The appellants object that the judgment records introduced, not being against these defendants, were improperly admitted. The Circuit judge pointed out the grounds on which they were admissible, viz., to show the insolvency of the judgment debtor.

If the existence of judgments unsatisfied do not tend to prove insolvency, it is not easy to see how it can be proven.

It is argued that some of the admissions made by individual defendants should have been stricken out.

We think the rule of law was satisfied when the jury were charged that the statements of each defendant were evidence only against the party making them.

The judgment should be affirmed, with costs.

Judgment and order denying new trial affirmed, with costs.


text:
    Christine Beltz, Respondent, v. The City of Yonkers, Appellant.

      Defect in a city sidewalk —a pedestrian may assume it to be in good repair — constructive notice of the defect to the city. '

    A person has the right in walking along a street to assume that the city authorities have performed their duty, and that its sidewalks are safe.
    Upon the trial of an action brought to recover damages for injuries sustained by a fall upon a sidewalk of a city, it was shown that a triangular piece had been broken off the adjacent outside corners of two flagstones, leaving a hole twenty-six inches on the longest side, and five inches in the widest place, in the middle of the walk, which had been there for about four years.

      I-Ield, that the evidence was sufficient to charge the city with constructive notice of the existence of the defect in its sidewalk;
    That it was sufficiently dangerous to attract attention.
    Appeal by the defendant, The City of Yonkers, from a. judgment of the Supreme Court, made on the 12th day of June, 1893, and entered in the office of the clerk of the county of Westchester, upon the verdict of a jury rendered after a trial at the Westchester Circuit, and also from an order made on the 9th day of June, 1893, and entered in said clerk’s office, denying the defendant's motion for a new trial made upon the minutes.

      James M. Hunt, for the appellant.

      John F. Brennan, for the respondent.
   Dykman, J.:

This is an action for the recovery of damages resulting from injuries sustained by a fall upon a sidewalk. At the place where the plaintiff fell the sidewalk was eight feet wide, and consisted of two rows of stone flagging, each row1 being four feet wdde. A small triangular piece had been .broken off the outside corners of two of the flagstones of the inside row of flagging where they joined the outside row. The piece broken off from each stone was about thirteen inches on the longest side, and tapered to a sharp point When both pieces were out they left a hole twenty-six inches long on the longest side, five inches wide in the widest place, tapering to a point each way, and two inches deep on the day of the accident. The hole was in the middle of the walk, and had remained there for about four years.

The evidence tended to show that the plaintiff was walking over this sidewalk on a rainy morning in February, 1893, carrying an umbrella, when she stepped into this hole and fell, and broke both bones of her leg.

There was but little dispute respecting the facts, and the jury rendered a verdict in favor of the plaintiff for $5,000.

From the judgment entered upon the verdict and from an order denying a motion for a new trial upon the minutes of the court the defendant has appealed to this court.

So we have presented the questions usually involved in an action sounding in negligence.

In respect to the negligence of the defendant, however, the evidence was sufficient to charge it with constructive notice of the existence of the defect in the side-walk. It had been broken for four years, and was sufficiently dangerous to attract attention. When the earth was soft from moisture the foot of a person who stepped into the open space would sink into the ground, and in lifting it out it might become entangled or wedged between the stones, as the foot of the plaintiff doubtless did.

The exercise of proper vigilance and care by the officers of the municipality would have discovered that danger, and caused the reparation of the walk.

"We conclude, therefore, that the evidence and the circumstances disclosed justified the jury in convicting the defendant of negligence.

In relation to the contributory negligence of the plaintiff, we find no evidence of such carelessness as would have justified the trial judge in taking the case from the jury, and convicting the plaintiff of negligence as a matter of law. The plaintiff had the right to walk along the street in the expectation that the defendant had performed its duty, and that the walk was safe.

She walked in an ordinary mamjiex', and we think the jury was justified in fixxding her free from carelessness.

In relation to the daxxxages we do not find them so excessive as to justify our interference.

It is to be said respecting actions agaixxst municipal corporations which relate to defective streets or sidewalks that they are usually severe. It is practically impossible to maintain the streets and walks in a perfect coxxdition. Flagstones become depressed or bx’oken. The surface becomes uneven by the settling of some stones more than others, the earth or the pavement in the traveled portion of the streets sinks in places sufficient to break a wagon or injure a lxox’se, even when the variation is slight. There is no provision for constant inspection, and usually the public funds provided ai’e inadequate to pay for repairs which would be sufficient to avoid all accidents. Yet the courts can administer no relief so long as questions of negligence are to be submitted to courts or juries; they must be decided upon the evidence and the law applicable thereto without regard to consequences.

Our conclusion is that the judgment and order from which this appeal is takexx should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment and order denying xxew trial affirmed, with costs.


text:
    The Democratic County Committee of Queens County, Plaintiff, v. The Republican County Committee of Queens County, Defendant.

      School commissioners and districts, how changed — elected only from Assembly districts• — ■ 1856, chapter 179.
    Chapter 179 of the Laws of 1856 gives a school commissioner to each Assembly district, not as such districts existed in 1857, but as they might be in the future.
    When the Legislature changes the Assembly districts the school commissioner districts are, of necessity, similarly changed.
    There is no way in which school commissioners can be elected except by Assembly districts.
    Submission of a controversy between the Democratic County .Committee of Queens county, as plaintiff, and the Republican County Committee of Queens county, as defendant, without action, upon an agreed statement of facts, under section 1279 of the Code of Civil Procedure. ,

      F. H. Van Vechten, for the plaintiff.

      W. J. Youngs, for the defendant.
   Barnard, P. J.:

By chapter 179 of the Laws of 1856 the Legislature created the office of school commissioner for the several counties of the State. The board of supervisors was directed to elect one commissioner for each Assembly district, where a county had more than one Assembly district, and in counties having only one Assembly district the board of supervisors was authorized to divide the district whenever the school districts exceeded 11-0 in number. Queens county then had but one Assembly district, and there was no division of the district. The Legislature, by this act of 1856, provided that at the annual election of 1857 there should be elected on a separate ballot “ in the several Assembly districts ” one school commissioner. In 1857, by chapter 337, Queens county was given two Assemblymen, and the supervisors of the altered districts were directed to divide their respective counties into Assembly districts,” which was done. A school commissioner was elected for each district in 1857, and every three years thereafter until the present time. In 1861 (Chap. 555, Laws of 1861) the Legislature adopted the districts as recognized by the election of 1863, and declared in the second section of such act that these districts for the election of school commissioners should continue to be held and regarded as school commissioner districts, except “ as the same shall be altered ” by the Legislature.

By chapter 397, Laws of 1892, Queens county was given three members of Assembly, and the supervisors, by direction of the Leg-, islatnre, divided the county into three Assembly districts, and the question presented is, whether the school commissioner districts are changed without a specific legislative declaration to that effect other than is involved in the change of the Assembly districts. We think that the change of the Assembly districts was a change of the school commissioner districts. There is no power by which a school commissioner can be elected except by Assembly districts under the Laws of 1856 and 1861. When the Legislature changes the Assembly districts, of necessity the school commissioner districts are changed; otherwise there can be no legal election of school coim missioners in the several Assembly districts. One part of the old Assembly district is not included in the new, and there is no provision for an election in a school commissioner district made up in part by territory lying in two,separate Assembly districts. The law of 1856 stands, and the discrepancy between its requirements and the Laws of 1892, reapportioning Queens county into three Assembly districts, cannot be considered as a basis for the position taken by those who claim to elect two school commissioners in Queens county, not in the Assembly districts under the existing election laws, but under districts which are other and different from the Assembly districts. The law gives a school commissioner to the Assembly district, not as it was in 1857, but as such Assembly district may be made in the future. The judgment of the court on the submitted case is, that the county of Queens school districts are the same as the Assembly districts, and there must be a commissioner elected at the coming election, one for each Assembly district, with the exception of Long Island City, which forms a separate Assembly district and has its own school law.

Dykman and Pratt, JJ., concurred.

Judgment upon submitted case, that a school commissioner be elected in each Assembly district in Queens county outside of Long Island City.


author: Pratt, J.:

text:
    Michael Moore, Appellant, v. John Duffy, as Sheriff, etc., et al., Respondents.

      A receiver’s title to real estate — interest remaining in the judgment debtor — action to apply the land on the judgment — parties.
    The title of a judgment debtor to real estate vests in the receiver of his property, upon the filing of his appointment in the proper office.
    The receiver’s title is a qualified one, in the nature of a security for the plaintiff in the judgment. Subject to the right of the receiver to resort to the land to pay the judgment, the title remains in the judgment debtor, and a conveyance of such real estate by him transfers the title thereto, subject to the claim of the receiver. Such receiver is a necessary party to any action brought to apply the land to the payment of the judgment.
    Appeal by tbe plaintiff, Michael Moore, from an order and judgment of the Supreme Court, entered in the office of the clerk of the county of "Westchester on the 28th day of September, 1888 (and subsequently resettled), sustaining the demurrer of the defendants, Patrick Farrell and others, to the plaintiff’s complaint.
    The complaint alleged that on May 10, 1886, Michael Moore recovered a judgment against one Patrick Farrell, which was docketed in the office of the clerk of the county of Westchester on the same day, and an execution was issued thereon, by virtue of which the sheriff levied upon the interest of Farrell in certain real estate, and after due advertisement exposed the same for sale, and on October 4, 1886, sold the same to Moore for the sum of thirty dollars and three cents; whereupon the sheriff delivered his certificate of the sale thereof to Moore, certifying thereby that the sale would become absolute, and that Moore would be entitled to a deed from him of such land unless the same should be redeemed agreeably to the provisions of the statute; such certificate of sale was thereupon filed in the office of the clerk of Westchester county, and thereafter the sheriff returned the execution wholly unsatisfied.
    That on November 5, 1886, an order was made in supplementary proceedings brought upon such judgment, which contained the usual inj unction clause. The judgment debtor duly attended before the judge, as directed by such order, and on November 10,1886, an order was made alppointing John Ii. Clapp receiver of all the property, debts, equitable interest, rights and things in action, effects and estate, real or personal, of said Patrick Farrell, which order enjoined and restrained Farrell or his agents from making or suffering any transfer of, or interference with, his property not exempt from seizure by section 2463 of the Code of Civil Procedure, or in which lie was in anywise interested, except in obedience thereto.
    That Clapp duly qualified as such receiver in accordance with the provisions of the order, which was duly filed in the office of the clerk of the county of "Westchester on November 10,1886.
    That on December 8, 1886, Farrell with his wife, in consideration of the sum of one dollar, wrongfully and unlawfully, in disobedience to, and in violation of, such order, made, executed and delivered to one Patrick Costello a full covenant warranty deed, dated on that day and recorded on December 13,1886, in the office of the register of Westchester county, by which Farrell purported to convey to the said Costello the premises in question.
    That on December 14, 1886, said Costello obtained from the sheriff of the county of Westchester a sheriff’s certificate made and executed.by such sheriff in which it was recited that the said Costello had paid to the sheriff the sum of thirty dollars and three cents, the amount realized by the latter upon the sale of such premises under the execution, with interest, and that the said Costello claimed the right to redeem as a grantee of the judgment debtor, under a deed of such premises, whereby it was certified that the premises in question had been redeemed by said Costello, which certificate of redemption was recorded in said clerk’s office on December 14, 1886.
    That said Costello was then in possession of the premises in question, claiming to own the title to the same in fee simple, and that the deed of Farrell and wife to Costello, and that the certificate of redemption given by such sheriff to Costello, were wholly null and void.
    That after the expiration of fifteen months from the date of the sale of such premises under execution, Moore duly demanded from the sheriff the deed conveying to him the premises, but that the sheriff neglected and refused to deliver th^ same to him.
    The relief demanded was for a decree ordering and adjudging that the deed from Farrell and wife to Costello, and the certificate of redemption given by the sheriff to Costello, were null and void, and for an order directing that the said sheriff execute and deliver to the plaintiff his deed of the premises in question, and for such other and further relief as might be just.
    The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and that there was a defect of parties in that the receiver of Patrick Farrell was not made a party to the action.

      Frederick W. Sherman, for the appellant.

      F. M. Thompson, for the respondent Farrell.

      L. C. & W. P. Platt, for the respondent Costello.
   Pratt, J.:

The title of the judgment debtor vested in the receiver on filing his appointment in the proper office. But it was a qualified title in the nature of a security for the plaintiff in the judgment.

As the case contains nothing to show that the title of the receiver has ceased, we must treat it as in force.

The title vested in the receiver being qualified and limited, as stated above, did not exhaust the title of the judgment debtor. Subject to the right of the receiver to resort to the land to pay the judgment, the title remained in 'the judgment debtor, and the conveyance to Costello transferred to him the title, subject to the claim of the receiver.

He was not a stranger to the title, and his redemption was valid and nullified the sale and the certificate issued thereunder.

The sheriff correctly refused to execute a deed to Moore.

The receiver is a necessary party in any action brought to apply the land to the payment of the judgment. So, should Costello seek to discharge the land from the lien of the judgment, the receiver would be a necessary party.

The demurrer was properly sustained and the judgment must be affirmed, with costs.

Barnard, P. J., concurred; Dtkman, J., not sitting.

Judgment affirmed, with costs.


author: Barnard, P. J.: Pratt, J.

text:
    The People of the State of New York ex rel. Joseph H. Rudiger v. Frederick Earl and Others, Trustees, etc.

      Report of commissioners appointed under chapter 544 of the Laws of 1887 — cannot be adopted after the appointment of a new commission.

    Where a repfirt of commissioners appointed hy the trustees of a village pursuant to the provisions of chapter 544 of the Laws of 1887 is unsatisfactory, and a new commission is appointed, the only legal way of proceeding is through the new commission, or hy successive commissions, until a satisfactory result is reached , the report of the first commission cannot he adopted after the appointment of the second commission. (Pratt, J., dissenting.)
    Certiorari issued upon the petition of Joseph H. Rudiger to review the determination of Frederick Earl, William L. Toumine, Edward A. Howland, William A. Anderson, Albert F. Gescheidt, Louis N. Smith, George C. Appell, Henry O. Wilken, Robert W. McGowan and Edgar K. Brown, constituting the board of trustees of the village of Mount Yernon in the town of Eastchester in the county of Westchester, N. Y., upon the confirmation of an assessment laid upon property for the grading of Sixth street in said village.
    The board of trustees of the village of Mount Yernon appointed three persons as commissioners, in the matter of grading Sixth street, and thereafter such commissioners made their report, in writing, to said board of trustees, which report was sent back to the commissioners, as provided by the charter of the village, for correction and revision, and thereafter such commissioners made a corrected and final report. Such amended and corrected report was unsatisfactory to the board, which, by resolution, disapproved of the second report, and appointed three new commissioners to assess the cost of the improvement to Sixth street. The new commission made its report in writing to the board of trustees. Thereafter, by a resolution of such board, the resolution disapproving the second report of the first commission was rescinded, the resolution appointing a new commission was revoked, and it was resolved that the second report of the first commissioners be confirmed as made.

      Robt. P. Getty, Jr., and Chas. F. Moody, for the relator.

      David Swits, for the respondents.
   Barnard, P. J.:

The full record of the proceedings which preceded the appointment of commissioners to assess the cost of improving Sixth street, in the village of Mount Yernon, are not returned. The regularity of the appointment of Commissioners Adee, Pendergrast and Toumine must be assumed. They were required to take an oath that they would fully and faithfully discharge the duty devolved upon each of them by the appointment. They did take such oath and the appointment was complete. The first report was disapproved of by the trustees and sent back for correction. This was proper and according to chapter 544, Laws of 1887, title X, section 20. A second and corrected report was made and returned to the trustees. This report was unsatisfactory to the trustees and a new commission was appointed. This was in accordance with legislative power given by section 20, to “ send back to the same or other commission.” The new commission made an appraisal, and the trustees refused to confirm this appraisal, vacated the appointment of the new commission and adopted the second report of the first commission. By the appointment of the new commission the second report of the first commission was abrogated, and the only legal method of procedure was through the new commission or by successive commissions until a satisfactory result was reached.

The proceedings should, therefore, be reversed, with costs and disbursements.

Dykman, J., concurred.

Pratt, J.

(dissenting):

"VVe see no valid reason in the papers submitted for setting aside the report of the commissioners in the matter of grading Sixth street in the village of Mount Yernon.

The first objection urged by the, relator is that the commissioners did not take the oath of office required by law, which is negatived by the returns, so that this objection may be dismissed as not true. The same may be said of the objection that the commissioners were not freeholders, and not interested in or affected by said improvement.

It clearly appears by their several oaths that they were all freeholder’s and disinterested, which is sufficient proof until some evidence to the contrary appears.

The sending back of the original report of the commissioners for correction was entirely proper and within the jurisdiction of the board of trustees.

The attempt to appoint new commissioners was a nullity, as their report was never confirmed.

The only objection which seems upon its face to be of any moment is that a portion of relator’s land lies outside the village limits, but this statement like others in the petition is not true. The return shows that the district to be assessed was fixed “ from Second avenue to the eastern boundary of the village of Mount Yernon,” beyond which it could not extend. This limited the power of the commissioners, and it nowhere appears in the return that they exceeded that limit.

The assessments, so far as appears, are upon lots fronting on Sixth street, within the village limits from Second avenue to the eastern boundary line of the village.

The suit should be quashed, 'with costs and disbursements.

Assessment of relator reversed, with costs and disbursements.


text:
    The People of the State of New York ex rel. John S. Cochran v. The Board of Town Auditors of the Town of Pelham. The People of the State of New York ex rel. John Donlon v. The Board of Town Auditors of the Town of Pelham. The People of the State of New York ex rel. Michael J. Lynch v. The Board of Town Auditors of the Town of Pelham.

      Board of town auditors — jurisdiction thereof — audit of each item of a claim — ■ !' procedure — verification — reversal of determination —claims properly disallowed ¡ —review of its proceedings by certiorari.

    A board of town auditors is a tribunal created by statute to allow or reject ■ claims presented against the town Its jurisdiction is original, and in determining as to the liability of tbe town it acts judicially All claims against tbe town must be presented to and audited by tbe board, and none can be collected until audited and allowed by it
    The auditing of a claim signifies a hearing on examination, and includes its adjustment or allowance, disallowance or rejection.

      There is no mode of procedure prescribed by 'which a board of town auditors is to take proof or obtain knowledge respecting the validity of any claim presented for audit. It is the habit of such bodies to seek information from any quarter where it is obtainable, and presumably the practice is legitimate. Its members must acquire knowledge to enable them to act with wisdom in subservience to established rules. They may act upon their own knowledge acquired by observation.
    The verification of a claim has no obligatory force and may be disregarded.
    A claimant is entitled to the judgment of the board on each item of his claim.
    Although a court may reverse the determination of a board of auditors even upon questions of fact, it can only do so where there is a preponderance of evidence against its determination.
    Each of three persons presented a bill for services as a commissioner of highways of a town to the board of auditors thereof. These bills specified the date when the services were claimed to have been rendered, and the charge for each day, but did not specify the particular services or duties performed, and such persons refused to give more specific information than that such services were rendered upon the highways of the town. Such bills charged for services rendered on every week day in December after the seventh, and substantially on every week day in January and February.
    The board of town auditors audited such bills, and every item thereof, disallowing each one of such items.

      Held, that there was overwhelming evidence against such claims, and the board of auditors was justified in disallowing them;
    That to secure a review of the action of a board of town auditors by certiorari, the writ must be obtained while the board yet retains jurisdiction of the proceedings. Such jurisdiction terminates with the delivery of the abstract of accounts to the clerk of the board of supervisors, which is the last act of the board of auditors, and after such delivery a writ of certiorari will be ineffectual and fruitless.
    Certiorari issued upon thm petition of John S. Cochran, John Donlon and Michael J. Lynch to review the determination of Sherman T. Pell, supervisor, Ethan W. "Waterhouse, town clerk, John P. Hawkins, Charles H. Whaun, Gustave I. Karbach and Jerome Bell, justices of the peace of the town of Pelham, constituting the board of auditors of the town of Pelham in the county of Westchester, N. Y., in auditing and disallowing each and every item of the respective claims of the petitioners for services as highway commissioners, for services alleged to have been rendered by each of them to the said town.

      Michael J. Tierney, for the relators.

      Isaac N. Mills, for the respondent.
   Dykman, J.:

These are proceedings by writ of certiorari to review the action of the board of town auditors of the town of Pelham in "Westchester county, by which the claims of these three relators for services as commissioners of highways of that town were disallowed and rejected.

The facts upon which our decision must be based are undisputed. These relators each presented a bill to the board of town auditors for services as commissioner of highways. Those bills specified the date when the services were claimed to ha ve been rendered and the charge for each day, but did not specify the particular service or duty performed. As the bills failed to name any place where the services were rendered, and the auditors had knowledge that no appropriation was made for highway purposes in the years covered by the bills, they were not satisfied that the services for which the charges were made, or any of them, had been rendered.

Thereupon they passed a resolution requiring their clerk to notify the relators to appear before them on a certain day. They were so notified, and they appeared in pursuance of such notification. They were then examined by the board of auditors in relation to their bills, and requested to specify the places where- their services were rendered.

In reply to such request the relators simply stated that their services were rendered upon the highways of the town of Pelham, and declined to furnish more specific information.

Thereafter the board continued the consideration cf the bills from time to time until the 22d day of December, 1892, when they audited the bills and every item thereof, and disallowed each one of the items.

The defendants state in their return that they disallowed each and every item of the account, because they did not believe that any day’s services therein charged had been in fact rendered. That in so acting upon such bills and accounts they intended to pass upon and audit each and every item thereof upon the, merits, and upon the matters of fact and evidence set forth in the return.

They then state that they made and signed a certificate to the effect that the accounts had been wholly rejected by the town board and filed the same in the office of the town clerk.

There is no claim here that any legal rule of action or procedure has been violated by the board of auditors or that they have adopted any erroneous principle in their action. The claim of the relators is that the board has rejected the claims without sufficient reason. We miist determine whether they have done so.

These relators were commissioners of highways and their compensation is fixed by law at one dollar and fifty cents a day, as there were three in the town. (Laws of 1892, vol. 2, p. 2261, chap. 569, § 178.) Therefore, the only open question for the determination of the board of auditors was the number of days actually and necessarily spent by the relators in the performance of their official duties. With that question the auditors grappled and struggled. They knew that but little money was expended upon the roads during the period covered by the bills, and they could not ascertain where any labor upon them had required the services of the relators.

These auditors reside in the town and are supposed to possess or acquire such knowledge as shall be essential to enable them t® discharge their duties wisely and justly. All claims against the town must be presented to and audited by the board, and none ean be collected or enforced until it is audited and allowed by that body, which is a tribunal created by statute to hear, allow or reject claims presented against the town. Its jurisdiction is original, and in determining as to the liability of the town it acts judicially. (People ex rel. Myers v. Barnes, 114 N. Y. 323.)

The auditing of a claim signifies a hearing on examination, and includes its adjustment, or allowance, disallowance or rejection. (Myers v. Barnes, supra)

While the board of town auditors is a court organized for the auditing of claims presented against the town, there is yet no mode of procedure prescribed by which it is to take proof or obtain knowledge respecting the validity of any claim presented for audit.

It is the habit of such bodies to seek information from any quarter where it is obtainable, and we presume the practice is legitimate ; they must acquire knowledge to enable them to act with wisdom in subservience to established rules. They may act upon their own knowledge acquired by observation. Town assessors act in the same way respecting the valuation of property to be assessed.

In this case the town auditors were in the possession of knowledge which satisfied them that no time had been necessarily spent by the relators, and yet they had laid before them bills -in which the relator Cochran charged for ten days in October, 1891, every week day in November of that year, except two, every week day in December, 1891, and January and February, 1892, which are months in which no dirties are performed in this climate respecting the highways. Twelve days in March, 1892, and almost every week day in April, May, June and September, 1892, and more than half of the days in July, ,1892.

The bill of the relator Lynch is made out in substantially the same way, especially in relation to charges for every week day in December, 1891, after the seventh, and substantially every week day in January and February, 1892.

The bill of the relator Donlon is substantially in the same form down to March, 1892.

The bills were false and fraudulent within the knowledge of the auditors, and when the relators were called before them to give information, they only said the services were rendered upon the highways of the town of Pelham. That statement was false, because no work could be done upon such highways during the winter months.

Moreover, the bills of the relators are all for services rendered as commissioners of highways, which means official services, and it was simply impossible for them to spend the number of days for which they have charged in the necessary discharge of their official duties.

Their statement to the board was a confession of falsity; when requested to specify their services they failed to do so, and such failure resulted evidently from disability. If their claim had been-honest, a specification of their services would have been simple and easy.

Under such circumstances how can we interfere ? While it is true that we can reverse the determination of the board even upon questions of fact, yet we can only do so where we find a preponderance of evidence against it. (People ex rel. McAleer v. French, 119 N. Y. 502.)

Here we find overwhelming evidence against the claims. No appellate court would interfere with the verdict of a petit jury with such evidence behind it. The verification of the claims has no obligatory force and may be disregarded. (People ex rel. Bently v. Whalen, 5 Wkly. Dig. 410.)

The case of The People ex rel. Thurston v. The Town Auditors of Elmira (82 N. Y. 82) is much like this and tbe teaching of the decisions is favorable to the determination of the defendant here. In that case the auditors allowed the relator a gross sum, without allowing or disallowing any specific item of the account, and without deciding that any definite and particular days were not necessarily spent in the service of the town.

The court held that such action was not a legitimate performance of the duty of the board, and that a claimant was entitled to the judgment of the board of auditors upon each item of his claim.

That is just what these relators have received; the board of auditors audited, examined and disallowed each and every item of the accounts presented by these relators, and it is entirely evident they could have justly reached no other conclusion.

Instead of finding their determination erroneous and unsupported we think the facts and circumstances within the knowledge of the auditors, and disclosed by the record before us, would justify no other conclusion.

The falsity of the bills is stamped upon their very face, and the auditors have performed a meritorious service in protecting the taxpayers against the imposition of an unjust burden.

We have thus examined and determined the case upon the merits, because we thought it due to the parties interested and the questions involved, but we have not overlooked a legal obstruction in the path of the relators which we deem insurmountable.

To secure a review of the action of a board of town auditors by certiorari the writ must be obtained while yet the board retains jurisdiction of the proceedings. Such jurisdiction terminates with the delivery of the abstract of accounts to the clerk of the board of supervisors, which is the last act of the board of auditors. (Laws of 1892, vol. 2, p. 2261, chap. 569, § 170.)

After such delivery, therefore, the writ will be ineffectual and fruitless. (Osterhoudt v. Rigney, 98 N. Y. 280; People ex rel. Rice v. Auditors, 65 Hun, 418; People ex rel. Weekes v. Supervisors of Queens Co., 82 N. Y. 277.)

The board of town auditors of the town of Pelham delivered the abstract of tbe accounts and claims presented to and audited by tbe board to the clerk of tbe board of supervisors of Westchester county on tbe 16th day of January, 1893.

Tbe amount allowed was levied and included in tbe warrant of tbe town collector before February 27, 1893. Such warrant was delivered to tbe collector and be was engaged in its execution before tbe 15th day of April, 1893, when tbe application was made for this writ of certiorari. Tbe certiorari, therefore, brought nothing up for review, because tbe jurisdiction of tbe board of town auditors over these claims bad terminated and nothing remained before that body.. (The People ex rel. Onderdonk v. Supervisors of Queens Co., 1 Hill, 198.)

Tbe determination of tbe board should be affirmed, with costs against the relator in each case.

Barnard, P. J., and Pratt, J., concurred.

Proceedings affirmed, with costs.


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    Elwood B. Mingay, Appellant, v. Mary Estelle Lackey, Respondent, Impleaded, etc.

      Provision as to a life estate in an interlocutory judgment of pa/i'tition — expunged by an a/mendment.

    "Where an interlocutory judgment, in an action for the partition of land, directing the sale of real estate, contains a provision relating to a life estate therein, and the tenant for life dies prior to the sale thereof, the provisions of the interlocutory judgment relating to such life estate are properly expunged by an amendment of the judgment.
    The interlocutory judgment does not divest the life estate.
    Appeal by tbe plaintiff, Elwood B. Mingay, from an order of tbe Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on tbe 20th day of May, 1893, amending an interlocutory judgment entered in said clerk’s office on tbe 17th day of April, 1893, by striking out of tbe same a provision in regard to tbe sale of tbe life estate owned by a defendant who had died since the application for such interlocutory judgment.
    This action was brought for the partition of certain real property wherein the plaintiff, as the assignee of one J ames B. Mingay, had an estate as tenant by the curtesy. On April 17,1893, an interlocutory judgment was entered in the action, which provided for the computation and payment of a gross sum as the value of such life estate, to be fixed after the sale out of the proceeds thereof. On April 27, 1893, and before the sale of such property, James B. Mingay died, and thereafter an order was made by the Supreme Court amending the interlocutory judgment by striking out the provision thereof in regard to the estate by the curtesy.

      Sidney H. Stuart, for the appellant.

      Edwin S. Babcock, for the respondent.
   Pratt, J.:

The interlocutory judgment did not divest the estate by curtesy. That existed and was fully enjoyed till the death of the life tenant. The object of paying a gross sum to the life tenant out of the proceeds of the sale is to indemnify the life tenant for the estate of which he is to be deprived by the partition sale and the conveyance under it. As the life tenant died before the sale took place, the life estate thus extinguished can no longer be the subject of sale, and the provisions of the interlocutory judgment relating thereto were properly expunged by amending the judgment.

Mulford v. Hiers (13 N. J. Eq. 13) is a case of dower, but the principle is applicable here.

The order appealed from should be affirmed, with costs.

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

Order affirmed, with costs and disbursements.


author: Barnard, J.:

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    Alonzo Osborn, Appellant, v. George Stephens, Respondent.

      Malicious prosecution — proof of malice — when the place of trial should not he changed on the ground of convenience of witnesses.

    In an action brought for malicious prosecution it is necessary for the plaintiff to prove that the defendant had no probable cause to make the complaint against him and that he did so maliciously and with intent to injure the plaintiff.
    One Alonzo Osborn, who owed George Stephens a small debt for groceries, had a crop of growing tobacco and assigned the same to Stephens as security for the debt. He afterwards sold such crop and applied the proceeds to his own use. .Stephens, after the sale, agreed to loan the proceeds thereof to Osborn’s wife on her note for four months, and did so. The note was not paid, and Osborn was arrested upon a criminal charge of larceny in ’Westchester county, and taken to Tompkins county, where he was discharged.
    In an action brought by Osborn against Stephens for malicious prosecution the venue was laid in Westchester county, wherein Osborn resided.

      Held, that it could not be said that the place of the transaction was entirely in-,. Tompkins county;
    That an order changing the place of trial from Westchester to Tompkins county for the convenience of witnesses should be reversed. -
    Appeal by tbe plaintiff, Alonzo Osborn, from an order of tbe Supreme Court, made at tbe Kings County Special Term and entered in tbe office of the clerk of tbe county of Westchester on the 22d day of November, 1892, directing that tbe place of trial of tbe action be changed from tbe county of Westchester to tbe county of Tompkins.
    The venue as fixed by the summons and complaint in tbe action was the county of Westchester. A motion was made by the defendant to change the place of trial to the county of Tompkins on the ground of the convenience of witnesses, which was granted.

      A. J. Adams, for the appellant.

      David M. Dean, for the respondent.
   Barnard, J.:

The papers show that the defendant made a complaint upon a criminal charge of larceny in July, 1890, in Tompkins county. The first' arrest of the plaintiff was made in Westchester county, where he resided. There were two complaints made upon the same charge, and the plaintiff was discharged upon each complaint. The arrest and the discharge are not disputed. The complaint in tlxis actioix is for a malicious prosecution, and the plaintiff has to prove oxx the trial that the defendant had no probable cause to make the complaint, and that he did so maliciously axxd with intent to injure the plaintiff. Upon these two issues the trial should take place iix Westchester county. The facts out of which tlxe coxitroversy arose are these: The plaintiff owed the defendant a small debt for groceries sold him. lie had a crop of growing tobacco. He assigned the crop to defexxdaixt as security for the debt. The plaintiff sold the crop axid applied the proceeds to his own use. Tlxe defendaxxt, after the sale, agreed to loan the proceeds to plaintiff’s wife oxi a note for four months, and,did so. The note was not paid, and then followed the complaint. The fact of the giving of the note by the plaintiff’s wife can be proven by the plaintiff’s wife and by Grinnell Barnes, witnesses, who live in Westchester county. The plaintiff was arrested in Westchester county upon the first complaint. After his discharge he was again arrested in Tompkins county. It will be seen that the proof of the loan of the money to the plaintiff’s wife is vital, and the plaintiff’s witnesses to prove that live in Westchester county. It cannot be said that the place of the transaction is entirely in Tompkins county. The complaint was made there and the discharge given there, but plaintiff was a resident of Westchester county, and was taken, under circumstances of great indignity, from that county to Tompkins county. '

The order should be reversed, with costs and disbursements, and the motion denied, with ten dollars costs to abide event.

Pratt and Dykman, JJ., concurred.

Order reversed, with costs and disbursements, and motion denied, with ten dollars costs to abide event.


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    In the Matter of the Application of George Peterson, Respondent, for an Order Compelling A. J. Adams, Appellant, to Pay Over Certain Moneys, etc.

      Attorney and client — adequate compensation for services rendered.

      Where an attorney collected -without suit forty dollars on account of a claim, out of which he received ten dollars for his services, and subsequently obtained a judgment by default before a justice of the peace for the balance of §122.65, and collected the judgment by proceedings supplementary to execution, and there was a dispute between the attorney and his client as to the contract made between them for the attorney’s compensation, an allowance by the Special Term to the attorney of twenty-five dollars additional is an ample compensation for the services rendered.
    Appeal by A. J. Adams, tlie plaintiff’s attorney, from an order-made at the 'Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 1st day of July, 1893, directing him to pay over to the petitioner, George Peterson, the sum of ninety-seven dollars and sixty-five cents.
    - The Special Term .having granted an order to show cause why an order should not be entered directing A. J. Adams to pay to George Peterson the sum of $120 with interest and costs, affidavits were presented upon the return of the order showing that Peterson had placed with Adams, an attorney at law, for collection a claim against one Gaming for $160 ; that Adams collected forty dollars in cash without suit, and turned thirty dollars thereof over to Peterson; that he brought an action for the balance due on such account against Ganung, recovered a judgment by default against him before a justice of the peace, and subsequently collected the balance of the account upon proceedings supplementary to execution.
    Peterson claimed that the agreement between Adams and himself as to the former’s compensation was that Adams was to receive twelve dollars in full for his services. Adams maintained that he was to receive fifty per cent of the sum involved in case it was collected. Peterson demanded that Adams turn over the balance of the money collected by him upon such judgment, which Adams refused to do, offering to pay the amount he claimed to be due Peterson, which Peterson refused to accept.
    The order, made at the Special Term, directed that A. J. Adams pay to George Peterson the sum of ninety-seven dollars and sixty-live cents within ten days after the service of a certified copy thereof, with ten dollars costs of the proceeding. Such order was subsequently modified by striking ont the provision as to costs.

      Smith Lent, for the appellant.

      Frank A. Bennett, for the respondent.
   Barnard, P. J. :

The order appealed from should be affirmed. Peterson held a claim of $160 against one Ganung. The action was put in the hands of the attorney, Adams. Forty dollars was paid without action and Adams received ten dollars for his services. Adams obtained a judgment by default in favor of Peterson before a justice of the peace for the balance of the claim, and Ganung paid the judgment, which was for $122.65. The parties to the transaction differ as to the contract. Adams says he was to have half, and the claimant says the whole services were paid for by the ten dollars. The Special Term allowed twenty-five dollars additional, and this was a very ample compensation for the services done. - Ganung made no defense, and the money was collected by proceedings supplementary to execution upon the judgment.

The order should be affirmed, with costs and disbursements.

Pratt, J., concurred; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.


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    In the Matter of the Probate of the Last Will and Testament of Myra Clark Gaines, Deceased.

      Probate of a will —jurisdiction of the surrogate— when an application to take further evidence oñ the question of residence is properly denied.

    The jurisdiction of a surrogate depends upon the record before him.
    Upon an application for the probate of an alleged -will the question of residence was presented by an objection to the probate, and was apparently abandoned, and proof as to the will was taken, and the will was finally admitted to probate, proof having been given tending to show that the testatrix was a resident of the county where the will was offered for probate.

      Held, that an application made at General Term to take further evidence on the question of residence was properly denied, when made after a considerable lapse of time after the decree admitting the will to probate was entered, especially as no evidence as to the residence of the testatrix was produced by the contestants before the surrogate. (Code Civ. Proc. § 2588.)
    Motion at General Term by the contestants, William W. Christmas and Rhoda B. Kennedy, for an order authorizing further testimony to be taken with a view to showing that Myra Clark Gaines was not a citizen of the State of New York nor a resident of Brooklyn, made pending an appeal from so much of a decision and decree of the surrogate of Kings county, entered in the office of the clerk of the Kings County Surrogate’s Court on the 25th day of June, 1891, as admitted to probate the alleged will of Myra Clark Gaines, dated January 5, 1885, and also from an order made by the surrogate of Kings county overruling the appellants’ plea in bar of res adjudicata.

      John A. Grow, W. W. Goodrich and Belva A. Lockwood, for the appellants.

      Wm. T. Gilbert, for William W. Wilder, respondent.

      Wm. T. Houston, for respondent Wm. W. Christmas and others.
   Barnard, P. J.:

Mrs. Myra C. Gaines died on the 9th of January, 1885, at the city of New Orleans, State of Louisiana. Two papers which purported to be her last will were offered for probate. One was rejected as'not being the will of testatrix, and the other was rejected as informally executed under the laws of the State of Louisiana. The same two papers were presented to the surrogate of Kings county for probate in November, 1889. The will which was rejected as forged was again rejected for the same reason, and the other will was proven and admitted to probate. The proponents of the rejected will appeal from the entire decree. William W. Christmas and Rhoda B. Kennedy appeal from the part of the decree which-admitted the will of January 5, 1885. There was proof given before the Kings county surrogate tending to show that the deceased was a resident of Kings county when she died, and the surrogate so decided. The application to take further evidence should be denied. The question of residence was presented by the objection to the probate and was withdrawn, but the proof of the probate of the will occupied some sixteen days. The jurisdiction of the surrogate depends on the record before him, and while the power exists under section 2586 of the Code, it should not be exercised after such a lapse of time since the decree was entered, and especially in regard to opening the case in this court, where no evidence as to the residence of testatrix was produced by the contestants before the surrogate. On the contrary, there was a strong appearance of an abandonment of the issue of residence. The parties should, therefore, be confined to the record appeal. There were five attesting witnesses to the will, who were each presented to the surrogate, examined and cross-examined.

No case is, therefore, made for an order to take further testimony, and the motion should be denied, with costs.

Dyxman and Pratt, JJ., concurred.

Motion to take further testimony denied, with ten dollars costs.