author: Dwight, P. J.:

text:
    EDWARD MICHAEL and Another, Appellants, v. ANNA M. ELEY, Respondent.

      Principal and agent— a limited authority to sell real estate — a substantial deviation from oral instructions — one who deals with an agent of limited authority is put on inquiry.

    A special employment to effect a sale does not confer upon the agent authority to agree with the purchaser upon any possible, or even reasonable, terms which the agent may prescribe and the purchaser accept.
    Where agents have merely authority to sell, and the purchaser knows of the extent of their authority, and a contract is entered into which deviates materially from oral instructions given by the owner to the agents as to the manner in which payment of the purchase-money should be secured, the owner will not be bound by the contract of the agent.
    A person dealing with an agent having a limited authority is put upon inquiry to determine, whether the terms offered by the agent comply with the instructions, given by the principal to the agent, as to matters and details not covered by the authority to the agent.
    Appeal by tlie plaintiffs, Edward Michael and Arthur W. Hickman, from a judgment, entered in the office of the clerk of Erie county on the 12th day of December, 1890, in favor of the defendant, after a trial by the court at the Erie Circuit.

      A. Moot, for the appellants.

      W. H. Cuddebaoh, for the respondent.
   Dwight, P. J.:

This was a bill in equity to obtain specific performance of an alleged contract of the defendant to convey land.

The contract declared upon was signed on the 21st day of April, 1890, in the name of the defendant, by one Hagan, for himself and one Wiser, under the firm name of Hagan & Wiser, as her agents. The question in the case is of the authority of the agents to sign such contract.

On the 17th day of April, 1890, the defendant, at the request of Hagan & Wiser, consented to employ them as her agents to sell the property in question, and as evidence of such employjnent executed to them a contract in writing, which was drawn by Hagan, and of which the following is a copy:

“Buffalo, N. Y., April 17th, 1890.
“I, the undersigned, do hereby engage and authorize Christ. Hagan and Henry P. Wiser, of Buffalo, N. Y., my lawful authorized agents, for the purpose of selling my farm situated on Main street and Eley road, in the city of Buffalo and the town of Tonawanda and containing seventy-five acres, more or less, and I authorize them to sell the whole, but reserving the new dwelling built on said premises, with sixty feet front on Main street, going back to the back end of the barn, at the price of five hundred ($500) dollars per aere; and I further agree to pay said Hagan & Wiser a commission of two and one-lialf per cent on said purchase-price, and I further agree that any amount above five hundred dollars per acre paid for said premises is to go to said Hagan & Wiser in addition to the regular commission.
(Signed.) “ANNA M. ELEY.”

Tliis, it will be observed, was a mere contract of employment to make a sale, fixing the compensation of the agents,'but, beyond the price per acre, prescribing none of the terms upon which the sale was to be made. Clearly, in the absence of any other authority conferred upon the agents, this would be construed as authority, ^merely, to find a purchaser and refer him to the owner for the terms upon which the sale would be made. A mere special employment to effect a sale does not confer upon the agent the authority to agree with the purchaser upon any possible, or even reasonable, terms which the agent may see fit to prescribe and the purchaser to accept. It is only a general agency evidenced either by a power of attorney or other writing to that effect, or by a course of dealing recognized and ratified by the principal, which, in the absence of express authority' to agree upon the .terms of sale, can confer such authority. In this case the court finds, by its second general finding of fact,, that at the time the contract of employment was made, the only terms of sale fixed by the defendant, to be secured by the agents,, were that $10,000 of the purchase-price was to be paid down, and that the purchaser should give back a mortgage for the balance payable in ten equal annual installments; and that the question of releasing lots upon being paid a portion of the purchase-price was-left to be arranged between the purchaser and the defendant. By special findings of fact, in response to the request of the plaintiff,, the court adds to the terms agreed upon by the defendant, with her agents, on the seventeenth of April, the stipulation that she would give a warranty deed to the purchaser of the land, and, on the twenty-first of April, that the interest on the mortgage should be payable semi-annually, and that the purchasers should have the privilege of paying, at any time, the sum of $1,000, and obtaining therefor a release of one acre of the mortgaged premises.

These, then, were the terms of sale which the agents were authorized to make -in tlieir contract with the purchaser of the defendant’s, land, and if we are correct in the application already made of the elementary doctrine of principal and agent to this case, they could not bind the defendant by any contract which did not comply in all substantial particulars with the terms thus imposed. Unquestionably a third person who deals with an agent, acting under special authority, is put upon inquiry as to the extent of that authority; and the principle is especially applicable in this case because, as the court has found at the request of the plaintiffs, they dealt with the agents, of the defendant in making the contract in suit, with full knowledge-of the written authority above set forth and relying thereupon.. They knew, therefore, that the authority of the agents was special, and that the writing which conferred it specified none of the terms-of sale beyond the price per acre of the land, and, therefore, that if the agents had authority to agree upon any further terms of sale, such authority must have been conferred by special instructions. received by them from tlie defendant, and they were bound to inquire whether such instructions corresponded with the terms of the contract which the agents assumed to make with them.

The finding of the court that the contract so made, and for the specific performance of which this action is brought, did not conform to the terms of sale agreed upon by the defendant with her agents, is fully sustained by comparison of the contract with the terms prescribed by the defendant, as established by the unquestioned findings of the court. This lack of conformity appears in two very important particulars. The court finds, by its general and special findings, that the terms of sale prescribed by the plaintiff provided that for the balance of the purchase-price after the payment down of $10,000, a mortgage should be given by the purchasers, payable in ten equal annual installments, with interest semi-annually. "Whereas the contract executed by her agents with the plaintiffs provides for a mortgage for such balance, payable in ten years from the date thereof, with interest.” That balance would have amounted to about $27,000, the payment of the whole of which, by the terms of the contract, would have been postponed for ten years, and no interest would have been payable till the expiration of that time.

The terms of sale embraced in the contract also differed from those prescribed by the contract in respect to provision for a release of portions of the property on receipt of partial payments on the mortgage. The latter provided definitely for the release of one acre of land on payment of each or any $1,000, while the contract, after stipulating for a mortgage payable in ten years from date, provided that it should contain a clause permitting payments to be made sooner than the time fixed therein, in sums of not less than $1,000, and provided for an equitable release of parts of mortgaged premises commensurate with the amounts paid on said mortgage.”

The important and radical character of these deviations of the contract from the terms of 'sale imposed by the defendant are too obvious to require remark, and in respect, especially, to the first of them, it is difficult to believe that the plaintiffs can have supposed that they were entering into a contract which was either authorized or would be ratified by the owner of the land.

Many other collateral, incidental and, in some cases unimportant, matters are involved in the discussion of this appeal, and the court at Special Term indicates by its findings other grounds for its judgment, but we regard the ground here discussed as amply justifying the dismissal of the plaintiffs’ complaint.

The judgment should be affirmed.

Macomber, J., concurred; Lewis, J., not sitting.

Judgment appealed from affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    CHARLES BERNHARD and JAMES F. CASEY, Appellants, v. RALSA C. RICE, Respondent.

      Costs — motion to set aside a summons for want of jurisdiction — costs of a motion only, not of the action, allowable.

    Where a defendant appears in an action solely to move that a summons served upon him he set aside for want of jurisdiction, and this motion is granted, he is not entitled to the costs of the action, but only to the costs of such motion.
    Appeal by the plaintiffs, Charles Bernhard and James E. Casey, from that part of an order, entered in the office of the clerk of Monroe county on the 20th day of January, .1891, which allowed the defendant costs of the above-entitled action.

      J. A. Bernha/rd, for the appellants.

      M. A. Oeron, for the respondent.
   Dwight, P. J.:

That portion of the order appealed from was clearly unauthorized. The summons was set aside for want of jurisdiction, it being made clearly to appear that the defendant.'who was a resident of Ohio, had come within this State solely for the purpose of attending as a witness upon the trial of an action in the Supreme Court, and was so attending at the time the service in question was made upon him He made no appearance in the action except for the purpose of the motion to set aside the summons, and in the notice of such motion he asked only for the costs of the motion.

Of course, no costs of the action accrued to the defendant. Indeed, upon the very theory of his motion, he was never defendant in the action; no action herein was ever commenced against him; the court never acquired jurisdiction, of him for the purposes of the action. Iiis appearance was for the purpose of the motion only, and it is only costs of the motion which could properly be awarded against the plaintiff. (Ex parte Benson, 6 Cow., 592; People ex rel. Mallard v. The Judges of Madison Co., 7 id., 423.)

The portion of the order appealed from should be reversed, with fen dollars costs and, disbursements of this appeal.

Macomber and Lewis, JJ., concurred.

The portion of the order appealed from reversed, with ten dollars costs and disbursements.


author: Dwight, P. J. :

text:
    BENJAMIN B. CONABLE, Respondent, v. EDGAR K. SMITH, Appellant, Impleaded with CHARLES K. BROWN, Respondent.

      Altered note — an indorser is estopped by the recital of a note, as altered, in a release, under seal, of the maker, executed by such indorser.

    In an action brought by a bona fide holder of a note against the indorsers thereof, a defense was interposed setting up that a material alteration had been made therein after its indorsement, by adding to the note the words “and interest after the first day of March next.” It appeared upon the trial of the action that the maker became bankrupt, and his assignee applied to the indorsers to consent to the release of the maker, and thereupon, ih consideration of a percentage of its face being paid to the holder of the note, the indorsers, by an instrument under seal setting forth the note as altered, consented‘to the release and discharge of the maker from all liability upon the note, and covenanted that such release should not affect their liability thereon. The holder thereupon discharged the maker from all liability to the holder of the note for the amount remaining due.

      Held, that the indorsers were estopped by such action on their part to set up as a '• defense that the note had been altered.

      .Semble, that it was immaterial whether the indorsers understood the contents or legal effect of the release, it not appearing that the holder of the note had done any act to prevent them from so doing.

      Appeal by the defendant Edgar K. Smith from a judgment,, .entered in the office of the cleric of the county of Wyoming on the 15th day of June, 1878, in favor of the plaintiff, after a trial at the Wyoming Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for the amount of certain notes.

      L. W. Thayer, for the appellant.

      Byron Healey, for the plaintiff, respondent.
   Dwight, P. J. :

The action was against the two indorsers, the defendant Smith and one Brown, of a promissory note made by one Garretsee and delivered to the plaintiff before due, for value. Two defenses were set up by the answer — one of a material alteration in the note after its indorsement, the other of usury. The latter defense was abandoned on the trial and the case seems to have been submitted to the jury on two questions of fact: (1.) Was there a material alteration in the body of the note after its indorsement by the defendants ?' (2.) If so, was that alteration ratified, or objection on account thereof' waived by the defendants, or were the defendants estopped from alleging such alteration as a defense to the plaintiff’s action ?

The alleged alteration consisted of the addition of the words “and interest after the first day of "March next ” at the end of the note. The note was dated February 1, 1871, and was drawn and executed by both maker and indorsers about that time, but was not negotiated until about the last of that month, when, as the allegation is, the words in question were added.

There was no motion on the part of the defendants for a nonsuit,, nor for the direction of a verdict, so that the defendants are not in position to question the propriety of the submission of either of the questions of fact to the jury. Those questions were not sej>arately submitted, so that it cannot be certainly affirmed whether the jury found in favor of the plaintiff upon both, or upon which of the questions submitted; but even if it were to be assumed that the finding was in favor of the defendants on the question of the alteration of the note, we think the verdict in favor of the plaintiff was conclusively supported by a finding in his favor on the second question of fact above stated, viz.: Of conduct on the part of the defendants constituting a ratification, a waiver or an estoppel.

The undisputed facts bearing upon this branch of the case are, that within the year after the note was made, Garretsee, the maker, became bankrupt and his assignee took measures to procure a compromise with his creditors at the rate of twenty-five cents on the dollar of his indebtedness. Accordingly, application was made to the defendants, as indorsers of the note in question, to consent to his release from liability on that note, on payment by or for him of the agreed percentage of the amount due thereon, and they thereupon executed an instrument in writing, under seal, which set out a copy of the note in the same terms as those in which the note sued upon is set out in the complaint, including the alleged alteration or addition, whereby they gave their consent, in the most formal and explicit terms, to the release and discharge of the maker of the note, from all liability thereon upon the receipt and indorsement by the holder, of twenty-five per cent of the amount due thereon; and covenanted that such release and discharge should not in any manner affect or modify their liability as ■ indorsers for the remaining seventy-five per cent of such amount due,, etc. And thereupon the plaintiff, as the owner and holder of the note, did accept from the assignee of Garretsee the percentage agreed upon and indorsed the same on the note, and executed a full and formal discharge of the maker from all liability thereupon.. Of course this transaction on the part of the defendants constituted a complete ratification or adoption by them of the contract as represented by the note as it was set out in the instrument executed by them, unless they have, in some way, overeóme the presumption which arose upon their execution of that instrument, that they knew its contents, including the terms in which the note was set out therein ; and that question seems to have been submitted to the-jury. This was quite as much as the defendants were entitled to ask; because, as we suppose, upon the question of estoppel, there was no question at all for the jury. The defendants expressly admitted on the trial that the plaintiff was the owner of the note in good faith ; that is, without any knowledge or reason to believe-that the note did not truly represent the contract both of maker- and indorsers. Such being the case, the defendants, in order to-induce the plaintiff to release the maker of ' the note from liability for seventy-five per cent of the amount for which it stands, unite in a solemn and formal instrument under their hands and seals, by the terms of which they represent the note indorsed by them to have been in the terms of that in his hands, and consent and request him to release the maker from liability thereon to the extent mentioned, and declare that such release, if made, shall not in any manner affect their liability as indorsers thereon. And thereupon, and in reliance thereupon, the plaintiff does release the maker as requested and surrenders the security of the contract of the latter to the extent of seventy-five per cent of the note. It is impossible to entertain the proposition that the defendants can escape the effect of' this instrument as cm estojad, on the ground that they did not know what the instrument contained, unless the plaintiff himself-is in some, way responsible for their ignorance, and of that there is no pretense.

The defendants execute the instrument of their own accord, so far as the plaintiff is concerned, and thereby induce him to relinquish his claim upon the maker of the note in reliance upon their representation that they are liable as its iudorsers, and their promise to pay it notwithstanding his release of the maker. The case presents all the features of an estoppel, and its effect is not dependent upon the question whether the defendants knew what the instrument •contained. It was their business to know; they had every opportunity to know; the plaintiff was not responsible if they did not know; and the effect upon his rights and interests was the same whether they knew or not. ¥e think the plaintiff would have been entitled to the direction of a verdict in his favor if it had been asked for. Certainly, upon the finding of the jury that the defendants were not ignorant of the contents of the instrument signed by them, the verdict was undoubtedly correct.

There was no motion for a new trial, so that w^e are not permitted to inquire as to> the sufficiency of the evidence upon any question submitted to the jury. The judgment appealed from must be affirmed.

Macomber and Lewis, JJ., concurred.

Judgment appealed from affirmed.


text:
    REUBEN COMSTOCK, Appellant, v. JOHN H. HOPKINS, Respondent, Impleaded, etc.
    (7m'Z Damage Act— satisfaction by one of the persons liable is a satisfaction by all — no apportionment of damages between persons thus liable.

    In an action brought under the Oivil Damage Act (chap. 646, Laws oí 1873) to-recover for the loss to the plaintiff resulting from the death of his son, caused, as alleged, by intoxication, produced in part by liquors sold to him by the defendant, it appeared that the plaintiff had brought another action for the same cause against third persons, and had received from such third persons satisfaction of his claim against them.

      Held, that, as all participating in the hurtful act were made equally liable under said act, satisfaction by one was a satisfaction by all, and that the satisfaction of the claim against the third persons, already made, was a bar to this action.
    That as the law legalizes the sale of liquor, although the civil damage act imposes a liability for the hurtful consequences resulting to others therefrom, the seller is not a wrong-doer.
    That the principle which underlies the rule in such cases, that satisfaction by one is a satisfaction by all, is, that there can he no apportionment of damages between persons thus liable.
    Appeal by tlie plaintiff, Reuben Comstock, from a judgment for costs, entered in the office of tlie clerk of tlie county of Wayne on tbe 2Ttli day of December, 1889, after a trial at tlie Wayne Circuit before the court and a jury, at which plaintiff was non-suited, with notice of an intention to bring up for review upon such appeal an interlocutory order, entered in said clerk’s office on the 20th day of November, 1889, nonsuiting the plaintiff.
    The action was brought to recover damages to which plaintiff claimed to be entitled under the civil damage act. ’
    The answer of the defendant John IT. Hopkins set up the following, among other defenses:
    “ 2. And this defendant, further separately answering, alleges, upon information and belief, that after the death of said Comstock, as aforesaid, the plaintiff in this action commenced an action against said E. Bloss Parsons and John Jackson for the same cause of action set forth in the complaint in this action, to wit, the death of said Charles H. Comstock by drowning in Sodus Bay, near Sodus Point, caused by his intoxication by drinking intoxicating liquors sold to him by said Jackson at said restaurant, leased to him, or occupied by him, with the permission of said Parsons, the owner thereof, knowing the same to be used by said Jackson for the purpose of .selling liquors thereat, said intoxication resulting in death, being the same intoxication charged against the defendants in this action, ■and in producing which said intoxication the defendants in this .action, and the defendants in that action, were named as participants ■by said plaintiff.

      “3. That, as this defendant is informed and believes, after the commencement of said action against said Parsons and Jackson said plaintiff settled the same with them, and was by them fully satisfied for his damages claimed therein, by their paying to him a full and valuable consideration for all damages sustained by him by the death of said Charles IT. Comstock, by reason of his death resulting from his intoxication, and said plaintiff accepted such consideration in full discharge and satisfaction for his said claim for damages, thereby discharging all claims on his part for any damages against any and all like joint tort feasors, or persons who by sales of intoxicating liquors may have contributed in whole or in part, or in any •degree, to the intoxication of said Charles IT. Comstock, resulting, as alleged, in causing his death.

      “ 3. And this defendant on the trial of this action will prove said settlement, discharge and satisfaction, as in defense and bar to the maintenance of this action.”
    Similar defenses were inteiqiosed by other defendants. On the trial, when the testimony was closed, a motion for a nonsuit was made upon the grounds that it now appears uncontradictedly that the plaintiff . brought another action against two co-trespassers for the same cause of action to recover damages for the same injury, and that he has settled that action, which is a bar to this one which is now prosecuted by him against Hopkins, which motion was granted.

      O. II. Say, for the appellant.

      J. II. Gamp, for the respondent.
   Dwight, P. J.:

The action was under the civil damage law to recover for loss ■and damage resulting to the plaintiff, from the death of his son, •caused, as alleged, by the intoxication of the latter, produced, in part, by liquor sold to liim by the defendant. The one question of interest in the case is, whether the several persons against whom a cause of action exists, under this act, for one and the same injury — being those persons who, by sales of liquor, have contributed to produce the same intoxication from which the injury resulted — are within the principle of the common-law rule which prescribes that satisfaction as to one joint wrong-doer is satisfaction as to all. The rule is abundantly established as to joint wrong-doers, and rests upon the principle that as there can be no apportionment of responsibility between them, each must be held responsible for all, and hence satisfaction by one is. satisfaction for all. (Bronson v. Throop & Fitzburgh, 1 Hill, 186; Woods v. Pangburn, 75 N. Y., 498.)

The question, above propounded, whether this rule applies to the case of persons thus equally, and no doubt jointly, liable under the civil damage law, is, so far as we know, a new question in this State. In Massachusetts and Iowa, under similar statutes, it has been held that the common-law rule does so apply. (Aldrich v. Parnell, 147 Mass., 409 ; Kerney v. Fitzgerald, 43 Iowa, 580.) The reasoning of these cases commends itself to our judgment, although we are of the opinion that the conclusion reached does not depend upon the principle that the persons so jointly liable for the injury complained of are joint wrong-doers. It is difficult to see how a man, who does only that which he is expressly licensed to do under •one statute of the State, can be treated, for that act, as a wrongdoer, by or under another statute of the State. Certainly, what he has done is not in violation of any law of the State, civil or criminal; and we have had occasion to hold that the liability which he has thereby incurred is not in the nature of a penalty. (Hall v. Germain, 37 N. Y. St. Rep., 320, 321.) The two statutes referred to are in jpari materia — the object of both is to restrain the traffic in intoxicating liquor, and they may be read together. "When so read it will be seen that the civil damage law imposes a condition upon which a license to sell liquor is granted under the excise law, viz., the condition of liability in damages for injuries to others resulting from such sale. It is true that the xmlieensed dealer is a wrongdoer, both civilly and criminally — liable both to penalty and to fine and imprisonment; but the civil damage law applies with equal force to the licensed as to the unlicensed dealer, and, therefore, it cannnot well be said that the liability imposed by it is the liability of wrong-doers.

But it is not necessary that the persons liable to such an action as this, should be wrong-doers in order to give application to the rule that satisfaction by one is satisfaction as to all. On the contrary, we think the rule has application to both classes of cases upon a principle which is common to both, viz.: That there can be no apportionment of damages between the persons liable. So it is with joint wrong-doers from the nature of the case, and so it is with persons liable under the statute in question from the very terms of the statute, which impose an undivided liability upon any person or persons whose sale or giving away of liquor has caused the intoxication, in whole or in part, from which the injury complained of has resulted.

No doubt in this ease, as in that of joint wrong-doers, the person injured would have had his action against all the persons liable, either jointly or separately; but no cause of action against any would have survived satisfaction by either of the claim against him.

An examination of the evidence satisfies us that there was no question for the jury as to the fact of a settlement by the plaintiff with the defendant in another action, previously brought by him, under the same statute for the same cause of action, viz., the loss sustained by him in the death of his son. For the reasons stated we are of the opinion that the nonsuit was properly granted, and that the judgment must be affirmed.

Macomber and Lewis, JJ., concurred.

Judgment appealed from affirmed.


text:
    In the Matter of the Application of JANE LE BRETON BRUGH, an Alleged Lunatic.

      Imane persons —tests of recovery to competency to manage prop&t'ty— Oode of Oivil Procedure, secs. 2320, 2343.
    The following tests of recovery from a state of insanity are approved:

      First. A natural and healthy state of the emotions.

      Second. Absence of insane ideas and delusions.

      Third. The possession of sufficient powers of attentive memory and judgment to enable the individual to take his part as a member of society.

      Fourth Practical and reasonable conduct..
    The conditions which render one incompetent to manage his affairs, under section 2320 of the Oode of Oivil Procedure, do not embrace mere weakness of mind, nor lack of business capacity or experience.
    The provisions of section 2343, relating to the discharge of the committee of the property of a lunatic, when the latter becomes “ competent to manage * * * his affairs,” do not require a competency proportioned to the extent of the estate of the lunatic, hut only mental health and a fitness to manage the common and-ordinary affairs of life.
    Appeal by Mary Le Breton Mitchell, the committee of the above-named Jane Le Breton Brugh, from an order, entered in the office of the clerk of Erie county on the 22d day of September, 1890, confirming the report of a referee, which found, among other things, that the said Jaiie Le Breton Brugh had. become competent to manage herself and her affairs, and which order directed the discharge of the said committee upon her accounting. to the said Jane Le Breton Brugh, and restoring to the latter all moneys and property in the hands of said committee.

      George F. Dm forth and William G. Ooohe, for the committee, appellant.

      Nelson Morey, for the petitioner, respondent.
   Dwight, P. J.:

A very careful reading of the voluminous proofs taken and returned by the referee in this proceeding has satisfied us that his conclusion of fact, to the effect that the petitioner has recovered from the insanity with which she was afflicted at the time of the issuance of the commission, is abundantly established, and that — in the language of - his opinion — “ her incompeteney resulting from lunacy has ceased, and that she is now competent by reason of her restoration to a healthy mental condition to manage herself and her affairs.” We do not deem it necessary to restate the grounds of this conclusion. They are clearly and fully stated in the opinion of the referee, and to that opinion we refer with entire approval for a history of the case and for a review and classification of the evidence upon which his conclusions are founded. We are especially satisfied with his final application to the whole case of the four tests of recovery from a state of insanity which are prescribed by one of the highest medical authorities on this subject, namely, Dr. John Charles Bucknill of London, lately the lord chancellor’s visitor of lunatics. The tests as quoted by the referee are the following:

1. A natural and healthy state of the emotions.

2. Absence of insane ideas and delusions.

3. The possession of sufficient powers of attentive memory and judgment to enable the individual to take his part as a member of society.

4. Practical and reasonable conduct.

These tests, it seems to us, must commend themselves to every thoughtful mind, whether scientific or unscientific, as admirably comprehensive, discriminating and conclusive; and to each and all of them the case of Mrs. Brugh, as disclosed to us by the evidence as a whole and in its parts, responds with complete success. It will be observed that these tests of restoration from a diseased to a healthy mental condition do not include the manifestation of strength of mind, of high reasoning powers, of unerring judgment; nor do they set up any standard of business capacity or of ability in the conduct of affairs. These last mentioned qualifications necessarily include the elements of education and experience which, manifestly, have no place among the symptoms of mental health or disease.

If the qualities of mind enumerated were among the necessary dnddoia of soundness of mind, it must be conceded that the case of the petitioner would not endure the test. Mrs. Brugh is undoubtedly, except in her faculty of memory — which in respect to things hoth recent and remote is phenomenal — a woman of somewhat feeble mind. She has probably been so from childhood, but she was very far removed from a condition of idiocy; she was never an imbecile, and her insanity was of a special type, and its attacks tlie result of special physical conditions — namely, of pregnancy and childbirth — which in her case ceased to occur more than thirty years ago. But, as the evidence tepds to show, she is not and probably was never a woman of strong mind, and she has had no business education and but little experience of business. When a school girl of eighteen she was permitted to become the wife of a youth of twenty-one, who was just completing his medical studies, and who ■developed into an incapable, improvident, unsettled man, who wasted her little fortune and acquired none of his own. They lived here and there, and from hand to mouth, for a period of thirteen or fourteen years, when, at about the time of the birth of her third child, she was visited by a second attack of insanity, and being thrown upon the care of her relatives was committed by them to the insane asylum, at Blackwell’s Island, as a pauper lunatic. There she remained for another period of thirteen years. In the meantime, and about three years before she was discharged from the asylum, she became, by reason of the falling in of a .precedent estate, entitled to an undivided share of a valuable real property in the city of New York. It was then that her relatives, who seem at all times to have manifested more interest in her property than in her personal rights or even in her comfort and happiness, instituted proceedings against her as a lunatic, and procured an adjudication of her insanity, and the issuance of the commission granting-custody of her person and estate, which it is the object of this proceeding wholly to- supersede. It was in a manner superseded in 1882, in respect only to the custody of her person, when in a proceeding like the present instituted by herself, her contention was compromised by the counsel who then represented her, and a stipulation was entered into with the committee, which recited that the petitioner is sufficiently recovered to be competent to exercise her choice as to her place of residence and with whom she shall reside, and is not now in need of any personal supervision as to her conduct, but is not of sufficient competency to manage her estate or decide as to the expenditure of her income; ” and the stipulation, which became the basis of an order to the same effect, provided that the petitioner should thereafter .be allowed to select her place of residence and the person with whom she should reside; that the committee should pay a reasonable sum for lier support and maintenance, and that slie should “be allowed the sum'of one dollar per week for her personal expenses.” Since that time she has lived with friends, not of her family, with whom she had found for herself a home before the privilege was accorded to her by the court; by whom she has been treated with kindness and respect; where she-has mingled freely with her neighbors in social and religious gatherings, and where she has constantly maintained the character of a lady of gentle manners, of warm affections, of quiet and sensible deportment and of correct views of life.

The life thus briefly depicted gave small opportunity for acquiring experience in business or cultivating ability in the management of affairs. Indeed, were Mrs. Brugh shown to have possessed the full average measure of native strength and acuteness of mind, she could not be expected to leap at once from the condition of dependence and restraint in which her whole life had been passed, into a condition of competency to manage, without assistance or advice, an estate of the estimated value of forty or fifty thousand dollars, requiring the choice of investments and a knowledge of the value of securities. When, therefore, counsel for the committee, on cross-examination of the experts who had testified that Mrs. Brugh was restored to soundness of mind, propounded to them questions based in part upon the foregoing history, as follows : “ Do you think it would be safe for that woman now to take charge of forty or fifty-thousand dollars worth of property, without any assistance or control or direction ? ” and Is she of the same business capacity and responsibility, intellectually, as an ordinary woman who has had business experience, and has never been confined in a lunatic asylum ? ” and “ Do you think she has manifested business capacity enough since she has lived in Hamburgh (her present residence), to make it safe to turn right over to her forty or fifty thousand dollars worth of property to do what she likes with?” They were asking questions which answered themselves, but were not very pertinent to the inquiry in hand. These questions ■ proposed a test of the right of one to the possession and control of his own property, which has no warrant, either at common law or in our statute relating to the care or custody of the property of idiots, lunatics or habitual drunkards. The statute — which is declaratory of the rule of the common law — in terms confines the jurisdiction of the court¡ in this respect, to the case of a person incompetent to manage his affairs by reason of lunacy, idiocy or habitual drunkenness (Code of Civ. Pro., § 2320); and it defines the term lunacy to embrace every description of unsoundness of mind except idiocy (Id., § 3343, sub. 15); but it does not embrace mere weakness of mind nor lack of business capacity, still less want of business experience. Unsoundness' of mind is etymologically synonymous with insanity, and insanity is “ a chronic disease of the brain inducing chronic, disordered mental symptoms.” (Ency. Brit., tit., Insanity.)

So, too, the statute provides for the discharge of the committee of the property of a lunatic whenever the person subjected to the commission becomes competent to manage "x' * * his affairs.” (Id., § 2343.) But this language does not intend competency to manage a great estate if the person happens to possess one. This would make the right of such person to be restored to the management of his affairs to depend upon the amount of his property, requiring as a condition of such restoration a degree of competency in each case proportioned to the extent and value of his estate, and, in the case of some colossal fortunes, raising the requirement to a standard of business capacity and genius for affairs to which few men and fewer women have ever attained There is no authority ■for such a construction of the statute, and a statement of the proposition in its logical result reduces it to an absurdity. The test of a man’s right to be restored to the possession and control of his property is not his competency to manage his particular estate, be it great or small, but his restoration to mental health and his consequent fitness for the management of the common and ordinary affairs of life. “ Competence to common purposes ” was the terse and comprehensive phrase employed by Lord Eldon to describe the degree of competency sufficient to_ warrant superseding a commission. (Ex parte Holyland, 11 Vesey, 10.) And in that case the lord •chancellor said it was not necessary that the mind should be restored even to its original state, and he cited competency to make a will of personal estate as an illustration of that “ competence to common purposes,” which was sufficient. In the case of In re Cranmer (12 Vesey, 445), the Lord Chancellor (EesKine) refused to confirm an inquisition because the finding was not “ of unsound mind,” or “ non compos mentis” or in other equivalent words, but only that the party was so far debilitated in his mind as not to be equal to the general management of his affairs. In that case Lord EesKINE adopted the phrase of Lord EldoN as descriptive of the competency which was sufficient to save a man’s estate from a commission; and he made his application of it very plain by supposing the case 'of a farmer whose mind was so far debilitated that he could not manage his farm, and yet was “ competent to common purposes,” in which case a commission would not issue. The case, in our own State, of In re Barker (2 Johns. Ch., 232), may be regarded as extending-the jurisdiction of the court, under the common law rule, beyond the classes of technical idiots and lunatics, to cases of imbecility arising from old age, properly denominated senile dementia, or of loss of memory and understanding by sickness, grief or other accident; but it proposes no classification which would include the case of the petitioner here, who has concededly recovered from a visitation of insanity and has been restored to soundness of mind, though not now, and probably never, possessed of that strength of mind and capacity for business which would fit her for the unaided management of a considerable estate.

But why should the hypothesis be indulged that Mrs. Brugh will be compelled or will attempt to manage her estate without advice or assistance? Yery few women, even of the highest intelligence, are accustomed to do so. Mrs. Brugh herself is properly conscious, of her need of such assistance, and she is as much entitled to it, so-far as we know, as any other woman. When the occasion arises she will be at liberty to choose her own advisers and assistants, and if by reason of weakness and inexperience she should fall into the hands of evil and designing men, equity will interfere, by a process-other than a commission of lunacy, to relieve against fraud and undue-influence. Her views and wishes in this respect are disclosed by her statements to the witness Hr. Clark when he examined her with a view to testifying as an expert in this proceeding. The referee-very properly calls special attention to the testimony of that witness. It is very intelligent and pertinent testimony. It embodies the: answers of Mrs. Brugh to many questions put by him with a view, among other things, to elicit her ideas of the responsibility attached to the possession of property, and the manner in which she would care for and employ lier own if the responsibility were laid upon her ; all of which answers were pertinent, intelligent and reasonable-Without fairing the time to quote from the testimony of Dr. Clark, we must be content to say that it is very convincing of the restoration of Mrs. Brugh to soundness of mind, and to a degree of competency fully up to the standard set by the authorities to which reference has been made; and we find no testimony in the case which substantially detracts from the effect thus produced.

We think the conclusions of the referee in this case are well supported, and agree with him that a case is made for superseding the commission herein in respect to the property as well as to the person of the petitioner.

The order of the Special .Term should be in all respects affirmed.

MaooMber and Lewis, JJ., concurred.

Order appealed from affirmed, with costs of this appeal to the respondent to be paid by the appellant personally.


text:
    GEORGE E. MATTHEWS and CHARLES E. AUSTIN, Respondents, v. THE ASSOCIATED PRESS OF THE STATE OF NEW YORK and Others, Appellants. GEORGE BLEISTEIN, as President of THE COURIER COMPANY, Respondent, v. THE SAME, Appellants.

      Associated Press — its charter and by-laws constitute a mlid contract — a by-la/w forbidding its members to receive news from a rival association— mt in restraint of trade — not detrimental to the public interest, nor to liberty of speech cmd of the press.

    The Associated Press of the State of New York was organized under chapter 754, Laws of 1867, for the mutual protection of its members and for the purpose of procuring and supplying them with telegraphic news,
    One of its by-laws forbade, under penalty of suspension, a member to receive or publish the regular news dispatches of any other news association covering a like territory and organized for a like purpose Certain members of the Associated Press violated this by-law, and were notified that a charge to that effect had been made against them by said association.
    In an action brought by such members to restrain proceedings, for the enforcement, of said by-law, initiated against them,

      Held, that the charter and by-laws constituted the contract between the members, and between them and the association.
    That such a contract to collect news through agents, for the exclusive benefit of the associates, and for their common benefit, was supported by a sufficient consideration.
    That the contract embodied in the by-law, by which the associates bound themselves not to publish news furnished by a rival association, did not exceed the bounds of proper self protection, and was not in restraint of trade.
    That it was not necessarily detrimental to the public interests, nor did it offend against the constitutional provisions securing liberty of speech and of the press.
    Appeals in each of the above-entitled actions by the defendants, the Associated, Press of the State of New York and E. Prentiss Bailey and others, composing the executive committee of the Associated Press of the State of New York, from orders entered in said actions in the clerk’s office of Erie county on the 4th day of March, 1891, continuing a preliminary injunction theretofore granted in each of said actions.

      B. E. Pcvyne, for the appellants.

      O. B. Wheeler, for the respondents in the first above-entitled action.

      A. Wilcox, for the respondent in the second above-entitled action.
   Dwight, P. J.:

The plaintiffs in No. 1 are the publishers and projxrietors of the “Buffalo Express,” a daily newspaper published in the city of Buffalo. The plaintiff in No. 2 is president of the Courier Company, a joint-stock association which is the publisher and proprietor of the “ Buffalo Courier,” also a daily newspaper published in the sainé city. The plaintiffs in both cases are members of the defendant, the Associated Press of the State of New York, a corporation organized under a special act of the legislature of this State, being chapter 754 of the Laws of 1867, among the objects of which, as declared by the act, are “ the mutual protection of members of the press, and “procuring and supplying its members with telegraphic news.” The other defendants are the persons composing the executive committee of the defendant association.

The action in each case is to restrain the defendants from proceeding to enforce against the plaintiffs one of the by-laws of the defendant association, which is in the following terms:

“ 25. No member of this association shall receive or publish the regular news dispatches of any other news association, covering a like territory, and organized for a like purpose with this association. Any member violating this by-law shall be suspended by the executive committee from all the rights and privileges of the association, as provided in section 24, subject, however, to reinstatement by a two-tliirds vote of the association, upon written agreement to conform to all the by-laws and contracts of the association.”

By-law 24, referred to in the above, prescribes the mode of its enforcement, viz., by suspension by the executive committee “ after an examination of the offense charged,” on notice to the offending member; the decision of the committee being, however, subject to the approval or disapproval of the association at its next meeting.

On the 23d of April, 1890, the plaintiffs in each case were served by the defendants with a notice, of which the following is a copy :

“You will please take notice that you are hereby charged by the Associated Press of the State of New York with the violation of the by-laws of said association, and particularly of section 25 thereof, in both receiving and publishing the regular news dispatches of the United Press Association, which is another news association covering a like territory, and organized for a like purpose with this association. It is charged by this. association that you are violating, and have, since the first day of January, 1890, violated said by-laws in the manner aforesaid.”

And thereupon these actions were commenced to restrain the proceedings thus initiated and foreshadowed, on thé part of the defendant, and a preliminary injunction was obtained in each case, which was continued by the order from which this appeal is taken.

The two cases, as presented by the moving and opposing papers, are in all respects the same, except that the plaintiff in No. 2, representing the Buffalo Courier, voted in favor of the by-laws 24 and 25, the enforcement of which is sought to be restrained ; but it is not seriously contended by either party that the presence of this circumstance in the one case, or its absence in the other, creates any real distinction between the cases. The plaintiffs in the two cases are equally members of the defendant association, and are equally amenable to its by-laws, whether adopted with or without their individual concurrence. We sliall, therefore, in our discussion of the two cases, treat them as if they were one.

There is no controversy about the facts of this case. The plaintiffs had, as charged, both received and published the regular news dispatches of the United Press Association, and had thus become liable to suspension from the rights and privileges of members of the defendant association, unless it appears either that the act complained of was not within the terms of the by-law which prescribes that penalty, or that the by-law itself was inoperative because contrary to law.

That the act was within the prohibition of the by-law we think sufficiently apj>ears. The United Press Association covers the same; territory as that covered by the defendant, viz., the State of New York; and the fact that it also covers other territory does not, we-think, take it out of the purview and intention of the by-law in question. It is, as to the State of New York, and in respect to news-collected within this State, a competitor of the defendant, and is thus within the plain intent and purpose of the by-law, which was to prevent the encouragement of such competition by members of the defendant. The question whether such purpose is an unlawful one and one against which a court of equity will interfere, is a somewhat more serious question, and, as we think, the only substantial question in this case.

The business of collecting the news of the day and furnishing-reports of it to the press for a compensation has become a very well known and important industry. It can scarcely be called a branch of trade. There is no right of property in the news itself. Tbat is-neither bought or sold. Any man who hears it may make such use of it as he can for his own advantage, or may communicate it to-others. So he may make a business of collecting news and furnishing reports of it to the newspapers, or to such of them as will compensate him for his trouble. The work is commonly done in the locality of each newspaper by its own reporters employed and paid for that jDurpose. In remote localities the same system might be, and no doubt was formerly much employed, viz., of a special reporter- or correspondent engaged to supply to the particular newspaper, reports by post or by telegraph, of occurrences in his locality. But of late publishers have availed themselves of the obvious advantages-of combination for the procurement of news, and so have organized themselves by voluntary association or by incorporation, and by this means have shared at once the news collected and the expense of its collection. But whichever the system made use of, whether of separate reporters and correspondents or of reporters and correspondents-employed by syndicate or corporation, it is plain that the employment is that of agents, to do the work of collecting news in their several localities for one or more newspapers. In this case the-agents are employed by the defendant, “ the Associated Press of the State of New York,” acting for all the publishers who are comprised in its membership. As to all these, the charter and by-laws-of the corporation constitute the contract between themselves and between them and the association. Among the provisions of that-contract is one to the effect that none of the members shall contract, with any other news association to employ for them agents for the-procurement of news within the same territory as that in whick agents of the defendant association are employed. This contract, between the members of the association is mutual and is for the-common benefit, and so is supported by a sufficient consideration. It is for the common benefit because the efficiency of the association, depends upon the number and activity of its agents, and these, largely,, upon the extent of its revenues from which salaries are paid, and. that, in turn, upon the number of its patrons, so that the building-up of competitors which must draw off from its patronage, will necessarily detract from the extent and value of its work.

The contract, therefore, of the associates with each other, and off these with the association, which is embodied in the by-law in question, seems to us not to exceed the proper bounds of self protection,,, and not to be unreasonable, nor obnoxious to any principle which has been invoked for its condemnation. Even if the news of the-day is to be regarded as a commodity which the plaintiffs are engaged in selling, and which they purchase of the defendant association,., the contract is no more in restraint of trade than the thousand contracts by which dealers in certain classes of goods agree to sell no-other than the products of certain mills or manufactories, in consideration of the reciprocal agreement of the manufacturer not to-furnish his goods to other dealers of the same vicinity. That such contracts in restraint of trade are not invalid if they impose no-restriction upon one party which is not beneficial to the other, and are induced by considerations which make it reasonable for the parties to enter into-it, is well established by repeated adjudications of our own court of last resort. (Hodge v. Sloan, 107 N. Y., 244; The Diamond Match Co.v. Roeber, 106 id., 473; Leslie v. Lorillard, 110 id., 519.) N or is the contract necessarily detrimental to the public interest, in the respect that whatever tends to increase the efficiency of the defendant association as a collector of news is, so far, in tlio interest of the public as readers- of the newspapers.

The objection that the contract is in violation of that provision of the Constitution of the State which is intended to secure liberty of speech and of the press, seems rather fanciful than real. The first clause of that valued provision declares that “ every citizen may ireely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right,” and the second forbids the passage of laws to restrain or abridge the liberty of speech or of the press.” There is nothing in these provisions which forbids the publisher of a newspaper to contract in respect to the source from which he shall obtain his news for publication.

There are no facts in the case which seem to us to present the ■question of the violation of vested rights in third persons. Whenever a subscriber to either of the journals published by the plaintiffs, ■or any person advertising therein, shall present to the court a case of the violation by the plaintiffs of a contract with him to enhance the value of such paper, either as a repository of news or as an advertising medium, by publishing the matter furnished by the United Press Association, it will become the duty of the court to inquire as to the measure of damages, or other relief to be awarded to the plaintiff in such an action.

In this case it is conceded that the plaintiffs have intentionally violated a by-law of the defendant association of which they are members, and we are of opinion that no case has been made by them calling for the interference of a court of equity to prevent the enforcement of that by-law in the manner prescribed.

The order continuing the injunction should be reversed and the motion denied, with costs.

Maoombbb and Lewis, JJ., concurred.

Order appealed from in each case reversed, with ten dollars costs and disbursements of tbe appeal, and tbe motion in eacb case denied, with ten dollars costs.


text:
    MARY KOCH, an Infant, by JULIUS SCHMITT, her Guardian Ad Litem, Appellant, v. JACOB LE FROIS, Respondent.

      Guardian and ward — action by the latter for a specific fraud — a prior accounting by the guardian is not necessasp.

    The complaint in an action "by an infant alleged that her general guardian had been duly appointed her special guardian in proceedings to sell her interest iu certain real estate; that he had connived with a surety, upon his bond as general guardian, to prevent afair sale of said real estate; that he had willfully defrauded the infant by a sale thereof to said surety at a price which the general guardian, knew to be unfair; that the surety had subsequently, resold the premises at a large advance, and that this profit had been corruptly shared between the surety and the general guardian.

      Held, on a motion for a nonsuit, that the complaint stated facts sufficient to constitute a cause of action.
    That the rule in chancery (Laws of 1815, chap. 106, § 2), substantially re-enacted in sections 2351 and 2353 of the Code of Civil Procedure, holding that an action could not be maintained upon a guardian’s bond against his sureties until after an accounting in equity by the guardian, had no application to a case where an infant sued a guardian personally for a positive and specific fraud.
    Appeal by tbe plaintiff, Mary Koch, an infant, by Julius Scbmitt, her guardian ad litem, from a judgment or order, entered in the office of tbe clerk of tbe county of Monroe on the Jth day of March, 1891, dismissing her complaint after a trial by tbe court at the Monroe Circuit, with notice of an intention to bring up for review upon such appeal a judgment, entered in said clerk’s office, dated the 6th day of March, 1891, dismissing said complaint, with costs.

      G. D. Gillette, for the appellant.

      H. B. IldllocTc, for the respondent.
   Dwight, P. J.:

The motion of the defendant at the circuit was in the nature of an oral demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. For the purposes of the motion, therefore, all the allegations of the complaint stand admitted. Those allegations, as summarized in the points of ■the resjiondent on this appeal, are as follows :

The complaint alleges that the plaintiff is an infant, and that, in October, 1890, one Julius Schmitt was, bj order of this court, appointed her guardian ad litem ; that Michael Koch, plaintiff’s father, died intestate in November, 1884, seized of the premises ■described in the complaint, which consists of about nineteen and • one-half acres of land, on Hudson and Norton streets, in the town ■of Irondequoit, Monroe county, leaving him surviving his widow .and Frank Koch, Mary Koch (plaintiff), and Michael Koch, his • children and lieirs-at-law; that in November, 1889, the defendant was appointed general guardian of plaintiff by the surrogate of Monroe county, and duly qualified and entered upon the discharge ■ of his duties as such guardian; that in November, 1889, the defend..ant petitioned the Monroe County Court for leave to sell the interest of plaintiff and others in the real estate hereinbefore mentioned, and ■to have himself appointed special guardian with respect to said proceedings; that on the 16th day of November, 1889, the defendant was appointed such special guardian by order of the said Monroe ■County Court, and qualified and entered upon the discharge of his -duties as such; that he violated his duty as such special guardian by failing to sell plaintiff’s interest in the real estate upon the best terms obtainable, and willfully and fraudulently connived and conspired with one Frank Koch, a surety on his bond as general guardian, ■to prevent a fair sale of the premises to the highest bidder; that he willfully and knowingly defrauded the plaintiff and her co-tenants by ■selling the premises to Frank Koch for a less price than responsible and bonco fide purchasers had given him notice that they were willing and ready to pay therefor; that he falsely reported to the court, on November 18, 1889, that his agreement, made pursuant to an order of said court to sell the premises to Frank Koch for $5,325, said Koch to take the premises subject to two mortgages amounting to $5,J00, making altogether $11,025, was for the best terms for which he could sell the property, and that, at the time of the making of such ■report, he well knew that he could sell said premises to responsible purchasers for over sixteen thousand dollars; that the defendant, ■pursuant 'to the agreement of sale, did sell and convey to Frank Koch the interest of the plaintiff and others in the real property for $5,325, subject to $5,700 in mortgages thereon, and that soon after purchasing said property Frank Koch sold the same for about seventeen thousand dollars, and thereupon the defendant fraudulently and corruptly shared with said Frank Koch the profits of the purchase and sale, amounting to $5,975, and that, by such fraudulent conduct in said proceeding, the defendant violated his duty as such special guardian, and willfully defrauded plaintiff to her damage in the sum •of $1,600, for which amount the plaintiff demands judgment.

This complaint seems to have been dismissed under the supposed doctrine of Stilwell v. Mills (19 Johns., 304); Salisbury v. Van Hoesen (3 Hill, 77); Hood v. Hood (85 N. Y., 561); Perkins v. Stimmel (114 id., 359), and other cases, all of which are cited and relied upon by counsel for the respondent here. We do not consider these cases as authority for the disposition made of this case. All of them are cases of .actions on the bond of the trustee, guardian or personal representative, and against the sureties on such bond. That is the action which, in all of the cases cited, it is held cannot be maintained until after an accounting in equity by the trustee. The case of Stilwell v. Mills (supra) is the leading case, followed throughout the whole list, and the gist of that decision, which is substantially re-echoed in all the cases, is contained in the following language of the court: “ It would be extremely unfit to submit the accounts (of the guardian), to the decision of a jury or. referees. The true effept of the condition of the bond is to render an account in the Court of Chancery, and as this has not been required the condition of the bond is not violated.” The case in 3 Hill (supra) was an action of debt on the bond, and the court, following the case in Johnson, cites, the statute of 1815 (chap. 106, § 2), providing that the bond, if forfeited, can be prosecuted only “ by the direction of the chancellor,” which direction will be given only after proceedings for an accounting before him. The case in 85 New York holds that -the default of the executor must be established by proper proceedings .against him before the sureties can be prosecuted upon their bond, and so throughout the list of cases cited.

But neither of those cases partakes of the character of the case at' bar. Here is not an action against either principal or sureties on ■their bond, nor is there any question of an accounting involved in this case. Here is an action for damage by the fraud and conspiracy of the defendant, who, as it is alleged, taking advantage of his position as special guardian of this infant, has conspired with, another to defraud her of one-half the value of her inheritance by a sale of the land for one-half its value, as known to him; and who, after the consummation of the fraud, has shared with his co-conspirator in the profits of the fraudulent enterprise.

Surely the infant may have his remedy by action for such a wrong without resort to the bond of the special guardian, and it is only to an action on the bond that the doctrine of the cases cited applies.

The provisions of the Code of Civil Procedure (§§2351 and 2353), are equivalent to those of the act of 1815, referred to in the case in 3 Hill (supra), and both are statutory declarations of the principle of the common law stated in the case in 19 Johnson, viz.: That the bond is not forfeited until a failure to account or pay over after an accounting by the trustee. We do not regard that principle as involved in this case, and know of no reason why the infant may not maintain her action against the guardian, personally, for such positive and specific fraud as is charged in the complaint in this action.

We think that the motion for a nonsuit was improperly granted, and that the judgment entered thereon must be reversed.

Macomber and Lewis, JJ., concurred.

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


author: Macomber, J :

text:
    HANNAH L. HAZARD and MARVIN B. GATES, Appellants, v. CORDELIA BIRDSALL and Others, Respondents.

      Bill of particulars, in a partition suit involving the validity of a devise — the testator's ineompetency and undue influence alleged as the grounds thereof.

    The power of the court, under section 581 of the Code of Civil Procedure, to order a hill of particulars to be served in an action, other than one upon an accounting, will be exercised with a regard to the nature of the action, and the character of the inquiry to be instituted upon its trial.
    Where an action has been begun for the partition of real property, under section 1531 of the Code of Civil Procedure, the terms of which permit the plaintiffs to allege and establish that an apparent devise to third persons is void, and the plaintiffs allege that such a devise is void because of the testator’s incompetency and of undue influence exerted upon him, a motion made by the defendant for a bill of particulars requiring the plaintiffs to state in what' particular the execution of said will was defective, and also any particular or special act or false representation relied on as establishing undue influence, will be denied.
    Appeal by tlie plaintiffs, Hannali L. Hazard and Marvin B. Gates, from an order made at Special Term, and entered in tlie clerk’s office of Monroe county on the 4tli day of April, 1891, wliicli required tlie plaintiffs to serve a bill of particulars herein, setting forth, first, the particular or particulars in which the execution of the will of Benjamin Birdsall was alleged to be defective; second, any particular or special act or false representation, if there be any such act or false representation, which is relied on as establishing undue influence.
    The will in question bore date 30th November, 1889, and was admitted to probate by the surrogate of Monroe county, January 2,1891.

      G. J. Browning, for the appellants.

      A. B. Sutherland, for the respondents.
   Macomber, J :

This action is for the partition of certain lands described in the complaint, of which one Benjamin Birdsall died seized on the 22d day of April, 1890.

The plaintiffs are the daughter and grandson of the decedent, and the defendant Cordelia Birdsall is his widow. The claim made by the plaintiffs is, that they are entitled to a portion of the real estate as tenants in common with other parties named, although the deceased left a will by which the land was apparently devised to the respondent, Cordelia Birdsall. The action, in form, is under section 15 3J of the Code of Civil Procedure; which permits persons claiming, as joint tenants or tenants in common, by reason of being lieirs-at-law of the person who died in possession of the real property, to maintain an action for the partition thereof, notwithstanding an apparent devise thereof to another by the decedent. By the terms of this section, it is incumbent upon the plaintiffs tO' allege and establish that such apparent devise is void.

The allegations of the plaintiffs are, so far as is material to this-appeal, “that although the said paper purports to be the last will- and testament of said Benjamin Birdsall, and by its terms devises or bequeaths the said real estate or the proceeds thereof to the parties above mentioned, the said apparent devise and bequest, together with the power of sale contained in the said alleged will, is void, and said alleged will is void as to said property, for the reason that the said paper and instrument was not duly executed by the said deceased as his last will and testament, and the alleged execution, thereof was not his free and voluntary act; and that when the said paper purports to have been executed the said deceased was not of sound mind, memory and understanding, and that he was incompetent by reason of mental weakness, bodily infirmities and unsoundness of mind to make a will, and that the said Benjamin Birdsall was procured to put his signature to the said paper and to execute the same by the defendant Cordelia Birdsall, through improper and undue influences brought to bear upon him by the said Cordelia Birdsall, and the same was not the free and voluntary act of said deceased.”

The order made upon the defendant’s motion required the plaintiffs to furnish to the defendant’s attorneys, within twenty days, a bill of particulars setting forth:

First. The particular or particulars in which the execution of the will is alleged to Ire defective.
“ Second. Any particular or special act or false representation, if there be any such act or false representation, which is relied on as establishing undue influence.”

No claim is made but that the complaint is precise and accurate enough to enable the defendants to answer its allegations intelligently; for, simultaneously with the service of the affidavits and notice of motion, an answer putting in issue the principal allegations of the complaint was served. While it is true that, under section 531 of the Code of Civil Procedure, the court is not in terms restricted in granting motions for bills of particulars to cases where the motion is'made before answer, yet the fact that a defendant is able and willing to join issue upon the allegations of the complaint is a circumstance in actions, other than those upon an account, to be considered in determining the question whether or not the particular information desired is, in reality, needed by the defendant. Undoubtedly, the office of a bill of particulars is to amplify the pleading so as to specify clearly the claim or defense set up and to limit the generality of a pleading, thus preventing surprises at the brial. But it is not in all cases that a bill of particulars can be of .special service to parties so long as the pleading itself is definite and certain, and one to which the opposite party has voluntarily answered before notice of motion. In the case as presented on this appeal, it seems as if the' demand actually made by the notice of motion and by the order was, that the plaintiffs disclose to the defendants the 'evidence upon which they intended to rely' at the trial. This certainly is not the office of a bill of particulars. Though the language of the Code is general and applicable to all civil actions, yet in actions outside of those upon an account, where the items thereof are usually directed to be served when not contained in the pleading, the granting of the order is not a matter of course. The power must be exercised in each case according to the nature of the action and the character of the inquiry to be instituted upon the trial thereof. It appears to us that the first direction contained in the order appealed from requires the plaintiffs to. produce the legal argument showing wherein the will was not properly executed; and the second, the evidence upon which they' rely to establish undue influence; but it is not the office of a bill of particulars to compel a disclosure of these matters. In the case of Bennett v. Wardell (43 Hun, 482) which was an action, like the one before us, for the partition of real estate, and where the complaint alleged that the defendant therein claimed an interest in the property under ■a devise of a will which was-void, it was held that the court should not order a bill of particulars specifying the grounds upon which it was claimed the devise was void, and accordingly reversed the order of the Special Term granting the motion for such bill.

Moreover, we do not understand that fraud is charged in the complaint against the apparent devisee, but the order requires the disclosure of any acts of fraud relied on, which may have resulted in making a case of undue influence. In this respect the order was unwarranted byr the case, even if in other respects it could be upheld. But under the authority cited above, and for the reason hereinbefore stated, we think that the order of the Special Term was not supported by the case presented.

Dwioht, P. J., and Lewis, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements of appeal, and the motion denied with ten dollars costs.


author: Maoombee, L:

text:
    FRED R. GRAY, Respondent, v. THE ROCHESTER CITY AND BRIGHTON RAILROAD COMPANY, Appellant.

      Negligence — injury lo a passenger standing on the outside step of a street railroad car — defects in the tracks.

    A passenger was riding upon an open street car, standing about midway oí its length upon a continuous step which ran along the outside of the car, which was already crowded when he got upon it. "While riding in this manner he was struck by a car proceeding in an opposite direction upon the other track.
    It appeared upon the trial of an action, brought to recover the damages resulting from the accident, that at the place of the accident the two tracks were nearer to each other than at other places on the route, and, further, that by the sinking of a rail at this point the car, upon which the passenger was, pitched towards the other track.

      Held, that a verdict for the passenger would not be disturbed.
    That the railroad company owed the passenger the duty of keeping its tracks in good order, and was liable in damages for injuries caused by its failure in this regard, where the passenger had no knowledge of the danger.
    Appeal by the defendant, the Rochester City and Brighton Railroad Company, from a judgment, entered in the office of the clerk of Monroe county on the 20th day of February, 1891, in favor of the plaintiff, after a trial at the Monroe Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $400; and also from an order, dated the 21th day of February. 1891, denying the defendant’s motion for a new trial.

      Theodore Bacon, for the appellant.

      0. Van Voorhis, for the respondent.
   Maoombee, L:

The plaintiff while riding upon one of the defendant’s open cars, known as an excursion car, was struck by another car passing in the opposite direction upon an adjacent track. At the time of this accident, which was in the middle of the afternoon of June 13, 1889, the plaintiff, with many others who crowded the car, was on his way to attend a base ball game in the eastern part of the city of Rochester. He boarded the car opposite his store on Main street, near Cortland street, where the same stopped for passengers. The seats of this car ran cross-wise. The car was crowded at the time the plaintiff undertook to get on board. At each end of the car was a platform, aud these platforms were also filled with standing passengers. A continuous step or rail ran the whole length of the car on either side, half-way between the platform of the car and the ground. There were six posts on each side supporting the roof of the car. The plaintiff was riding upon the north rail or step of the car, being upon the side towards the other street car track, with one foot upon the rail and the other upon the floor of the car, hanging by his hands to the upright bar or post about midway of the car. After passing East avenue on Main street, and while opposite what is known as the Sibley Block, a one horse car of the defendant was met and was passed without accident, the plaintiff’s attention having been called to it either voluntarily or through a notice of some one else. Close behind the one horse car was a larger car drawn by two horses, to which the plaintiff’s attention had not been called, and which he did not see and was unaware of its approach. Nor did any of the other passengers similarly situated see the approach of this large car. The last-named car on the north track came in contact with the plaintiff and others, and for the injuries there received by the plaintiff this action is brought.

Evidence was given in behalf of the plaintiff to the effect that, at the place where this collision happened the two tracks of the ■defendant’s road were nearer to each other than at other places along the route, and also, that by the sinking of the south rail of the north track the cars at the point named pitched toward each •other, rendering the position of the persons riding upon the step more dangerous than elsewhere upon the railroad. There is no ■evidence to show that the plaintiff or any of the passengers standing upon that rail knew the fact of this specially dangerous condition of'the tracks. We are bound to assume upon this appeal, as it seems to us, that the verdict of the jury was, as it well might have been, placed solely upon this ground.

We are not able to say from the evidence, that had these tracks been placed at the same distance as elsewhere upon the route, and both had been in a safe condition, the plaintiff would have come in contact with the car running upon the north track.

The defendant owed a duty to its passengers to keep its tracks in good order; and a failure to do so rendered it liable for tlie injuries to the plaintiff which were inflicted without fault on liis part. This serious omission of duty in respect to the tracks of tlie railroad, pointed out above, and upon which our judgment may safely rest, takes the appeal out of the operation of the cases of Coleman v. Second Avenue Railroad Company (114 N. Y., 609), and Craighead v. B. C. R. R. Company (123 N. Y., 391), greatly relied upon by the learned counsel for tlie appellant.

It follows that the judgment and order appealed from should be-affirmed.

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

Judgment and order appealed from affirmed.


author: MaooMber, J.:

text:
    In the Matter of the Final Accounting of EDGAR D. MATHER (Appellant), as Assignee for the Benefit of the Creditors of LINCOLN A. MINK.

      Assignments — liability of an assignee for not attacking a fraudulent judgment — advice of counsel — definiteness of objections to an assignee’s account.

    On the day previous to his making an assignment for the "benefit‘of creditors, a-debtor confessed judgments in favor of certain relatives, to the Knowledge of the' assignee, a banker, with whom it was at that time arranged by the assignor that the assignment should be made on the following day. The sheriff at once-seized, under execution issued upon such judgments, the debtor’s property.
    Subsequently certain of the assignor’s creditors notified the assignee that such judgments were fraudulent, and that if any moneys were paid upon such judgments they would hold him personally liable therefor. No creditor, however, requested specifically that an action be brought to set aside the judgments, or offered to contribute to its expense.
    The assignee had competent counsel and was advised that the judgments were valid.

      Held, that it was error to charge him upon his accounting with the amount of such judgments.
    That there being no finding of a negligent omission of duty, mere failure to act upon the part of a layman, proceeding under legal advice, did not make him personally liable.
    The objections filed against an assignee’s account should be sufficiently definite to-apprise him of the grounds of objection thereto.

      Appeal by Edgar D. Mather, assignee, from the final decree and judgment granted by the Ontario County Court herein, dated September 15,1890, and duly entered in the Ontario county clerk’s office.

      II. M. Field, for the assignee, appellant.

      Mark T. Powell and John Golmey, for the creditors, respondents.
   MaooMber, J.:

This case ivas brought into this court by an appeal from the decree of the County Court, by which the assignee, under a general assignment made for the benefit of creditors, is charged with tlié sum of .$1,183 for failure to take legal proceedings to set aside judgments confessed by the assignor to his wife and mother before the. making of the assignment.

The assignment was made on the 4th day of December, 1888. The assignor was engaged in the sale of agricultural implements and produce, and the assignee was a banker. On the day preceding the assignment, to the knowledge of the assignee, the assignor confessed two judgments, one in favor of his wife for $101 damages, besides costs; another in favor of his mother for $1,275.30 damages, besides costs. "When such judgments were confessed, as is found by the learned county judge, it was arranged between the assignor and assignee that the assignment should be executed by them on the following day, namely, the day of its date. The property of the assignor was seized by the sheriff under executions issued upon these judgments, but by an arrangement between the sheriff and the assignee, the latter was permitted to retain possession of the-personal property as the agent of the sheriff, and lie was to convert the same into cash and to apply the same upon the executions held by the sheriff, which was accordingly done, the assignee making satisfactory sales of the property and realizing therefrom as much money as could be obtained under any forced sale. The appellant also had some personal interest in one of these judgments by way of an assignment as collateral security for the payment of a note held by him, but it is not believed that such fact is of very much importance on this appeal, though considerations of delicacy arising therefrom might well have deterred him from accepting the trust under the assignment.

On the 24th day of April, 1889, the assignee was personally notified by certain of the creditors that these judgments so confessed •by the assignor were fraudulent and void, and that these creditors would charge the assignee personally on his accounting with all sums paid by him on such judgments. There appears, however, to have been no request made by them to the assignee to bring an •action to set aside such confessions, and to apply the property in the administration of his trust.

In the decision of the county judge, there is no finding that the assignee was guilty of any fraud or negligence in failing to prosecute an action in behalf of the general creditors under the assignment, for the purpose above stated, except, as the same is contained in his last finding of fact, where it is stated “ the sum of $1,183.00 is the amount of the trust funds so lost to the creditors of said trust estate hy reason of the negligence and misconduct of said assignee.” That this was not, and that it was not intended by the learned judge to be, an affirmative finding of neglect, as a fact, so as to charge the assignee personally with the loss of these funds to the creditors, is seen by an examination of other findings made by the learned judge. Upon the request of the appellant’s counsel, this special finding was made: “4. That the assignee used diligence in converting the property into money, and no loss came to the estate by reason of any act of -the assignee by converting the same into money.” ITe says further in the special finding, as follows: “ Finally, I have found and decided that the exceptions of the creditors should be sustained upon the sole ground that the assignee had failed to bring an action to have the judgment confessed in favor of Mrs. Lucy Mink vacated and set aside as fraudulent and illegal, and my reasons therefor are more fully stated in my opinion.”

The case, therefore, is one unlike that presenting the questions discussed in Matter of Cornell (110 N. Y., 351). The mere failure of an assignee to bring an action to set aside the confessed judgments is not sufficient to charge him personally with the sum of money that might have been reclaimed by the successful prosecution of such an action. It is the negligent omission of duty which alone could charge the appellant. Many reasons might exist which would excuse the assignee from bringing an action, even where it was .thought that the right of action was good. "Whatever judicial proceedings might be instituted by the assignee would be so instituted for the benefit of creditors, and not for the benefit of the assignee in any respect. The case as presented is one where the creditors have failed to induce any action by the assignee by. voluntarily assuming the expense of such litigation, or by indemnifying the assignee against personal expenses.

But it is claimed, in behalf of the respondents, that because the assignee had knowledge of the' fact that such judgments had been confessed, and that they were so confessed the day before making the assignment, he is conclusively charged with the duty of acting upon his own knowledge and in bringing an action based thereon ^Whatever knowledge the assignee personally possessed of the facts as stated above and whatever inferences may now, in the light of subsequent events, be drawn in respect to the intent with which such judgments were confessed, it must be borne in mind that every step in procuring such judgments was taken under the advice of experienced counsel, who advised all the parties that they were valid. It appears, therefore, that the knowledge which the assignee is said to have possessed was not of such a character as would lead him, as a layman, to the conclusion that he could successfully assail these judgments, and that, consequently, he cannot be charged with culpable neglect in not attempting to set them aside.

Moreover, the objections made to the appellant’s account did not sufficiently apprise him of the ground now relied upon by counsel. The objections were originally placed tinder four heads. The first and second of these were struck out by the county judge on motion. There remained, therefore, only the third and fourth objections, which are as follows: Third objection. “ To the items in said account, to wit, the goods in store sold on execution after the assignment, but levied prior to same, and that said assignee should be charged with all moneys paid out by him under and by virtue of said executions, and that he should not be credited therewith; and that such should be decreed as being in his hands for distribution.” Fourth. “ Object to so much of said account as credits said assignee with the payment of all moneys paid upon or property taken upon and under two judgments against said Mink in favor of Lucy Mink and Libbie Mink.”

These objections contain no charge of culpable neglect or of any degree of neglect of duty in failing to bring an action to set aside the judgments. Tlie judgments were valid as between tlie parties and also as to all persons other than the creditors of the assignee. They were regular and sufficient in substance and in form. They were not, consequently, void, but voidable, and that only upon the interposition of the creditors, or the assignee acting in their behalf, under evidence, [which never seems to have been placed in theassignee’s hands,] that they were made with intent to defeat the General Assignment Act of 1877 (chap. 466), or fraudulent as to such creditors. Tinder these circumstances, it was the duty of the assignee to execute the trust imposed upon him by his acceptance thereof; for the assignment must be treated as valid until declared fraudulent by the judgment of a competent court. (Knower v. C. N. Bank, 124 N. Y., 552.)

Upon the hearing of this matter the assignee had the right to be apprised of any charge that might be made against him of this grave nature. The objections, as filed, must be deemed, in substance, to have the force and effect of an answer in an action, and consequently it was tlie duty of the contestants thereby to cliarge'the assignee in a proper manner with the negligence now urged against him before calling upon him to respond in the manner stated.

It follows, from these considerations, that the decree appealed from should be reversed in respect to the charge against the assignee of items amounting in all to $1,183, and a rehearing had, with costs-of this appeal to abide the event.

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

Decree of the County Court of Ontario county reversed and a. rehearing ordered, with costs to abide the event.