author: O’Brien, P. J.:

text:
    Seth B. Robinson, Appellant, v. Herman Passavant et al., Respondents.

      Evidence justifying the finding of a referee as to an employment.

    What- evidence will justify a referee in holding that a person was not employed by a firm to sell goods, and in such employment entitled to all profits remaining after the payment of the costs thereof, and a commission added, but that before such person was entitled to any of the proceeds, a previously existing indebtedness on his part to the firm should be paid, considered.
    Appeal by tlie plaintiff, Seth B. Robinson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the city and county of New York on the 29th day of April, 1892, upon the report -of a referee, dismissing the plaintiff’s complaint upon the merits, and for costs.

      Charles De Ilart Brower, for the appellant.

      George M. Pvnney, for the respondents.
   O’Brien, P. J.:

The complaint herein alleges :

“ That in the year of 1885 Seth B. Robinson, the father of the-plaintiff herein, was engaged in business as an importer in the city of New York, and that in said year, and with the knowledge and consent of defendants, said Robinson purchased for the account of defendants, goods, wares and merchandise of the price and value of about $22,800, exclusive of duties.
“ That thereafter the said goods were delivered to and received by the said defendants.
“ That thereafter, and on or about the 10th day of September, 1885, the said defendants employed the said Robinson to sell said goods for them, and promised and agreed to pay him for his services in selling the same the excess of the price at which he might sell the same over the costs of the goods so sold, five per cent added thereto.
“ That thereupon the said Robinson, pursuant to said employment and in reliance upon the aforesaid promises and agreement, sold a large amount of the aforesaid goods, to wit, goods of the cost of about $18,000 for the jirice or sum of about $30,000.
“That thereafter, and on the 14th day of June, 1886, the said Robinson, being then a resident of the city of New York, died intestate, and thereafter the surrogate of the county of New York,, having jurisdiction in the premises; duly issued letters of administration upon the goods, chattels and effects of said Seth B. Robinson, deceased, appointing Caroline L. Robinson, his widoy, administratrix, who thereupon duly qualified as such administratrix and entered upon the discharge of the duties of her said office.
“ That thereafter, and on or about the 13th day of April, 1889; the said Caroline L. Robinson, as administratrix, for value received, duly sold, assigned and set over to this plaintiff all claim which the said Seth B. Robinson had in his lifetime against the defendants on account of or by reason of liis said services and employment as aforesaid, and also all claim which she, the said administratrix, had by reason thereof.”

The judgment asked is for the sum of $10,000, or the difference between the cost and the price for which such goods were sold.

In determining whether the conclusion reached by the referee was correct, the first question that naturally suggests itself is as to whether the cause of action, as alleged, was proved. The answer to this is to be found in the testimony produced, which, exclusive of extrinsic matters throwing light upon the situation of the parties, the character of their dealings and the nature of the business in which both were engaged, may be briefly summarized.

It appears that Mr. Robinson, Sr., was an importer of buttons; that the defendants were commission merchants, and that in 1885 the former was indebted to the latter in the sum of $18,902.84, which was secured by the deposit with defendants of certain goods. This indebtedness is called “ the old indebtedness,” and these goods “the old goods.” Robinson, Sr., imported goods from Europe through the defendants as commission merchants upon a credit or authority to buy given to him by them, or otherwise upon their guaranty given to houses abroad, and as the result of such credit extended Robinson, Sr., became indebted to defendants for the amount of the old indebtedness, for which he had given what are called the old goods as security.

In the spring of 1885, while thus indebted to defendants, Robinson, Sr., went to Europe with a credit or authority to buy to the extent of $20,000 given to him by defendants upon the firm of Anton Aub & Co. of Paris. Under this credit, and between July 2 and October 13, 1885, Robinson, Sr., purchased goods which were shipped to defendants, the invoice being made in their name, and the payments being by them made to Anton Aub & Co. According to the course of business between the parties, the defendants were to deliver the goods to Robinson after their arrival in New York city, and were to be paid for them by him, all expenses being included, together with five per cent commission as the charge of the defendants for giving to Robinson the credit or authority to buy.

About September Y, 1885, Robinson, Sr., made a general assignment for the benefit of creditors. On October 10, 1885, and before ■all the new goods had been received, the defendants executed and ■delivered to Robinson, and to his assignee, a general release. The construction to be given this release, and its effect and bearing upon the rights of the parties, are the crucial questions upon this appeal. At the time this release was delivered the old indebtedness, secured By deposit of certain goods, existed, and the result of the new venture or purchase of the new goods was not ascertained. It is shown that Robinson was desirous of getting possession for purposes of sale of the new goods, and that the defendants refused to give him possession without security, which Robinson was unable to furnish. What occurred between the parties when this arrangement was sought to be effected appears by the testimony of one Ross, who, besides Robinson and Sutton, one of the defendants’ firm, was the only person present at the interview. In answer to the question as to what was the conversation between the parties, this witness Ross .said:

“ It was only a short conversation. Mr. Robinson did not know what to do with the old goods he had on hand unless he got a new •stock that came in, and he wanted to know of Mr. Sutton about it, •and Mr. Sutton said he could not give them to him unless he gives him some security, and, I think, he suggested the name of Mr. Striker as security, and Mr. Robinson could not give that security, so Mr. Sutton said he could not deliver the goods.” “ I am talking ■of the new goods that were just arrived at the time. Then it was concluded that Mr. Sutton was to sell the goods that weije coming-in from his store, under the heading of their firm of Passavant & Oo.” “ TJnder their bill heads, in the store of Passavant & Oo., goods that he stored with them.” “ Mr. Robinson thought at the time that it would not take- more than a month _or two or three months at the furthest, until he could pay up Mr. Sutton every cent he owed' — -all the indebtedness would be cleared off and he would get then whatever was remaining, the difference, either in cash or-goods, back to his store, and that was the whole agreement at that time.”

And in another place this same witness testifies : “ Robinson was to have the whole thing; Passavant & Co.’s indebtedness would have been paid — that was all there was about it; they wanted to get themselves settled up for the old and the new goods and clear * * *”

It is upon the testimony of this witness that plaintiff’s claim is-predicated that Robinson, Sr., was to be employed by defendants to-sell the new goods and entitled to all the profits remaining after payment of costs, and five per cent commission added; and an effort was made upon the claim of such an agreement to show that while that was the situation of the parties the release in question was given, which was intended to discharge the old indebtedness in consideration of the retention by defendants of the old goods,, thus giving Robinson a claim by way of compensation against defendants for anything that might be realized upon the sale of the-new goods over and above what they were to receive under such alleged agreement. The testimony fails to show whether the release was prior or subsequent to this conversation detailed by the witness Ross; yet the necessity for such proof — the burden of showing which was upon plaintiff — clearly appears when we consider that if it liad been shown that the release was subsequent, that would necessarily be the end of plaintiff’s case, as showing that the release was not intended merely and solely as a discharge of the old indebtedness.

The weakness, therefore, of appellant’s contention appears: First, in the failure to prove the allegations of the complaint by showing an employment by the defendants of Robinson, Sr., and, secondly, in failing to show that the release was intended as a discharge only-of the old indebtedness. There is nothing in the case to show that the arrangement with respect to the new goods was any other or different from that which had previously existed between the parties, excepting that Robinson having failed and made an assignment for the benefit of his creditors, the defendants retained possession of the goods, billed them in their own firm name,- and received payments upon the sales, to the end that they might be secured to the extent of their advances and the five per cent commission. We think, therefore, that there was sufficient evidence to justify the referee in finding that the release was not intended to release the old debt, or the indebtedness growing out of the purchase of the new goods, or any part of either of such debts, or to discharge the ■security for such debts, or any part of the security for either of such debts; ” and that in the absence of any evidence preponderating the other way, such a finding and the jridgment .based thereon should not be disturbed by this court.

■ Moreover, the conclusion reached by the referee seems the most natural and most consonant with reason and justice. The defendants were engaged as commission merchants, lending their credit to Robinson, who subsequent to his failure stood in the position towards them of owing about $18,000, which was secured by goods, nominally of the value of $19,000; and in addition thereto was indebted to them for whatever guaranties they had given to Anton Aub & Co., for the goods purchased between July and October. No good reason is assigned why they, should give up their lien upon both the old and the new goods in Robinson’s favor; but, on the contrary, it would seemingly be the natural arrangement between the parties that, after- the application of all the security, both old and new goods, which the defendants had to the payment of their indebtedness, whether for the old or new goods, any surplus remaining, under the course of dealing as between the parties, should be turned over to' Robinson. It is conceded by the stipulation of the counsel that the amount of such indebtedness for the old and the new goods exceeded the total credit as the result of the application of the old goods and what was realized from the sale of the new; so that upon a statement of the account between the parties of all their transactions, there would be no credit balance in favor of Robinson, Sr.

The theory presented by the allegations of the complaint, that the former relations between the parties were changed, and that with respect to the new goods Robinson entered into the employ of the defendants, is not sustained by the evidence, and is inconsistent with the prior dealings between the parties.

Upon examining the record, therefore, we are of opinion that the cause of action, as stated in the complaint, was not made out, and that the referee was justified for the reasons given in his able opinion in dismissing the complaint, and that his conclusion should not be disturbed, but that the judgment entered upon his decision should be affirmed, with costs.

Follett and Parker, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Follett, J.:

license: Public Domain

text:
    William H. Clark, Respondent, v. Charles T. Poor, Appellant, Impleaded with Others.

      Demurrer — when am action to establish, a will is not emtho'i'ixd by section 1861 of the Code of Ginil Procedure.

    A demurrer runs through the entire record, and the court will give judgment to the party who, on the whole, appears to he entitled to it.
    Section 1861 of the Code of Civil Procedure does not authorize an action in the State of New York to prove and establish the will of a resident of another State which has been duly admitted to probate in such latter State.
    Article 7 of title 3 of chapter 18 of the Code of Civil Procedure provides a complete scheme for establishing and giving effect within the State of New York to wills duly admitted to probate in other States.
    Appeal by the defendant, Charles T. Poor, from a judgment of the Supreme Court in favor of the plaintiff, rendered at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 8th day of August, 1893, sustaining the demurrer interposed by the' plaintiff to the defendant’s answer, with notice of an intention to bring up for review on such appeal the interlocutory judgment entered in said New York county clerk’s office on the 26th day of April, 1893.

      W. JP. Kna/pj), for the appellant.

      Robert I. JRedfield, for the respondent.
   Follett, J.:

The following facts are alleged in the complaint: November 8, 1892, Anna T. B. De Witt, a resident of the State of Connecticut, died in said State, leaving real and personal property therein, and also real and personal property in the State of New York. She left a last will and testament, executed June 26, 1890, in the State of New York, by which she bequeathed to the plaintiff twenty shares of the stock of the American News Company. December 2, 1892, said will and testament was duly admitted to probate in the county of Fairfield, in the State of Connecticut, and was duly recorded in the office of the Probate Court of that county, and letters were duly issued thereon. The will has not been probated in this State. June 6, 1893, this action was begun to have the will proved and established in this State. March 16, 1893, the representative of the estate answered that the twenty shares of stock bequeathed to the plaintiff had been tendered to him, and that he had no interest in having the will proved and established in the State of New York, and demanded a judgment that the complaint be dismissed, with costs. March 18, 1893, the plaintiff demurred to the answer on the ground that it is insufficient in law upon the face thereof,” which was sustained, and an interlocutory judgment entered. The defendant not availing himself of the privilege granted to plead anew, a final judgment was entered awarding the relief demanded in the complaint.

A cause of action is not stated in the complaint. It is alleged therein that the will has been duly probated in the State of Connecticut, wherein the testatrix resided and died. It is not alleged that the wrill or the proceedings by which it was probated have been questioned. Section 1861 of the Code of Civil Procedure, under which this action was brought, does not authorize an action to prove and establish the will of a resident of another State which has been duly probated therein. This section is a re-enactment of sections 63, 64, 6Y and 68 of title 1, chapter 6, part 2 of the Revised Statutes, by which it appears that the term establishing a will ” means the same as proving a will, and such is the obvious meaning of the term as used in the section of the Code referred to, which, has no relation to wills which have been duly proved. Article 7 of title 3 of chapter 18 of the Code of Civil Procedure. provides a complete scheme for establishing and giving effect within this State to wills duly probated in other States. A demurrer runs through the entire record, and the court will give judgment to the party who, on the whole, appears to be entitled to it.

The final and interlocutory judgment should be reversed, and the complaint dismissed, with costs.

YaN Brunt, P. J., and Paekbe, J., concurred.

The final and interlocutory judgments reversed, and the complaint dismissed, with costs.


author: Eollett, J.:

text:
    Gustav A. Koke and Others, Appellants, v. John Henry Balken and Others, Respondents.

      Action maintainable against one of two wrongdoers — evidence sufficient to a/uthorize a finding by the court.

    A person wronged may bring an action against one of two wrongdoers, and the fact that the other has not been joined is not.a defense.
    Assuming that a tenant in common, who is in no way x’elated to his co-tenants, owes a duty to them in respect to their interest in the common property, so that he could not become a purchaser to their disadvantage, the evidence which will authorize a court in finding that this duty has not been violated, considered.
    Appeal by the plaintiffs, Gustav A. Koke and others, from a judgment of the Supreme Court in favor of the defendants, rendered upon a decision of the court after a trial at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 1st day of March, 1893, adjudging the defendants to be the owners of certain real estate, and dismissing the plaintiffs’ complaint upon the merits, and for costs.

      Josiah T. Marem, for the appellants.

      WilUam H. Mazrtin, for the respondents.
   Eollett, J.:

This action is for the recovery of a judgment declaring that the defendants hold an undivided half of No 117 Christie street, upon a resulting trust for the plaintiffs, and that they be required to convey and deliver possession of the same to them, and that they account for rents and profits.

April 29,18^3, the-premises in controversy were conveyed to John Balken and Frederick O. Koke, in consideration of $16,250, they becoming tenants in common, each owning an undivided half, subject to a mortgage of $10,000, which they assumed and agreed to pay. March 13, 1876, Frederick C. Koke mortgaged his undivided half of the premises to secure the payment of $1,500 on March 13, 1878, with interest, which mortgage was duly recorded.

October 2, 1876, Frederick C. Koke died intestate, leaving him surviving his widow, Elizabeth F. Koke, and eight children, the plaintiffs in this action (of whom Elizabeth F. Koke is the mother), his heirs and next of kin. October 10, 1876, Elizabeth F. Koke was appointed administratrix of the estate of her husband, and also the general guardian of her children, all of whom were then minors.

February 21, 1878, John Balken and Elizabeth F. Koke entered into this agreement:

“Agreement made and entered into this 21st day of February, 1878, between Frederika Koke, administrator of the goods, chattels and credits of Frederick C. Koke, deceased, party of the first part, and John Balken, of the same place, party of the second part:
"Witnesseth, That the said party of the first part agrees to sell unto the said party of the second part the undivided one-half part of house and lot known as No. 117 Christie street, in the city of New York, for the sum of nine thousand one hundred and seventy-five dollars, to be paid to her as follows, viz.:
“ The sum of sixty-five hundred dollars by assuming two mortgages for that amount, being a lien on said undivided one-lialf of the said house and lot, with interest from March 1st, 1878.
“ The sum of twenty-five hundred dollars by his bond secured by a mortgage on said premises, and payable in five years or sooner, with interest at the rate of seven per cent per annum, payable half yearly.
“ The sum of one hundred and seventy-five dollars in cash on delivery of deed.
“ And the said party of the second part hereby agrees to buy the said undivided half of said premises for the price above stated, and pay for the same as above specified.
“ Tbe deed to be debvered as soon as a decree of tbe surrogate of tbe city and county of New York shall be obtained for tbe sale of said premises. Party of second part to take possession and be entitled to tbe rents from March 1st, 1878; said premises to be conveyed free and clear from all incumbrances, except as aforesaid.
In witness whereof, tbe parties hereto have hereunto set their hands and seals on tbe day and year first above written.
“JOHN BALKEN. [seal.]
“F. KOKE. [seal.]
“ Sfealed and delivered in presence of
“F. W. KoKe.”

April 1, 1878, the $1,500 mortgage above mentioned was assigned by tbe mortgagee to Mary Balken, wife of John Balken, who paid tbe purchase price therefor.

July 24, 1879, Mary Balken commenced an action in tbe Court of Common Pleas for tbe foreclosure of that mortgage, wherein Elizabeth F. Koke, individually and as administratrix, and her eight children were parties defendant. A guardian ad litem was duly appointed for the infant defendants.

August 22, 1879, the usual judgment of foreclosure and sale' was recovered in the action, the amount found due being $1,650.48, with interest from March 16, 1878. Subsequently the premises were sold pursuant to the judgment to John Balken, who received a conveyance dated September 15, 1879, which was duly recorded. This sale was subject to the mortgage for $10,000. Under this deed Balken entered into possession of the premises.

December 1, 1879, John Balken executed a mortgage on said premises to Elizabeth F. Koke, as administratrix of her husband’s estate, for $2,500, with interest, no part of which has been paid except the interest thereon to June 1, 1890. Said mortgage, together with $175 in cash, was the consideration paid and secured to be paid by John Balken for the interest of the plaintiffs and of their mother in said premises. September 28, 1880, John Balken died leaving Mary B. Balken, his widow, and seven children, his heirs at law who are defendants herein. He left a will which was duly admitted to probate, and letters thereon were issued to Jonas Strommel, the executor therein named, who is a defendant in this action. By bis will the testator devised all of bis real estate to bis widow during her life, or until her remarriage, and at her death or remarriage be directed bis executor to sell the same and divide the proceeds among his seven children. Subject to the life estate the realty descended to the testator’s seven children. The widow is still living and has not remarried.

It is urged that Balken owed a duty to his co-tenants in common in respect to this property, and that he could not become a purchaser to their disadvantage. Assuming that one tenant in common in no ways related to his co-tenant owes this duty, we fail to find any evidence in the admitted facts above stated which would have authorized the court to have found that this duty was violated. It does not seem to us that the contract above quoted furnishes the slightest evidence of intentional bad faith on the part of either of the parties to it. It is expressly provided therein that the sale should be pursuant to a decree of the surrogate, which negatives any suspicion that the transfer of title was to be secret or fraudulent. Besides, it appears that the bond and mortgage executed by Balken for $2,500 was given, not to Elizabeth F. Koke individually, biit to her as administratrix of her husband. This fact does not appear from the pleadings nor from the findings, but it is disclosed by exhibits 8 and 9, read in evidence by the plaintiffs. This shows that the sale was not made by the mother of the plaintiffs for the purpose of converting the avails thereof to her own use. Having received the security in her representative capacity she is liable to account to her children for it, and the mortgage is still unpaid and can be easily reached by them. "We do not think that the evidence received would have warranted a judgment in favor of these plaintiffs and against these defendants. It is asserted that great injustice was done by the court’s refusing to permit Mrs: Koke to testify to certain facts on the ground that she was disqualified under section 829 of the Code. The plaintiffs offered to show by her that she received the rents and profits of the realty up to March 1, 1878. Assume that she did, she had the right to. Upon the death of the father of the infants, their mother became their guardian in socage (1 R. S. 718, § 5), and as such she had the right to receive the rents of their realty. (Byrne v. Van Hoesen, 5 Johns. 66 ; Beecher v. Crouse, 19 Wend. 306; Emerson v. Spicer, 46 N. Y. 594.)

October 10, 1816, she became the general guardian of the infants, and as such had the right to receive rents of the realty. (2 R. S. 150, §§ 3, 10; 2 Kent’s Comm. 238.) It may be said that the record does not show that she was the guardian of the estates as well as of the persons of the infants. If this be so, in that case the guardianship in socage continued and she had the right to collect the rents in that capacity. The exclusion of this evidence did the plaintiffs no harm, The plaintiffs offered to show by Mrs Koke that in the summer of 1819, Mr. Balken came to her and told her that he was advised that the surrogate could not make any such order, permitting her to sell, as this contract provided for, and that the only way the arrangement could be earned out, and he could get title, would be by foreclosure of the second mortgage, and he told her that he would have the second mortgage foreclosed and buy it in at the sale, and would, notwithstanding, give her the $2,500 mortgage, the same as he had agreed in this .contract, and told her that she need not attend the sale ; that it was not necessary for her to take any notice of it at all; that he would, attend to it.” This offer was rejected. Even if the facts asserted in the offer had been proved or admitted, we do not think it would have furnished ground for the relief sought. All of the evidence tends to show that this sale was made openly and in the interests of the estate. The court found that, at the time of the sale, the fair market value of the whole property was $20,000. It was subject to a mortgage of $10,000, which reduced the value of the equity of the tenants in common to $10,000, one-half of which, $5,000, belonged to Balken and $5,000 to the plaintiffs. The amount due on the mortgage given by Koke on his ¿liare at the time of the judgment of foreclosure was $1,650, which reduced the value of the share to $3,350, for which, say nothing about the costs of foreclosure, Balken paid $2,675, which left a margin of only $675.

The witnesses all agreed that an undivided half of realty will not sell for so much proportionately at a private or judicial sale as the whole would bring sold together, and that the difference is from five to ten per cent on the value of the property. From this evidence it appears that Balken did not deprive these plaintiffs of any part of that which was justly theirs. This sale was made in 1879. This action was begun March 24,1891, twelve years afterwards. The plaintiffs became of age at the following dates : Frederick W. Koke, March 21, 1871; Gustav A. Koke, August 24, 1878; Amelia Koke, December 25, 1879; Godfrey 0. Koke, October 26, 1883 ; Louisa Koke, September 5, 1884; Emma Koke, July 2, 1888; Frederika Koke, February 5, 1890; William A. Koke, September 18, 1892.

During all these years the adult plaintiffs have lain by until the property has greatly increased in value, and now seek to charge the heirs of Balken, who had no part in the transaction, with the results of what they allege to be a concurrent fraud of their own mother and general guardian and the deceased father of the defendants. The mother of these plaintiffs, if any wrong was done, was the principal wrongdoer, and the plaintiffs have their remedy against her. Of course, persons wronged may bring their action against one or two wrongdoers, and the fact that the other has not been joined is not a defense; but this is an equitable action, and the plaintiffs are bound to show some equities as against these defendants, which, we think, they utterly failed to do. The case at bar bears no likeness to Carpenter v. Carpenter (131 N. Y. 101). In that case the uncles, who were tenants in common with their nephews and nieces, by a collusive sale of the realty, defrauded the infants out of a large property, and the action was promptly brought against the wrongdoers.

The judgment should be affirmed, with costs.

YaN BRUNT, P. J., and Parecer, J., concurred.

Judgment affirmed, with costs.


author: Parker, J.: Tan Brunt, P. J.:

text:
    Maria Miller, Respondent, v. The Fort Lee Park and Steamboat Company, Appellant.

      Action to recover damages. sustained tlwough negligence &emdash; evidence improperly stricken out&emdash;when it does not require a reversal of the judgment &emdash; evidence ■ sufficient to justify compensation for future pain.

    In an action brought to recover damages for personal injuries caused by the plaintiff’s falling from the gang plank while crossing from the defendant’s steamboat to a wharf, it was contended on the part of the plaintiff that the defendant was negligent in not providing hand rails to the gang plank and sufficient lights.

      Upon the trial a managing director of the defendant testified that they had never lost a passenger from the gang plank in carrying a million and a half of people. Upon motion this evidence was stricken out, the defendant excepting.

      Held, that such evidence was competent; that the defendant had the right to submit to the jury, for its consideration, whether the company had reason to apprehend an accident from the use of a gang plank without guards.
    Subsequently the same witness testified that the same style of gang plank had been in use since the boat was built, had been used day and night, and they had never lost a passenger therefrom, although they had had hundreds of them on that boat, and that was the first case in twenty-two years. The captain testified that they had used that kind of a gang plank on that steamer for thirteen years, both day and night, at all times of the year, and he had never known of any other passenger falling off. An employee of the defendant for about twelve j^ears testified that they had used the same gang plank that night that they had always used before; that many thousands of passengers had passed over that gang plank, and that no other passenger had ever fallen off during that time.

      Held, that the subsequent evidence had the same general effect as that struck out; that it righted the wrong, and that the erroneous ruling should not lead to a reversal.
    In charging the jury the court said: “You can award her such sum as will compensate her for the suffering and pain she has endured since the accident, and for such suffering in the future resultant directty from the accident.”
    The accident occurred on June 38, 1891, and the action was tried on March 10, 1893; the .plaintiff testified that the night of the accident she experienced pain in her side and in her arm; that she went to bed and was confined there for three days under the doctor’s care. After the doctor had called at her house for three days she went to his office, and continued to go there up to the time of the trial, at first every day, then twice a week, and then once a week up to date. That since that time she had felt the pain in her side and wrist; that her wrist was still swollen; that she never had any pain before in her wrist, but that now she has pain there all the time; that prior to the accident she never had rheumatism, but since then she had suffered greatly therefrom. The plaintiff’s physician testified that on examining the plaintiff he found that she had sustained quitea large bruise on the side of her ribs under the arm ; that she complained of pains in her arm-; that every attempt to use her arm caused great pain, and from a careful examination he determined that there was a partial dislocation of the shoulder. The first time that she called at his office he found that the bruises were disappearing, though she was not able to move her arm, and in attempting to move it, it caused great pain ; that he made another examination a month afterwards, and found her unable to move her arm ; that the pain was constant but not so severe as at the earlier stage. Three or four weeks afterwards he found that she was able to move her arm better, though it could not be moved to the limit. Six or seven weeks afterward he found that she had not improved very much, and lie had not examined her arm since. He had prescribed for her a number of times, and every time • she came to him. He had prescribed internal remedies to remove the pain, nervousness and prostration from -which she suffered and -which caused insomnia, and he used external remedies to relieve the inflammation. She had been troubled with insomnia since that time, and he had a number of times prescribed for her. That he saw her arm the morning of the trial; from a superficial examination he had noticed that it was larger than the other, and that it had been larger since the accident. That the swelling of the arm was the result of the injuries sustained at the time of the accident, and that she now suffered from rheumatism, which he had traced to the accident, that being the only thing he had found to account for it.

      Held, that the evidence was sufficient to justify the court in charging the jury that they might compensate the plaintiff for such future pain as they might conclude she would suffer. (Van Brunt, P. J., dissenting.)
    Appeal by tbe defendant, tbe Fort Lee Park and Steamboat Company, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe city and county of New York on tbe 14th day of March, 1893, upon a verdict of tbe jury in favor of tbe plaintiff for $2,000, rendered after a trial at tbe New York Circuit, and also from an order denying tbe defendant’s motion to set aside tbe verdict and for a new trial, dated tbe lOtb day of March, 1893, and entered in said New York county clerk’s office.

      Alfred Ta/ylor, for tbe appellant.

      Alfred Steolcler, for tbe respondent.
   Parker, J.:

Tbe judgment under review awards to tbe plaintiff damages for injuries sustained while tbe relation of common carrier existed between her and tbe defendant, by reason of which it was chargeable in law with tbe duty of taking all reasonable precautions to secure to her free and safe ingress and egress to and from its boat.

Tbe defendant maintains a line of steamboats from the foot of Canal street to Fort Lee on tbe New Jersey shore, having intermediate landings at Twenty-second and Tliirty-fourtb streets. On tbe twenty-eighth day of June, plaintiff was a passenger on one of its steamboats called tbe Pleasmvb Yalley.

"When tbe boat reached tbe foot of West Thirty-fourth street it was made fast, and a gang plank about thirteen feet long and three feet nine inches wide was used for a passageway between tbe steamer and a barge which were separated from each other by about three feet, and from the barge the passengers passed to the dock.

The passengers were informed that all who desired to land at this point could do so. In response to this information plaintiff, accompanied by her child, whom she had taken by the hand, proceeded with others to cross the gang plank, and when about mid-way between the steamboat and the bai’ge she fell over, dragging her child with her, resulting in injuries for which the jury have awarded compensation.

The defendant contended upon the trial, as it does upon this appeal, that it was not negligent in failing to provide at this, and other intermediate landings, a gang plank with a guard rail. Evidence was presented in its behalf explaining why, at its terminal landings, gang planks with a guard rail were used while gang planks •without were made to answer the same purpose at the intermediate landings. The reason for this difference was stated to be that there was no convenient place on the steamboat where so large a gang plank as it is necessary to have where guard rails are used could be carried, and, therefore, it was necessary that such gang planks should be left on the docks, and as the defendant controlled the docks at its terminal landings it was enabled to make use of them at such landings, and did, but at the intermediate landings it had no such control, and was, therefore, obliged to make use of gang planks without guard or rail. Its further contention was that, in view of the circumstances mentioned, and the additional fact that it had made use of similar gang planks for a period of over twenty years without an accident previous to the one in question, there was no occasion to apprehend that an accident would occur, and unless it could have been reasonably anticipated that injury would result from the use of such a gang plank, there could not be actionable negligence. It is insisted that, applying the rule that a party will not be chargeable with negligence where the accident is of such a nature that 'the party had no reason to apprehend that it could occur, and the arrangements were of such a character as experience had up to that time shown to be safe and suitable and sufficient to meet the requirements of his duty (Loftus Case, 84 N. Y. 455), the defendant’s motion for a nonsuit should have been granted. It is unnecessary to determine whether this general rule would operate to protect the defendant if plaintiff predicated its liability solely on the use of a gang plank without a guard, for the plaintiff insisted that as it was dark the absence of the guard rail made it the special duty of the defendant to provide that the gang plank should be properly lighted, so that the persons in passing off could see where to step, and that it wholly neglected to do so.

Plaintiff testified that when she was in the middle of the gangplank it was very dark, and she undertook to catch hold of the guard rail where none was and fell over. She further said: “ When I was going off of the boat that night I was not talking to anybody; I did not see the gang plank when I went on it; I just followed the people and was walking off; I did not see any light with the crowd; there was too much of a crowd; I did not see any light.”

William Hipperling testified that he took hold of the little boy by the hand when they were going up the gang plank to the barge; that “ it was dark at the time; one man with a lantern, but he was back of the crowd ; he was not at the place where the passengers were getting off; he was on the other side of the passengers; * * * There was no guard or rail on the gang plank; there was no light there at the gang plank; the light that the men had back of the passengers was a lantern, a stnall one, about a foot high; it did not throw any light out to the gang plank.”

Thomas G-. Kennedy, a police officer, testified that he was present on the dock, as was his duty, to preserve order, and that it was dark at the time the boat landed.

Indeed, the necessity for light is not controvered, defendant’s contention being that it provided necessary and suitable lights on this occasion, so that if the plaintiff had looked she would have had no difficulty in seeing where to step. But while plaintiff’s evidence in regard to the absence of light was contradicted, a question for a jury was presented, for the story of the plaintiff and her witnesses might be credited, in which event they would be authorized in finding that defendant failed in the discharge of the duty which it owed to its passengers on this occasion. As under the facts proven the question of contributory negligence was one for the jury, the-court rightly denied defendant’s motion to dismiss the complaint. During the trial a managing director of the defendant testified : “We have never lost a passenger from these planks in carrying a million and a half of people.”

This evidence was stricken out on motion, defendant excepting. This was error, as the defendant had the right to have evidence of this character considered by the jury when determining whether the company had reason to apprehend an accident from the use of a gang plank without guards. But while the ruling was erroneous, we think it should not lead to a reversal of the judgment, because the wrong was subsequently righted by the admission of evidence having the same general effect, as a brief reference to the record will show. The same witness testified: “ Q. I understand you to say that this same style of gang plank has been in use for twenty years ? A. This same style of gang plank has been in use since the boat was built. Has been used day and night. We have never lost a passenger from that style of gang plank or a similar type. We have made a hundred of them, I presume, on that boat, and that is the first case in twenty-two years.”

The captain testified : “We have used that same kind of a gang plank on that steamer to my recollection for thirteen years. We have used it ever since I have been there. It has been used both day and night, at all times of the year. I never knew of any other passenger falling off.”

Henry Hartnett, who had been in the employ of the company for about twelve years, testified: “We used the same gang plank that night that we had always before used; * * * many thousand of passengers passed over that gang plank; no passenger ever fell off during this time before.”

In charging the jury the court said: “You can award her such sum as will compensate her for the suffering and pain she has endured since the accident, and for such suffering in the future resultant directly from the accident.”

Defendant’s counsel excepted, and made several requests to charge in relation to that subject, which were refused and exceptions taken, thus presenting squarely the question, whether the evidence authorized the jury to compensate her for such pain as they should determine she would suffer in the future.

The accident occurred June 28, 1891, and the action was tried March 10, 1893, or nearly a year and nine months later, at which time plaintiff testified that tlie pain which she experienced in her side and arm immediately succeeding the injury continues. She testified: I experienced the pain in my side and in my arm. "Went to bed that night and was confined to my bed for three days under Dr. Wimmer’s care. After he called at my house for three days I went to liis office. Go there yet. Right after the accident went every day after the three days; the first part of the time twice a week, then once a week after that up to date. Have felt the pain since that time on the side and wrist; wrist is still swollen'. Never had any pain before that in my wrist, but have pain now there all the time. I never had rheumatism before June 28, 1891.” “ Q. Since that time have you been troubled with it ? ” [Objected to ; objection overruled; exception taken.] “A. I do, and suffer great pain, especially when we have change in the weather.’ ”

George "Wimmer, a witness, testified: I am a physician; graduate of Columbia College. Have been pracfíbing as such in the city of New York for a number of years. I have known the plaintiff since I have been treating her.

“ My examination showed that she had sustained quite a large bruise — the size of my hand here — on the side of the ribs under the arm; the arm hanging by the side would cover the bruise.

She complained of great pain in her arm. I attempted to have her make the several motions with the arm to find she was unable to use it — unable to lift the arm in the customary directions; every attempt to use the arm caused great pain, and by careful examination I determined there was a partial dislocation of the shoulder.

“ My next examination was the first time she called at my house. I found that the bruises were disappearing. She was not able to move her arm; in attempting to move it, it caused much pain.

A month after I made another examination. I found her unable to move the arm again, but the pain was constant, but not so severe as at the earlier stage.

She always had pain whenever the arm was moved.

“ My next examination was probably three or four weeks after the second. I found she was able to perform the movements better, although the arm could not be moved to the limit. The pain was always there.

“ My next examination was not within six or* seven weeks from tlie third examination. I found she had not improved very much between that and the last examination. I have not examined the arm since.

“ I have prescribed for her a number of times for the pain she suffered. I prescribed for every time she came to me.

I prescribed internal remedies to remove the pain, nervousness and prostration from which she suffered which caused insomnia; she was unable to sleep, and I used external remedies to relieve the inflammation; she has been troubled with insomnia since that time, and I have a number of times prescribed for her; I saw her arm this morning. The examination this morning was merely superficial. I noticed it is more swollen than it was — larger than the other one. The arm has been larger since the accident.

This swelling of the arm is the result of the injuries she sustained at that time. She is suffering from.rheumatism now. I have traced it to the aflfcident. That is all I find to account for her rheumatism that she suffers from at the present time.”

This evidence was sufficient under the ruling in Kane v. N. Y., N. H. & H. R. R. Company (132 N. Y. 160) to justify the court in charging the jury that they might compensate her for such future pain as they might conclude she would suffer.

The judgment should be affirmed, with costs.

Follett, J., concurred.

Tan Brunt, P. J.:

I dissent. There was no evidence justifying the subpiission of the question of future damages to the jury. It was simply allowing them to guess.

Judgment affirmed, with costs.


author: Parker, J.:

text:
    Jennie B. Woolley, Respondent, v. William Buhler, Jr., Appellant.

      Action for brokerage upon the exchange of pi’operty — proof that plaintiff was the procuring cause thereof— not inferred from the excha/nge — insufficient evidence.

    In an action brought to obtain brokerage upon the exchange of property it is necessary for the person claiming such brokerage to prove that he was the procuring cause of the exchange, and this cannot be inferred from the fact that there was an exchange.
    Upon the trial of an action brought to recover a broker’s commissions upon an exchange of property the plaintiff testified that he received from the defendant a description of the properties which he had for exchange September 23, 1889. and on September twenty-fifth he offered the defendant’s properties to one Hawkins for exchange. Three days after he called upon the defendant and gave him a diagram of the Hawkins property. About a month later he took Hawkins to the defendant’s office at Hawkins’ request. The defendant not being in they left without seeing him. On October twenty-eighth he called on the defendant, who informed him that Hawkins had been in, but that nothing had been done, and then the defendant gave him a description of a second mortgage for §50,000 to show Hawkins, which he did.
    Sometime before the exchange was made, the defendant made a contract with oné Malcolm, by which it was agreed that, if Malcolm should effect an exchange of this property, his compensation should be $500. After the exchange was made with Hawkins, the defendant paid Malcolm'§500 as provided by such contract. Several months prior to the exchange, Malcolm had a list of the defendant’s properties, and inquired of one Robinson, another real estate broker, whether he knew of any property which could be exchanged for that of the defendant. Robinson was acquainted with Hawkins, and at that time had his property for sale or exchange. Thereupon Robinson brought Hawkins to see Malcolm, who proposed an exchange of the defendant’s real estate, but the proposition did not prove satisfactory, as’ Hawkins desired to make an exchange which would yield him some ready money. Malcolm then went to the defendant and told him the result of his interview with Hawkins. The defendant suggested that he had a $50,000 mortgage which might form a part of the exchange. This proposition was in turn communicated by Malcolm to Hawkins, who thought favorably of it, in case he could induce a certain creditor to take the mortgage, in which he was afterwards successful; and on September tenth Malcolm testified that he took Hawkins to the defendant and introduced them, on which occasion there were present Hawkins, the defendant, Robinson and Malcolm, and their negotiation finally resulted in an agreement to exchange, which was reduced to writing and duly executed.
    This testimony of Robinson, Malcolm and the defendant as to the transaction was uncontradicted, except in so far as the plaintiff's evidence was in conflict with it.

      Meld, that the finding of the referee, that the plaintiff was the procuring cause of the exchange, was against the weight of the evidence and that the judgment rendered thereupon should he reversed.
    Appeal by tbe defendant, William Buhler, Jr., from a judgment ef the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 17th day of July, 1893, upon the report of a referee.

      Geo. O. Holt, for the appellant.
    . W. T. Hwdsall, for the respondent.
   Parker, J.:

The judgment appealed from was entered on the report of a referee, and awards to the plaintiff, as assignee of Milton T. Woolley, $920, for broker’s commissions.

The referee found that an agreement was entered into between Woolley and the defendant, by which the latter agreed to pay the former a commission of one per cent on the face value of certain properties in case lie should procure a sale or exchange thereof; that subsequently defendant and one Hawkins exchanged properties, and that Woolley was the procuring cause of such exchange.

An attentive examination of all the evidence before the referee has led us to a different conclusion as to so much of his findings as asserts that Woolley was the procuring cause of the exchange, the reasons for which we shall briefly assign. The importance which should be attached to certain evidence which we are soon to allude to, will be more readily appreciated if the situation of the parties, at the time of making the contract which plaintiff asserts, be presented. The defendant was an extensive dealer in real estate and accustomed to receive calls from brokers such as the plaintiff’s assignor to the number of twenty-five or thirty a day.

To these brokers he would give type-written descriptions of such properties as he was offering for sale or exchange, and if such a result as to any of the properties described should be brought about through the efforts of any one of the brokers, then that broker was paid a commission.

About two months before the exchange of the properties, Woolley for the first time called on the defendant, gave him his card, said he had understood that defendant had advertised several properties to exchange, and asked if he was willing to pay brokerage for exchange. Defendant replied that he was, at the same time handing him, as he did the other brokers calling upon him the same day, type-written descriptions of a number of properties, including those which defendant subsequently exchanged with Hawkins.

There remained then for the plaintiff to prove, in order to establish his cause of action, that he was the procuring cause of the exchange.

Fortunately for the defendant this cannot be inferred from the fact that there was an exchange, for if it could be it would open the door for a recovery by each one of the twenty-five or thirty brokers who was that day given a description of the property, accompanied by a promise that if either a sale or exchange should be brought about by him, a commission would be paid for his services.

Upon the contested question whether Woolley was the procuring cause of the exchange, the plaintiff offered no evidence except the testimony of Woolley. He testified that he received from the defendant a description of the properties which lie had for exchange September 23, 1889 ; on September twenty-fifth he offered defendant’s properties to Hawkins for exchange; three days later hecalled upon the defendant and gave him a diagram of the Hawkins property ; about a month afterwards he took Hawkins to defendant’s office at Hawkins’ request; defendant not being in they left without seeing him; October twenty-eighth he called on defendant, who informed him that Hawkins had been in but nothing had been done, and then defendant gave him a description of a second mortgage for $50,000 to show Hawkins, which he did. Woolley did nothing else towards bringing about the exchange made or any other exchange, unless his watchfulness of the announcements of sales and exchanges in a publication known as the Real Estate Record, for the purpose of ascertaining whether defendant and Hawkins had made an exchange, and his several inquiries of defendant, may be regarded as efforts in' that direction.

Standing alone this evidence might be said to warrant the inference that Woolley was the procuring cause of the exchange, but it does not stand alone; on the contrary, it is opposed and completely overborne by the circumstances proved and the oral testimony adduced. One of the significant facts may be alluded to in this connection; sometime before the exchange was made, defendant made a contract with one G. E. Malcolm, by which it was agreed that if Malcolm should effectuate an exchange of this property his compensation should be $500; this contract was in writing, and after the exchange was made the defendant paid Malcolm $500, as provided by it.

This fact stands undisputed and tends strongly to convince the mind that before Woolley had demanded his commission, or this suit had been brought, the defendant had no doubt that it was Malcolm and not Woolley who had brought about this exchange.

A short interview of the oral testimony will readily cause it to appear why it was that defendant was so confident that Malcolm had brought about the exchange as to induce him to pay him for doing it. Several months prior to the exchange, Chas. E. Malcolm, a real estate broker, and who like many others had defendant’s list of properties, inquired of Albert Robinson, another real estate broker, whether he knew of any property which could be exchanged for that of defendant.

Robinson was an acquaintance of Hawkins and at that time had his property for sale or exchange; thereupon Robinson brought Hawkins to see Malcolm^ who proposed an exchange of defendant’s real estate, but the proposition did not prove satisfactory, as Hawkins desired to make an exchange which should yield him some ready money, of which he was then in need.

Malcolm went to the defendant and told him the result of his interview with Hawkins, who suggested that he had a $50,000 mortgage which might form a part of the exchange. This proposition was in turn communicated to Hawkins by Malcolm, who thought favorably of it in case he could induce a creditor named Blackford to take the mortgage.

This he was successful in doing, and after considerable time spent in negotiations, and on September tenth, Malcolm testifies that he took Hawkins to defendant and introduced them. On this occasion there were present Hawkins and the defendant, Hawkins’ broker, Albert Robinson, and defendant’s broker, Malcolm; the negotiations lasted something like four hours, and finally resulted in an agreement to exchange, which was reduced to writing and duly executed.

This in brief is the story which is told by Robinson, Malcolm and the defendant. It is contradicted by no one, except in so far as "Woolley’s statement to the effect that he went with Hawkins to introduce him to the defendant when defendant was notin, and that defendant told him subsequently that he had seen Hawkins but nothing had been arranged, may be said to contradict it.

And it has support in the circumstances proved, to one of which we have alluded.

Further discussion of the evidence seems unnecessary. ■

The judgment should be reversed and a new trial granted before another referee to be appointed on order to be entered, with costs to the appellant to abide the event.

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

Judgment reversed and new trial granted before another referee to be appointed on order to be entered, with costs to the appellant to abide the event.


text:
    The People of the State of New York, Respondent, v. Sarah C. Leland, Appellant.

      Evidence improperly admitted, calling for a reversal of a judgment of conviction.

    It is an error which calls for the reversal of a judgment of conviction rendered upon the trial of a person under an indictment for larceny (where the articles alleged to have been wrongfully appropriated by the defendant were claimed by her to have been purchased out of the funds of a partnership existing between her and the complainant), to allow the People to put in evidence, over the objection of the defendant, the judgment roll in an action brought by the defendant against the complainant for the purpose of an accounting and of dissolving the partnership, which judgment decided that there never had been a partnership between the complainant and the defendant.
    . Appeal by the defendant, Sarah C. Leland, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, rendered on the 30th day of January, 1893, upon the verdict of a jury convicting the defendant of the crime of grand larceny in the second degree.

      Howe da Hwmnell, for the appellant.

      Belcmcey Nieoll and Henry B. B. Stapler, for the respondent.
   Parker, J.:

The defendant was convicted of larceny tinder section 528 of the Penal Code, which provides that:

“ A person who, with the intent to deprive or defraud the true owner of his, property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, -x- -x- -x-
“ Having in his possession, custody or control as a bailee, servant, attorney, agent, clerk, trustee or officer of any person, association or corporation, or as a public officer, or as a person authorized by agreement, or by competent authority, to hold or take such possession, custody or control, any money, property, evidence of debt or contract, article of value of any nature or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof:
“ Steals such property and is guilty of larceny.”

The evidence presented by the People tended to establish that the defendant, while an employee of the complainant, acting under her authorization, and with her money purchased diamond earrings and a diamond crescent pin, which she delivered to complainant in 1885 or 1886, who took and retained them continuously in her possession until February 14, 1888. On that day complainant fell on the ice breaking her thigh. Defendant assisted in undressing her and took the diamonds from her person and carried them away.

Subsequently complainant spoke to the defendant about them, who said she had them, and had taken them for safe-keeping, in which arrangement the complainant at the time acquiesced.

Thereafter defendant had made a pair of imitation diamond earrings strongly resembling the genuine ones, and when complainant demanded the return of the jewels defendant sent to her the imitation earrings, promising to return the diamond pin later.

This she did not do, but retained it and the genuine diamond ■earrings in her possession.

Defendant’s contention was that she was not an employee of the ■complainant when the diamonds were purchased, but her partner in the conduct of a real estate and insurance business, and also in keeping a boarding house, which relation, she says, existed between them from about December, 1884, until October, 1888; that the diamonds were paid for partly with the partnership funds, partly with her own money, and partly with moneys of complainant; that they were purchased in defendant’s name, the receipts being made out to, and the negotiations as well as the t payments solely made by her. The issue most strongly contested during the three days’ trial was, whether there was a partnership from which was derived in part the money which paid for the diamonds.

During the time which elapsed between the alleged theft of the diamonds and the trial of the defendant now the subject of review, a civil action, instituted by this defendant for the avowed purpose of bringing about a dissolution of the partnership, and for an accounting, was tried at a Special Term, Mr. Justice Barrett presiding, resulting in a judgment adjudging that there never was a partnership between complainant and defendant.

This judgment the prosecuting officer offered in evidence, and against the defendant’s objection and exception the court received it. Thus was presented to the jury the opinion and judgment of this learned judge upon the very question -which they were invited to pass upon, without their having the benefit of knowing upon what evidence his conclusion was founded. This may not be done in a criminal case. (Reg. v. Moreau, 11 Q. B. 1028 ; Starkie on Evidence [10th ed.], § 331; Freeman on Judgments [4th ed.], § 319a, p. 575.)

Indeed, the learned counsel for the People does not contend that it was proper evidence on the part of the People, for the purpose of making out the charge alleged in the indictment, but he attempts, to justify its admission in evidence on the ground that the defendant’s counsel opened the door for its introduction by an inquiry of the complainant on cross-examination, whether defendant had not instituted such a suit in October, 1888.

The promptness with which the prosecuting officer followed up the inquiry of defendant’s counsel, by introducing the judgment roll and questioning complainant touching the result of the suit, quite strongly suggests that he was becoming-impatient over the delay of defendant’s counsel in opening the door, and was thus led to accept the first movement in that direction as sncli an opening. Assuming for the present that the inquiry had for its purpose the strengthening of defendant’s position before the jury in respect to the alleged partnership, its utmost effect was to show that then, as now, defendant claimed the existence of the partnership.

So far as the inquiry went it nowhere suggested or permitted an inference that there had or would result therefrom a determination favorable to the defendant.

Evidence that she claimed to be a partner in October, 1888, whether shown by testimony that she then commenced a suit to dissolve the partnership, or otherwise, did not justify the People in attempting to introduce, nor furnish any legal basis for the introduction of, a judgment found and opinion expressed by a judge of such well-understood learning and experience that it could not have had other than an almost controlling weight with the jury in passing upon the question which it was defendant’s right to have them decide upon the evidence presented at the trial.

Respondent urges that the charge of the court prevented it from doing the defendant harm, but we do not so read it. There was but one way open to the court for the correction of the error at that stage of the trial, and that was by an instruction to the jury that they wholly disregard the decision in the civil action. This it did not do.

On the contrary, the effect of the charge was to permit, if not require, them to regard it.

The court said : “ There was a previous claim asserted upon the part of. this defendant, that. she ivas a partner of this complainant. The result of that action was that the defendant was beaten therein, but that does not at all preclude you from passing upon the question as to whether or not a partnership existed. You are not, in other words, precluded here by that adjudication.” But the assumption so far indulged in, that the purpose of the defendant’s counsel was to prove an assertion of the claim of partnership in October, 1888, is not, we think, justified by the record.

"We quote the questions and answers immediately preceding the proof offered by the People to show how the suit terminated.

“ Q. Now, let us get the dates of these suits she brought. Mrs. Leland brought a suit for a dissolution of the partnership when, in wliat year ? A. 1888. Q. What month ? A. I think it was October. It was not tried, but I think it was October the action was commenced. Q. You have not any doubt about that, have you, that it was in October, 1888, the papers show it? A. Very little;. I think it was in October, but I did not. look over it. Q. To the best of your recollection she brought a suit for a dissolution of the copartnership in October, 1888 ? A. Yes, sir. Q. You say the detention of this property, or larceny of this property — I use the word of the indictment — took place on the 14th of February, 1888, and you commenced a suit to restrain her from using your name in business when? A. I cannot tell exactly. Q. Wasn’t it in the month of December, 1888 ? A. Probably. Q. And when did you have her arrested for this larceny ? A. In February, I think. Q. February of what year ? A. 1888; no, wait a moment ■— in March, I think, 1889, a year after. Q. You had her arrested for this larceny a year after ? A. Yes, sir.”

The purpose of the questions appears to have been to get before the jury the fact that it was long after the defendant refused to give up the diamonds, which was September 22,1888, some months after defendant had in the immediate neighborhood commenced the same business as that conducted by the complainant, and still longer after defendant commenced a suit against complainant, that she first took the necessary steps towards bringing about a criminal prosecution of the defendant. And it was expected doubtless that the jury might infer that this prosecution was instituted either for the purpose of revenge or to bring about a favorable settlement of the other controversies. But had the evidence been offered for the purpose of showing that defendant in October, 1888, asserted claim of partnership, it would not have justified, as we have already observed, the introduction in evidence of the decision subsequently made.

The error is of such a substantial character that it calls for a reversal of the judgment and the ordering a new trial.

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

Judgment reversed and new trial ordered.


text:
    David M. Koehler, Appellant, v. Joseph Hughes, Respondent.

      Tax sale — remedy of one redeeming property from the lien of — statement that a case contains all the evidence — review by the General Term of questions of faet.

    A claimant of an undivided interest in certain real estate, which he is not proved to own, who voluntarily redeems the entire property from a tax sale, is without redress against the co-tenants.
    The statement that a case contains all the testimony is not equivalent to a statement that the case contains all the evidence, and in the absence of the latter statement the General Term is precluded from reviewing the questions of fact.
    Appeal by the plaintiff, David M. Koehler, from a judgment of the Supreme Court in favor of the defendant, rendered upon a decision of the court after a trial at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 30th day of June, 1893, dismissing the plaintiff’s complaint upon the merits and for costs.

      David McOlure, for the appellant.

      Edward W. B. Johnston,. for the respondent.
   Parker, J.:

This suit has for its object the subrogation of the plaintiff to the rights acquired by a purchaser at a tax sale of certain real estate alleged to have been held by Henry and Joseph Hughes as tenants in common.

Plaintiff, claiming an undivided interest in the premises, either as grantee or mortgagee of Henry Hughes, redeemed them after sale.

The defendant Joseph Hughes refused to repay to the plaintiff any portion of the money thus paid out by him, and the plaintiff thereupon asserted the right to be subrogated as to the rights of the-purchaser at the tax sale, and to have the lien enforced for his. benefit.

If plaintiff’s contention as to his ownership of an undivided interest in the premises were established by the record, the question would be presented, whether the payment by the plaintiff, in order-to redeem the property, was a voluntary payment.

Were it a voluntary payment plaintiff would, of course, be without redress. That question could only be answered by an examination of the provisions of the Consolidation Act, in order to ascertain whether they authorize the owner of an undivided interest to redeem by paying such a proportion of the taxes as his interest bears to the ■entire estate. But respondent makes the point that we cannot reach that question, because the trial court refused to find, and the record prevents us from determining, that plaintiff has or ever had an interest in the property.

An examination of the findings does not disclose any to the effect that the plaintiff had or has an interest in the property as grantee, mortgagee or otherwise.

Plaintiff requested findings of fact which, if found, would have established that he had an interest in the premises which he would be. entitled to protect; but every one of such proposed findings were refused.

The learned trial judge explains his refusal to find in the closing paragraph of his opinion, but the explanation does not help the situ.ation at all, as the findings and refusals to find must stand unless we ■can determine that he erred in such respect.

In attempting the consideration of that question we are confronted with the objection that the record does not contain a statement That the case contains all the evidence adduced on the trial.”

At folio 165 there is a statement by the attorney for the appellant, “That this case contains all the testvmony adduced at the trial.”

Under the decisions in Hyman v. Friedman (45 N. Y. St. Repr. 636), and Upington v. Pooler (47 id. 30-40), the statement that a case contains all the testimony is not an equivalent of the statement that the case contains all the evidence.

That being so, the General Term is precluded from reviewing the questions of fact. (Aldridge v. Aldridge, 120 N. Y. 614-616.)

Hence there is no question for decision. The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Oliver W. Barnes, Respondent, v. Francis C. O’Reilly and Another. Appellants.
    ¿1 document should he contained in the “ case" if the appellate court is asked to determine that its rejection teas error — evidence, improperly rejected.

    When an appellate court is asked to determine whether the rejection of a document offered in evidence was error, the instrument rejected, or a sufficient statement of its contents, should be contained in the record to enable the court to decide the question.
    Upon the trial of an action brought for the recovery of the amount alleged to be due on a certain agreement made between the plaintiff and the defendants, the agreement recited that the plaintiff and defendants had entered into a contract to construct a portion of a railroad, and that the interests of the parties therein were to be share and share alike, each entitled to and responsible for a one-third interest in said contract. It was further agreed thereby, in consideration of the plaintiff’s having procured the contract, and allowed the defendants to share with him in the same, that the defendants should pay to him §10,000, §1,000 of which had theretofore been paid.
    The answer admitted the execution of the contract, and that the sum of $9,000 had not been paid thereon, and alleged that before the execution of the agreement it had been orally agreed between the litigants that the interests of the parties were to be share and share alike, each to receive one-third of the profits and to be responsible for one-third of the losses; that the defendants were to pay the plaintiff for his work in procuring such contract the sum of §10,000 out of the profits derived from said contract before any division was made; that by a mutual mistake the agreement failed to contain a clause providing that the sum of §10,000 to be paid to the plaintiff should be paid out of the profits, and that the sum of §1,000 theretofore paid should be deemed a payment on account of profits; that no profits were earned by the construction of the railroad, but that a loss of §39,473.51 was sustained, for one-third of which the plaintiff was liable.
    It was also alleged by the answer, and found by the referee, that the firm was dissolved by an instrument in writing, signed by the three partners. The answer demanded, among other relief, that the contract be reformed to correspond with the agreement entered into.

      Held, that proof of the allegations contained in the answer was admissible, and that its rejection was improper.
    Appeal by the defendants, Erancis C. O’Reilly and Joseph IT. Crawford, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 5th day of July, 1893, upon the report of a referee.

      Dw'nvn <& Ilendriolc, for the appellants.

      Blair (& PheVps, for the respondent.
   Follett, J.:

This action is for the recovery of $9,000, with interest thereon from February 16, 1887, which is claimed to be due pursuant to the following contract:

“ This memorandum or agreement, entered into this 16th day of February, A. D. 1887,
"Witnesseth:
That, whereas, the parties of the first and second parts hereto, have entered into a contract to construct fifty miles of the Duluth, South Shore & Atlantic Railroad, it being agreed and understood that the interests of the said parties hereto shall be share and share alike; that is, each shall be entitled to and be responsible for a one-third interest in said contract, the party of the first part hereunto being Oliver W. Barnes, and the party of the second part, Francis C. O’Reilly and Joseph U. Crawford.
“ It is agreed and understood by and between the parties hereto, that, in consideration of the said party of the first part having procured said contract and allowing said parties of the second part to share with him in the same, as herein stated, the said parties of the second part hereby agree to pay to the said party of the first part the sum of ten thousand dollars ($10,000), one thousand dollars of which has heretofore been paid on the 27th day of January, 1887, and,
“ It is hereby further agreed and understood, that the said parties of the second part assume to furnish all the capital that is necessary for the prosecution of the work, and to carry on the same to completion, in accordance with the original contract made on the 27th day of January, 1887, and they further agree that they shall give their personal attention to the construction and completion of said work in accordance with said contract, and,
“ It is further agreed and understood, that the said party of the first part shall not be required to furnish either capital or personal attention in the management, construction or completion of said work as provided for in said contract, further than that he will hold himself ready from time to time to give the firm the benefit of his professional knowledge and counsel in the management of said work as may be desired. B
“ It is further agreed and understood, that the said work shall be commenced forthwith, and prosecuted diligently to completion, in compliance with the terms of the contract for the same, and to the best advantage to the parties of the first and second parts.
“ It is further agreed and understood, that the said work shall be prosecuted and the business carried on under the firm name of F. O. O’Reilly & Co.
“ It is further agreed and understood, that the said F. O. O’Reilly is hereby designated to take charge of the financial business associated with the construction of said work, and that the firm shall have a clerk to keep proper books of account of the business of said firm.
In witness whereof we have hereunto subscribed our names and affixed our seals, at New York, this 16th day of February, A. D-1887.
“ OLIVER W. BARNES, [l. s.]
“F. O. O’REILLY, [l. s.]
“ JOSEPH H. CRAWFORD, [l. s.] ”

The defendants by their answer admitted the execution of the contract, and that the sum of $9,000 had not been paid, and alleged that before the execution of the contract it was orally agreed between the litigants That the interests of the said pai’ties were to' be share and share alike, i. e., the plaintiff and the defendants were each to receive one-third (-J-) of the profits and to be responsible for one-third (-J-) of the losses.

That the defendants were to pay the plaintiff for his work in. procuring said contract the sum of ten thousand dollars, and that said sum was to be paid out of the profits derived from said contract before any division was made.”

It is also alleged that By a mistake mutual on the part of both of the parties thereto the said agreement failed to contain a clause providing that the sum of ten thousand dollars to be paid to the plaintiff for having procured said contract should be paid out of the profits derived therefrom, and that the sum of one thousand dollars theretofore paid should be deemed a payment on account of said profits.”

Tlie defendants alleged that no profits were earned by the construction of the railroad, but that the firm sustained a loss of $39,473.51, for one-third of which the plaintiff was liable. It was .also alleged in the answer, and found by the referee,'that on June 30, ■1888, the firm was dissolved by an instrument in writing signed by the three partners.

• The defendants demand, among other relief, that the contract be reformed to correspond with the agreement entered into. On the trial the defendants offered to prove the allegations contained in their answer, but the evidence was rejected under the objection of the counsel for the plaintiff. This was error.

It is also urged that the referee erred in rejecting the contract of-January 27, 1887, referred to in the contract of February 16, 1887, ■on which the action was brought. The rejected contract is not contained in the record, and it may have appeared to be irrelevant on its face. "When the appellate court is asked to determine whether the rejection of a document offered in evidence was error, the instrument rejected, or a sufficient statement of its contents, should be contained in the record to enable the court to decide the question. Many of the important dates in the record are clearly erroneous and so confusing that we might well refuse to decide this case and send it back for resettlement, but the error committed is •so patent that we have concluded to decide the appeal on the present record.

The judgment should be reversed and a new trial ordered before another referee to be appointed on settlement of order herein, with •costs to the appellant to abide the event.

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

Judgment reversed and new trial ordered before another referee to be appointed on settlement of order herein, with costs to the appellant to abide the event.


text:
    Thomas Sheffield, Respondent, v. Frederick Robinson and Others, Defendants, Edward Early, Appellant, Impleaded with Others.

      Foreclosure of a mechanic’s lien when a lond has leen giren — form of the action — * proper parties — lis pendens.

    The condition of a bond given pursuant to subdivision 6 of section 24 of chapter 342 of the Laws of 1885, renders the foreclosure of the lien and the recovery of a judgment against the property necessary before resort can be had to the bond.
    In such an action all persons should be made parties defendant who would be proper parties to an action for the foreclosure of the lien in case a bond had not been given.
    In such an action the object of the lis pendens is to give notice of the pendency of the action to all persons who may subsequently acquire, or seek to acquire, rights in the property, but it is not required for the protection of the parties to-the action, and an omission to file the same, where a bond has been given con-, ditioned for the payment of any judgment which may be recovered, is not a defense to the action.
    Appeal by the defendant, Edward Early, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 3d day of August, 1893, upon the report of a referee.
    The action was brought for the foreclosure of a mechanic’s lien on premises owned by John J. Astor, at the southwest corner of Thirteenth street and Tenth avenue, which were leased by him for twenty years from May 1, 1888, to Edward Early, who entered into possession thereof.
    In August, 1888, Early entered into a written contract with Frederick Robinson, whereby the latter agreed to erect a building on the premises for $37,000. Subsequently, Thomas R. Sheffield entered into an oral contract with Robinson to furnish material for and to do certain work on the building, which was afterwards furnished and performed, and which the referee found to be of the value of $3,518.85, of which sum $1,500 was paid.
    February 27, 1889, Sheffield duly filed a mechanic’s lien against the property for the amount unpaid, a copy of which was on the same day served on Early. On the 16th of March, 1889, Frederick Robinson entered into a bond pursuant to subdivision 6 of section 24. ■of chapter 342 of the Laws of 1885, the Mechanics’ Lien Law, “ conditioned for the payment of any judgment which may be rendered against the property,” upon which an order was duly made and entered discharging the property from the lien filed as aforesaid. The lien not having been paid, this action was begun May 7, 1889, to foreclose the lien. It was alleged in the complaint that more than $3,500 was due from Early to Robinson on the building contract. Two of the defendants, Early and one Edward Tracy, appeared and answered, the other defendants making default. The referee found that when the lien was filed Early was indebted to Robinson in the sum of at least $2,000 on the contract, which Early paid to Robinson subsequent to the filing of the lien, and that he .subsequently paid Robinson upwards of $6,000 for work done and materials furnished, and also found all the issues of fact in favor of the plaintiff, and a judgment was entered adjudging that the amount due on the lien was $2,621.61, together with $406.78, costs, and directing that the property against which the lien was filed be sold, and that the plaintiff be paid the amount of the judgment. The judgment contains the following provision: “ It is further ordered and adjudged that so much of this judgment as directs a sale of the right, title and interest of the defendant Early in the lands and premises and the buildings is in form only, and that the plaintiff have liberty to proceed according to law with the judgment herein for the above-named sum of $3,028.39, .damages and costs, and interest from the date of this judgment against Frederick Robinson, as principal, and Nicholas Murray and Mary Robinson, the sureties upon the bond given upon the discharge of plaintiff’s lien.”

      Thomas G. Erm&o&>\ for the appellant.

      Ma/rtim, E. Ilcdpvn, for the respondent.
   Follett, J.:

The appellant asks for a reversal of the judgment on three grounds : (1) That he is neither a necessary nor proper party defendant ; (2) that a notice of Us pendens not having been filed within one year after the filing of the lien, the action cannot be maintained; (3) that the judgment entered in form against the property is illegal because the principal contractor, who was the debtor, has given a bond and obtained an order discharging the lien, pursuant to the 6th subdivision of section 24 of the Mechanics’ Lien Law.

The condition of the bond given is “ for the payment of any judgment which may be rendered against the property,” which renders the foreclosure of the lien and a recovery of a judgment against the property necessary before resort can be had to the bond, and in such an action all persons should be made parties defendant who would be proper parties to an action for the foreclosure of a lien in case a bond had not been given.

The object of a lis pendens is to give notice of the pendency of the action to persons who may subsequently acquire or seek to acquire rights in the property, but it is not required for the protection of the parties to the action, for they have notice of its pendency and of the claim made by it. However, this question has been settled against the claim of the appellant in Ward v. Kilpatrick (85 N. Y. 413). In that case it was held, It is further said that the proceeding of the lienor was ineffectual, because he did not show affirmatively the filing of a notice of lis pendens within ninety days succeeding the filing of his claim. That provision under the statute has no application to a case where the lien upon the real estate is discharged by the deposit in court of the amount of the debt, as was done in this case. In that event the lien is shifted to the fund, the controversy ceases to affect the real estate or third persons, and lis pendens becomes unnecessary.” That case arose under chapter 379 of the Laws of 1875, the 8th section of which provided: “ No lien, provided for in this act, shall bind the property therein described for a longer period than ninety days after the claim has been filed, unless an action be commenced within that time to enforce the same, and a notice of the pendency of such action filed with the clerk of the county, and an entry of the fact of such notice made on the lien docket.” This provision is not essentially different from that contained in section 6 of chapter 342 of the Laws of 1885, except as to the time within which the action is to be commenced and the notice of its pendency filed. The omission to file the notice is not a defense to the action.

No error was committed in ordering a judgment of foreclosure in form to be entered against the property. As before stated, until this is done the claimant has no remedy on the bond.

The recovery of a judgment by a, claimant against the debtor for the amount of his claim would not entitle him to recover the debt from the obligors on the bond without the recovery of a judgment of foreclosure against the property. (People ex rel. Flynn v. Butler, 61 How. 274 ; Lawson v. Reilly, 13 N. Y. Civ. Proc. Rep. 290; Highton v. Dessau, 46 N. Y. St. Repr. 922; Scherrer v. Hopper, 45 id. 638.)

In the case last cited the General Term of the Common Pleas said : “ The claimant, in order to establish a lien upon the property, must show his right, as against all other claimants, to payment from the fund subject to the liens, viz., the moneys due from the owner" to the contractor; and must show that after the satisfaction of all such claims as are entitled to priority there is sufficient to satisfy his particular lien (Lien Act, § 1; Gibson v. Lenane, 94 N. Y. 183) and he must show the same facts 'and right in order to establish a lien upon the bond or deposit and a right of action against the sureties upon the bond.”

In so far as Buckley v. Moses (23 Civ. Proc. Rep. 28) and Heinlein v. Murphy (3 Misc. Rep. 47) are adverse to this view they are overruled.

The judgment in this action carefully protected the rights of the-owner and provided that it was in form only against his property, and it clearly constitutes no lien upon it.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Van Brunt, P. J.:

text:
    In the Matter of the Petition of John Looram, Respondent, for the Payment of a Claim against the Estate of Patrick J. Keenan, Deceased. Esther Keenan, as Administratrix, etc., Appellant.

      Judgment — presumption of payment from lapse of time — evidence as to the pecuniary circumstances of the parties.

    On the issue of payment of a judgment in suit a presumption of payment may be raised from a great lapse of time since the docketing of the judgment, although less than twenty years, and evidence that, during the time so elapsed, the judgment debtor was in good pecuniary circumstances and the judgment creditor in indigent circumstances is relevant to the question of such presumption of payment.
    Appeal by Esther Keenan, as administratrix, etc., of Patrick J. Keenan, deceased, from a decree of the Surrogate’s Court for the county of New York, entered in the office of the clerk of that court on the lltli day of July, 1893, and also from an order of said Surrogate’s Court, entered in said clerk’s office on the same day, deny-, ing an application for a rehearing.

      D. A. Sjpellisy, for the appellant.

      W, Stainton, for the respondent.
   Van Brunt, P. J.:

It appears that on the 16th of April, 1873, the petitioner, John Looram, obtained a judgment against Patrick J. Keenan, since deceased, in the Marine Court of the city of New York for $378.81, a transcript of which judgment was duly docketed and filed in the office of the clerk of the city and county of New York upon the same day and an execution issued thereon. The said Keenan having died in 1891, letters of administration were duly granted upon his estate to the appellant, Esther Keenan. The respondent having presented his petition for the payment of his claim to the Surrogate’s Court, and a citation having been issued by said court directing the administratrix to show cause why the claim should not be paid, tbe administratrix interposed an answer, and the Surrogate’s Court referred the question to a referee to take proofs with respect to the payment of the whole or any part of the judgment upon which the claim was based, and to report the same with all convenient speed, with his opinion thereon. The referee having reported that the claim liad not been paid, the Surrogate’s Court made an order confirming the report of the referee, and adopting his findings of fact and conclusions of law, and ordering and adjudging the administratrix to pay the respondent the amount of said claim. An application having been made for a rehearing, and denied, the administratrix appeals to this court.

The judgment in question, at the time of the death of Keenan, had been docketed for nearly twenty years; and it was attempted to be proved upon the part of the administratrix that during all this period of time the alleged judgment debtor had been in good circumstances and the judgment creditor had been in poor circumstances, as bearing upon the question of a presumption of payment. This evidence was excluded by the referee (which exclusion was duly excepited to) upon the ground that the court cannot indulge in such presumption, relying upon the case of Daby v. Ericsson (45 N. Y. 786) as an authority for this proposition. This case undoubtedly seems to sustain the ruling of the referee. But later eases have established a different rule; notably that of Bean v. Tonnele (94 N. Y. 381). In that case the court say:

“The presumption of payment from a great lapse of time is founded upon the rational ground that a person naturally desires to possess and enjoy his own, and that an unexplained neglect to enforce an alleged right for a long period casts suspicion upon the existence of the right itself. This presumption may be fortified or rebutted by circumstances; the fact that a plaintiff during the period when he might have enforced his demand by suit, if he had one, was in indigent circumstances and needed the use of his means, is, we think, a circumstance tending to fortify the presumption that the demand has been paid or otherwise satisfied.”

This principle, laid down in the case cited, has been approved in several later cases, and seems to be the one now prevailing in this State. It was, therefore, error to reject the evidence, and to refuse to consider the presumption.

The decree should be reversed and the proceedings remitted to the Surrogate’s Oourt for a new trial, with costs to the appellant to abide the event.

O’Brien, J., concurred.

Decree reversed and the proceedings remitted to the Surrogate’s Oourt for a new trial, with costs to the appellant to abide the event.


author: Yan Brunt, P. J.: O’Brien, J.:

text:
    Joseph A. Young, Respondent, v. Elbert Fowler, Appellant, Impleaded with Another.

      Publication of a summons— attachment on the ground of nonresidence— the affidavit — vacation of an attachment, for laches.

    Although the provisions of the Code of Civil Procedure are open to the construction of requiring seven instead of six publications to make a complete service of summons by publication, the language of the statute is not so imperative as to warrant the court in adopting such a construction, in view of the fact that a different practice has prevailed for so long a time.
    The allegation in an affidavit for an order of publication of a summons, that the plaintiff had obtained an attachment in the action on the ground of the defendant’s being a non-resident, is not a sufficient allegation of non-residence to confer jurisdiction upon the court to order service by publication on that ground. The neglect of the plaintiff to perfect judgment within a reasonable time after the issuance of an attachment, furnishes a ground for vacating the attachment.
    Appeal by the defendant, Elbert Fowler, from an order of the Supreme Oourt, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 19th day of September, 1893, denying the defendant’s motion to vacate a warrant of attachment.
    The contention of the appellant, referred to in the opinion, that it is necessary to publish a summons at least seven times in six weeks, instead of once a week for six successive weeks, was based upon section MO of the Code of Civil Procedure, which provides for a publication in two papers of not less than once a week for six successive weeks ; section Ml, which provides that service shall be complete “ upon the clay of the last publication y ” section 787, which provides that the time must be computed so as to exclude the first day of publication and include the last day; and upon the case of Ma/rJcet National BamJc v. Pacific National Bcunlc (89 N. Y. 391).

      1. N. Miller, for the appellant.

      B. Scha/rjp, for the respondent.
   Yan Brunt, P. J.:

The attachment in this action having been granted in September, 1889, on the 29th of August, 1893, a motion was made to vacate the same upon the ground that the defendant had never been served in the action, and the court had never obtained jurisdiction of the defendant, and upon other grounds which it is not necessary to mention here. This motion having been denied, from the order thereupon entered this appeal is taken.

It is claimed that the court never acquired jurisdiction, because there were but six publications of the summons, whereas, under the Code as it now exists, seven publications are necessary in order to make complete service; and further, because the affidavit on which the order of publication was granted was insufficient.

In respect to the first ground, the construction claimed by the defendant might very well be adopted ; but, in view of the fact that a different practice has prevailed under this provision of the Code for so long a time, this court should not adopt such a construction unless compelled to do so by the imperative language of the statute, and this hardly seems to be the case.

The point that the affidavit upon which the order of publication was granted was insufficient to confer jurisdiction seems to us to be well taken. The order of publication was based upon the supposed, fact that the defendant was a non-resident, and that, therefore, the plaintiff had the right to publish the summons as against him. But there was no allegation whatever in the affidavit upon which the order of publication was granted that the defendant was a nonresident. The allegation contained in the affidavit is as follows :

“ Deponent further says that upon a summons, verified complaint and affidavit he obtained on the 6th day of September, 1889, a warrant of attachment against the above-named defendant, Elbert Fowler, on the ground of his being a non-resident of the State of New York, to wit, a resident of tlie State of New Jersey, at Passaic in said State.”

But it did not appear before the court wliat the papers were upon which the attachment was granted, or whether there was any sufficient proof in these papers that tlie defendant was a non-resident. And in the affidavit upon which the order of publication was granted, there is a mere recital of something that had taken place in the action, and no averment whatever in regard to the non-residence of the defendant. This clearly was insufficient to confer any jurisdiction upon the court.

The additional allegation that the defendant is of full age and cannot be found with due diligence within this State, and that the plaintiff would be unable with due diligence to make personal service of the summons upon said defendant iwithin this State, did not in any manner supply the defect above mentioned, because this was clearly insufficient to warrant publication unless such absence from the State was with the intent to defraud creditors or to avoid the service of the summons, and there is no pretense in the papers that such was the fact.

It would seem, therefore, that there was no proof whatever by affidavit of tlie existence of facts justifying tlie making of the order of publication at the time of the granting of such order.

The order appealed from should be reversed, with ten dollars costs and disbursements and the motion granted, with ten dollars costs.

O’Brien, J.:

Unreasonable neglect to proceed is a ground for dismissal of an action. (Code Civ. Proc. § 822.) This section is but expressive of the policy of the law that one should not be permitted to sleep on his rights. Here the attachment was issued in 1889, and since that time plaintiff has done nothing towards perfecting his judgment, though for more than four years he could have done so. This shows gross laches, and as plaintiff should not be allowed to tie up property indefinitely, I think upon this, as well as upon tlie ground assigned by the presiding justice, tlie attachment should be vacated.

Order reversed, with ten dollars costs and disbursements and the motion granted, with ten dollars costs.