text:
    Cleveland, Lorain and Wheeling Railway Company, Appellant, v. Sheldon L. Kent and Another, Respondents, Impleaded with Others.

      Action to enforce the liability under the Ohio statute of stockholders of an insolvent Ohio corporation — not maintainable in the courts of Nino York.

    An action to enforce tlie statutory liability of the stockholders of an insolvent Ohio corporation cannot be maintained in the courts of the State of New York, for the reason that the Ohio statute’provides a special remedy, which is exclusive of all other remedies, and can only be administered in Ohio.
    The rights of creditors of a corporation against the incorporators rest upon the statute, and where an obligation or liability is imposed and a remedy is given, these should be held to be inseparable, and creditors should be required to coniine their remedy to the one prescribed by the statute.
    Where the remedy is of such a character that it can only be effectually enforced in one forum, a party interested in its enforcement should not be permitted to enforce it in another place.
    Statutes relating to procedure have no extra-territorial effect.
    The courts of the State of New York can and will assume jurisdiction, in an action at law, to enforce a statutory liability for a right given by an Ohio statute to an individual creditor against an individual stockholder; but where an action in equity is necessary, and where what is sought is an accounting between creditors and stockholders to enforce a remedy given by the Ohio statute, in which suit it is necessary to have a marshalling of assets and an accounting between creditors and stockholders, and a determination of the amount of liability of each individual stockholder, such suit, in the absence of the corporation itself and in the absence of all those interested in the accounting, notably creditors over whom it is not shown that the court can acquire jurisdiction, cannot be maintained in the State of New York.
    The courts of the State of New York will not in all cases entertain an action, even though they have jurisdiction.
    Appeal by the plaintiff, the Cleveland, Lorain and Wheeling Railway Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, dated the 6th day of May, 1895, and entered in the office of the cleric of the county of New York, sustaining the demurrer of the defendants, Sheldon L. Kent and another, to the complaint and dismissing the complaint as against the said defendants.

      Hush Taggart, for the appellant.

      George Zabriskie, for the respondents.
   O’Brien, J.:

This suit is brought for the purpose of charging the respondents and some of the other defendants with jiersonal liability for the debts of the Brock I-Iill Coal Company, a foreign corporation organized under the laws of Ohio. It does not appear that any of the other defendants have been served with process or have appeared in the action. The complaint alleges that the plaintiff, as well as the coal company, is a corporation organized under the laws of the State of Ohio, in which State the latter company has its chief office and place of business and was engaged in the operation of coal mines, with a capital stock of $200,000, owned by the respondents and two others; that the other defendants named, twenty-seven in number, claim to be creditors of the coal company; that the coal company is indebted to the plaintiff in the sum of $11,419.95 ; that in legal proceedings in the State of Ohio a receiver of the coal company’s property was appointed, and the court administered on all its assets and sold and disposed of the same and applied the proceeds to the payment of the company’s obligations, and that there still remain obligations of the company to the plaintiff and to the creditors defendant wholly due and unpaid. It is further alleged that, by the statutes of Ohio, the stockholders of the coal company are each liable, in addition to their stock, to an amount equal to the stock by them subscribed, or otherwise acquired, to the creditors of the corporation to secure payment of the debts and liabilities of the said corporation; ” “ that such individual liability of stockholders may be enforced by any stockholder or creditor by action jointly against all holders or owners of stock, which action shall be for the benefit of all the creditors of the corporation and against all persons liable as stockholders.” The sections of the statutes of Ohio governing this class of actions are annexed to the complaint as an exhibit, and section 3260 thereof provides: “ A stockholder or creditor may enforce such liability by action jointly against all the holders or owners of stock, which action shall be for the benefit of all the creditors of the corporation and against all persons liable as stockholders,'and in such action there shall be found and determined the amount payable by each person liable as stockholder on all the indebtedness of the corporation, in which adjudication no costs shall be taxed to nor collected of any stockholder to an amount which, together with the amount to be paid on said indebtedness, will exceed the amount of the stock on which he is liable.” The prayer of the complaint is that the defendant creditors may be required to set forth and prove the amount of their respective claims against the coal company; that the court will proceed to ascertain and determine the amount of stock held by the defendant stockholders, and that after the determination of the amount of stock held by such defendant stockholders and the amount of debts owing by the coal company to the plaintiff and the defendant creditors, the court determine the amount of assessment upon the said stock that will be necessary to pay the costs of the proceeding and the debts, and that judgment be entered against the said stockholders respectively for the amount of assessment required for such purposes.

The demurrer was sustained in the court below upon the case of Barnes v. Wheaton, (80 Hun, 8), which is authority for the proposition that an action to enforce the statutory liability of the stockholders of an insolvent Ohio corporation cannot be maintained in the courts of this State, for the reason that the Ohio statute provided a special remedy, which is exclusive of all other remedies, and can only be administered in Ohio. We might well rest our decision, as did the court below, upon that authority, because not only is it well reasoned but it has support in principle. The rights of creditors of a corporation against the corporators rest upon the statute, and where an obligation or liability is imposed and a remedy is given, these should be held to be inseparable and creditors shorild be required to confine their remedy to the one prescribed by the statute. The distinction between statutes which, in imposing liabilities omit a remedy, and those which impose liability and fix the remedy, is lost sight of by the plaintiff, as will be seen by reference to the cases cited in support of the complaint, most, if not all, of which are instances where a statutory right was not coupled with a statutory remedy for its enforcement. Where, therefore, the remedy is of such a character that it can only have effectual operation in one forum, one interested should not be permitted to enforce it in any other place. Statutes relating to procedure have no extra-territorial effect. As will be seen from a reading of the Ohio statute quoted, there is a restriction in regard to costs, but such restriction could not be given effect in this State, because such subject would be controlled by our own law, and yet that restriction is an integral part of the statutory remedy.

It is urged with much force that the objections pointed out do not go to the jurisdiction of the court to entertain the action. It ia true that the cases are very exceptional in which the court has not jurisdiction where the parties have been brought before it by personal service and the subject is one upon which it is not forbidden to adjudicate upon. So here, as a clean-cut question of jurisdiction, it may be doubted whether it would be correct to declare that, as between the plaintiff who comes into this forum and certain of the defendants who are brought in by personal service, the court would not have jurisdiction. That our courts will not in all cases entertain an action, even though they have jurisdiction, has been many times held. (Cross v. U. S. Tr. Co., 33 N. Y. St. Repr. 149; affd., 131 N. Y. 330; Ferguson v. Neilson, 33 N. Y. St. Repr. 814.) It being, therefore, unnecessary to determine the question as to whether this court has. or has not jurisdiction, we are clear that upon the facts presented it should not assume it for reasons which, in addition to those already stated, may be briefly mentioned.

If this were an action at law to enforce a statutory liability for a right given by air Ohio statute to an individual creditor against an individual stockholder, then this court would have, and could assume, jurisdiction. Where, however, an action in equity is necessary, and where, as here, what is sought is an accounting between creditors and stockholders to enforce a remedy given by the Ohio statute, in which suit it is necessary to have a marshalling of assets and an accounting between creditors and stockholders and a determination of the amount of liability respectively of each individual stockholder, such a suit, in the absence of the corporation itself and in the absence of all those interested in the accounting, notably creditors, over whom it is not shown that the court can acquire jurisdiction, slioúld not be maintained in this State. In such a suit all the creditors and all the stockholders of the company should be parties ; but it is not alleged, nor can it be presumed, that any of the creditors or any of the stockholders are residents of this State and within the jurisdiction of the court. The courts of this State are not, therefore, in a position to take and state an account of all the company’s indebtedness, determine the liability of the several stockholders and compel the payment of each one’s quota into a common fund, and the distribution of it among all the creditors in proportion to their debts, so as to do justice and settle.once for all, in the manner contemplated by the Ohio statute, the whole liability of all the stockholders. Thus in this case, if our courts were to assume jurisdiction, let us suppose that some of the creditors, residents of Ohio, because unknown or through inadvertence, should be omitted as parties, clearly they would not be bound by any judgment rendered in this action. If to settle the liabilities of the company stockholders were held only to the extent of fifty per cent of their liability, would not the creditors in Ohio who were not parties have a right to proceed for the purpose of obtaining the other fifty per cent still due from the stockholders? Or, to take another illustration, if, by the judgment in this court, to satisfy the claims of creditors who appeared, the entire amount of the liability of each stockholder was required to be paid, what in such a case would be the situation of creditors in Ohio who were not parties and had no notice of the suit pending here, and who were not, therefore, bound by the judgment ? Would it be claimed, notwithstanding the payment of the full amount for which the stockholders were liable under the Ohio statute, that they were still answerable to tbe creditors there who were not bound by the judgment ? Or, on the other hand, would it be contended that such creditors, who were without notice of this suit and were not made j>arties, and who, therefore, were not bound by the judgment, are remediless and not entitled to share in the distribution of the assets of the corporation ?

There are some minor objections, such as the failure properly to designate the parties, a number of the defendants being described in the complaint either by corporate titles or else as partnerships. As to the corporations it is not stated whether they are domestic or foreign, and there is no presumption that they áre domestic. In respect to the partnerships, the names of the partners are not stated, and no sufficient description is given, either of the corporations or of the partners, by which they are properly brought into court.

Our conclusion, therefore, is that, apart from any question of whether, strictly viewed, the court has or has not jurisdiction, the objections to assuming it in a case like this are so many and serious that the court would not be justified in entertaining the suit, and upon this ground, in addition to the others stated in the case of Barnes v. Wheaton (supra), the judgment should he affirmed, with costs.

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

Judgment affirmed, with costs.


source: Caselaw Access Project

author: O’Brien, J.: Parker, L

license: Public Domain

text:
    Albert S. Moore, Plaintiff, v. John A. Potter, Individually and as Receiver of The American Lace Manufacturing Company, Defendant.

      Sale of merchandise lo a corporation — refusal of its receiver to accept it — sale thereof by the vendor on account of the receiver without lea/oe of the court, a contempt of court — action against the receiver to recover the deficiency, not maintainable.

    A receiver of a corporation refused to accept certain merchandise which the corporation had contracted to purchase, and the vendor sold such merchandise for the account of the receiver, crediting him with the amount of the sale, and, with the leave of the court, brought an action to charge the receiver with the difference between the contract price and the price for which such merchandise sold; prior to the sale the vendor was served with an order of the court restraining all persons from interfering with the receiver’s possession and control of the assets and property -of the corporation.

      Held, that the vendor could not, in violation of the terms of the injunction, proceed to advise the receiver that he would sell the merchandise on his account and sell the same without leave of the court, and thereby acquire a right as against the receiver;
    That in so proceeding he was guilty of a contempt of court, and he could not, therefore, secure the aid of the court to enable him to reap the fruits of his contempt.
    Parker, J., dissenting.
    Motion by tlie defendant, John A. Potter, individually and as receiver of the American Lace Manufacturing Company, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the New York Circuit on the 15th day of February, 1895.
    The American Lace Manufacturing Company was under a contract to purchase from one Albert S. Moore a quantity of cotton yarn at an agreed price. Subsequent to the execution of this contract and prior to the performance thereof a receiver of the corporation was appointed, who informed the vendor that he could not receive the yarn under tlie contract, whereupon the vendor advised the receiver that he would sell the yarn for his account and hold him responsible for any loss. Prior to the sale the vendor was served with a copy of the order appointing the receiver, which order contained the usual clause restraining all persons from interfering with the receiver’s possession and control of the assets and property of the corporation. Tlie vendor nevertheless sold the goods at public auction, and credited the receiver with the amount of the sale, and then, with the leave of the court, brought an action to recover the difference between the contract price of the yarn and the price for which it was actually sold.

      R. Burnham Moffat, for the plaintiff.

      Leopold Wallach, for the defendant.
   O’Brien, J.:

When the receiver refused to receive the yarn under the contract the plaintiff was at liberty to elect his remedy, which, it is conceded, lie did by regarding the property as tliat of the buyer and selling it for his account, crediting him with the amount of the sale and seeking in this action to charge him with the loss. It being the property, therefore, of the receiver, and the plaintiff having been served with the injunction prior to the sale, as the receiver was justified in doing, after having been notified-of the election made by the seller, the latter could not, in violation of the terms of such injunction, proceed without leave of the court, and thereby acquire rights as against such receiver. Having been guilty of a contempt of court in his procedure, lie cannot get the aid of the court to enable him to reap the fruits of liis contempt.

The exceptions should be sustained and a new trial granted, with costs to the defendant to abide the event.

Van Brunt, P. J., concurred.

Parker, L

(dissenting):

When the defendant Potter was appointed temporary receiver of the American Lace Manufacturing Company in proceedings had for a voluntary dissolution of the corporation, it was, and for some time prior had been, under contract to take from this plaintiff 10,100 pounds of cotton yarn at an agreed price of $2,020.

Three days after the appointment of the temporary receiver, in reply to a letter of inquiry from the plaintiff, the receiver responded that he could not receive the yarn under the contract.. Later, plaintiff advised the receiver that he would sell the yarn for his account, and hold him for any loss that might ensue. Prior to the .sale the plaintiff was served with a copy of the order appointing the temporary receiver, which order contained the usual clause restraining all persons from interfering with the receiver’s possession and control of the assets and property of the corporation.

The plaintiff, nevertheless, advertised the goods for sale in several different publications, and a sale was had at public auction. A number of competing bidders were present and made bids, the property being finally struck down to a Mr. Wliittemore, who had been sent to the sale by plaintiff for the purpose of buying the goods in.

The goods netted on the sale $1,211.10, leaving a deficit from the agreed price of $112.30. In due course the defendant Potter was appointed permanent receiver, and leave to bring an action against him in that capacity for the deficit was applied for and granted. The result of the trial was the direction of a verdict in favor of the plaintiff for the amount of the deficit, with interest, aggregating the. sum of $826.60.

The only questions on this appeal are presented by the requests of defendant’s counsel for the direction of a verdict “ on the ground that this plaintiff was without any power, without the consent of the court, to sell this property; that the plaintiff had no power.' Also, on the further ground that it appears the sale by Woodrow & Lewis was a collusive sale.” As to the latter ground it may be dismissed with the remark that the evidence was not only insufficient to warrant the direction of a verdict in favor of the defendant, on the ground that the sale was collusive, but there was no evidence entitling defendant to go to the jury on that question.

From the defendant’s argument on this appeal it is apparent that by the other ground of his motion he intended to insist that the titje to the yarn sold was in the receiver of the American Lace-Manufacturing Company, and that its sale by • the plaintiff was, therefore, an interference with property in the possession of the court through its receiver, which constituted a contempt of court, and resulted in taking away from plaintiff the right to maintain this action to recover a sum justly due to him. We think it might well be held that this proposition was neither fairly nor at all presented to the court by the motion made. But if it be treated as being sufficient to raise the question, no error was committed by the court in denying the motion. His claim as to the title is, that the plaintiff, as the vendor of the yarn not delivered, had three remedies :

(1) To store the property for the vendee, and sue for the entire purchase price.

(2) To sell the property as the agent for the vendee, and recover the difference between the contract price and the price obtained on such resale.

(3) To keep the property as his own and recover the difference , between the market price at the time and place of delivery, and the contract price. (Van Brocklen v. Smeallie, 140 N. Y. 70.)

The two first remedies are based upon the theory that the title to the property by the contract and tender and assent of the seller becomes vested in the buyer. (Mason v. Decker, 72 N. Y. 595, 599.)

This, in a sense, is a legal fiction resorted to for the purpose of ascertaining the damages sustained by the vendor. The plaintiff adopted the second remedy.

Whether the sale of the pí’operty after the receiver had refused to receive it or have anything to do with it, under such circumstances as caused the title by operation of law to become vested in the buyer, constituted a technical contempt of court, need not be decided, for if it did, there is nothing in this record which entitles the defendant to defeat a recovery.

If the alleged contempt be a criminal contempt it involves no element of personal injury, and the punishment to be imposed by the court is for the purpose of asserting its own power and maintaining its own dignity. In a civil contempt, before punishment can be inflicted for the benefit of a party, it must appear that a right or remedy of a party to a civil action or special proceeding pending in the court may be defeated, impaired, impeded or prejudiced.” (Code Civ. Proc. § 14.)

Conviction for such an offense involves a judicial determination that the party’s rights or remedies have in some way been defeated or impaired by the contemptuous act. Sections 2266 to 2292 prescribe the proceedings to be taken for the punishment of a contempt of court other than a criminal contempt.

The first-named section provides that in a case specified in section 14 of the Code “ the offence must be punished as prescribed in this title.”

It does not appear in this record that the orderly mode of establishing the guilt of the accused as provided by the Code, has been followed. Instead, the defendant shows what he claims to be a -technical violation of the injunction order, and then insists that without further inquiry the plaintiff can be prevented from prosecuting a meritorious cause of action. That without showing that defendant’s rights or remedies have at all been impaired or affected, the plaintiff should, in effect, be fined the amount due to him, which, in this case was the sum of $826.60.

Even if it should be conceded that an unadjudged contempt may be successfully pleaded as a defense to a common-law action on con-tract, it would not avail tlie defendant because of Ms failure to establish the proof essential to make out the defense.

As I view it, the utmost that the pleadings or proof establish, is, that there was a technical violation of an order punishable as a criminal contempt, which does not constitute a matter of defense.

Defendant’s exceptions should be overruled, and judgment ordered for plaintiff, with costs.

Exceptions sustained, new trial granted, costs to defendant to abide event.


author: Follett, J.:

text:
    The New York Life Insurance and Trust Company, as Trustee, etc., of Francis W. Lasak, Deceased, Plaintiff, v. Ophelia J. Cuthbert and Others, Defendants; Margaret S. Ives, Respondent; Cordelia D. Chauvet and Albert L. Chauvet, Appellants.

      What cross-demands cannot he litigated hy defendants inter sese under section 521 of the Code of Civil Procedure.

    Under the provisions of section 521 of the Code of Civil Procedure defendants in an action are not authorized to litigate, as between themselves, independent cross-demands not connected with the cause of action set forth in the complaint.
    Appeal by the defendants, Cordelia D. Chauvet and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of April, 1895, granting the motion of the defendant Margaret S. Ives to strike out certain portions of the answer of said defendants.
    This action was brought by the plaintiff as trustee under the last will and testament of Francis ~W. Lasak, deceased, for a judicial settlement of its accounts.
    The plaintiff was named as trustee in the last will and testament of said decedent, and acted as such until such last will and testament was declared by the court to be void.
    The defendants Cordelia D. Chauvet and Albert L. Chauvet answered the complaint and caused their answer to be served upon the attorney for the defendant Margaret S. Ives. In their answer tliey set up tlieir claims to the property in the hands of the plaintiff, and in addition thereto they made a counterclaim against the defendant Margaret S. Ives for $180,000 under an alleged agreement. The defendant Ives moved to strike out from the answer of the defendants Chauvet the portions thereof relating to the counterclaim against her, which motion was granted by the Special Term.

      Abram Kling, for the appellants.

      Charles F. MacLean, for the respondent.
   Follett, J.:

The fund which the plaintiff holds as trustee and for the distribution of which this action is brought, did not arise out of the agreement executed June 16,1892, but from the rents of real estate received before the will of Francis ~W. Lasak was set aside. Undoubtedly any of the defendants may allege that he or she is entitled to all or some share of the apparent interest of a co-defendant in the fund by reason of having acquired title thereto or a lien thereon by agreement. But that is not what the appellants seek to to do. They set up in their answer that, by a contract dated June 16, 1892, Margaret S. Ives, a co-defendant, agreed to pay them $180,000 in consideration of their having assigned to her their interest in the estate. This is an independent cause of action, having no relation to the fund which the plaintiff holds in its hands. Had the fund in the suit arisen out of the contracts of June sixteenth, a different question would have been presented.

Section 521 of the Code of Civil Procedure does not authorize defendants to litigate as between themselves independent cross-demands not connected with the- cause of action set forth in the complaint. (Smith v. Hilton, 50 Hun, 236.)

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

Van Brunt, P. J., and O’Brien, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York ex rel. The Knickerbocker Press, Appellant, v. Edward P. Barker and Others, Commissioners of Taxes and Assessments for the City and County of New York, Respondents.

      Taxation of corporation — certificate of incorporation, conclusive as to the location of its principal office.

    In case the statute under which a corporation is organized requires that its principal place of business or its principal office shall be designated in its certificate of organization, the statement in the certificate in respect thereto is, as against the corporation, conclusive evidence of its residence, unless its residence has been changed pursuant to some statute.
    The certificate of incorporation of a corporation stated that the location of its principal office was in the city of New York.

      Held, that under the General Corporation Law (§ 3 of chapter 687 of the Laws of 1892) the terms “principal office” and “principal place of business” were synonymous when used in respect to corporations organized under the laws of the State of New York;
    That the corporation was concluded by its certificate from asserting that it was not a resident of or taxable in the city of New York.
    Appeal by the relator, The Knickerbocker Press, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of March, 1895, dismissing the writ of certiorari granted herein.

      Everett P. Wheeler, for the appellant.

      James M. Ward, for the respondents.
   Follett, J.:

The relator was incorporated August 26, 1891, pursuant to chapter 561 of the Laws of 1890 (the Business Corporation Law) which requires that the location of the principal business office of corporations organized under it shall be stated in' the certificate of incorporation. In the certificate it is stated that the location of its principal office is in the city of New York. The business of the corporation is printing, binding and manufacturing books. Immediately after its incorporation it purchased land at New Rochelle, in the county of "Westchester, and there erected a factory whereat all of its manufacturing is carried on, and there the financial concerns of the corporation are principally transacted. "Where the corporation was assessed in 1893 does not appear, but in the year 1894 it was-assessed in the city of New York. The relator, asserting that it is not a resident of the city of New York and liable to taxation therein, obtained a writ of certiorari to review and set aside the assessment.

The policy of this State is to require corporations organized under its laws to have a fixed residence or domicile which is deemed to be where it has its principal office or principal place of business. Section 3 of chapter 687 of the Laws of 1892 — the General Corporation Law — provides: “ The term office of a corporation means its principal office withifi the State, or principal place of business within the State, if it has no principal office therein. The office of a stock corporation shall be in the county, town or city in which its business is principally carried on.” Under this statute the terms- “ principal office ” and principal place of business ” are synonymous when used in respect to corporations organized under the laws of this State. When a business corporation is organized, its incorporators are required to select for it a domicile or place of residence which must be stated in the certificate of incorporation. It is formally reasons important that the residence or domicile of a corporation shall be a matter of public record. Annual reports and consents to mortgage the property must be filed in the office of the-clerk of the county in which the principal office of a corporation is-located, and notices to reduce or increase its capital stock must be published in the county wherein its principal office is located, and persons having occasion to inquire into the financial standing of a-corporation, or as to the validity of its mortgage bonds, should be informed by the public record at what office the inquiry should be made. In case the statute under which a corporation is organized requires that its principal place of business, or its principal office, be-designated in its certificate of organization, the statement is as against the coloration conclusive evidence of its residence, unless its residence has been changed pursuant to some statute. (Western Transportation Company v. Scheu, 19 N. Y. 408; The Oswego Starch Factory v. Dolloway, 21 id. 449; Miner v. Tillage of Fredonia, 27 id. 155; Matter of Metcalf v. Messenger, 46 Barb. 325 ; Chesebrough Mfg. Co. v. Coleman, 44 Hun, 545; The Union Steamboat Company v. City of Buffalo, 82 N. Y. 351.)

It is urged that this rule will enable corporations to designate as their principal place of business some town in which taxes are low and remote from the real place of business of the corporation, and so substantially escape taxation. The statute requires that the certificate shall disclose the location of the principal office of the corporation, which “ shall be in the county, town or city in which its business is principally carried on.” The statement of the location of its principal office or place of business is a condition precedent, to the organization of a business corporation, and, should it appear that the location of its principal office was willfully misstated in the-certificate, or in case the corporation should change its principal place of business, without effecting a legal change of residence, for the purpose of evading taxation, it might present a case under section 1198 of the Code of Civil Procedure for the attention of the Attorney-General. ¥e think the corporation is concluded by its certificate from asserting that it is not a resident of or taxable in the city of New York.

The order should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concurred.

Order affirmed, with costs.


text:
    Lydia Katz, Appellant, v. Celia Schnaier, Individually and as Executrix, etc., of Jennette Gerstle, Deceased, Respondent, Impleaded with Others.

      Probate of will of personal property — within what time it may be set aside — electing to take under a will — power of the court to direct a verdict in an action under the Qode of Civil Procedure, § 2653a.
    Wliere no real estate passes under a will an action to vacate the probate thereof must be begun within one year after the probate.
    An action cannot be maintained to set aside the probate of a will by a plaintiff who has elected to take under the provisions thereof.
    In an action brought under the provisions of section 2653a of the Code of Civil Procedure the court has power to direct a verdict. The intention of the Legislature in the enactment of said section was not that the questions sought to be raised in sucli an action should be submitted to and determined by tbe jury, without regard to whether the evidence was sufficient to raise a question of fact or not, but that the trial of such an action should be conducted pursuant to existing laws and the rules regulating trials by jury.

      Hawke v. Hawke (82 Hun, 489), followed.
    Appeal by tbe' plaintiff, Lydia Katz, from a judgment of the Supreme Court in favor of the defendant, Celia Schnaier, individually and as executrix, etc., of Jennette Gerstle, deceased, entered in the office of the cleric of the county of New York on the 21st day of December, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit.
    June 30, 1890, Jennette Gerstle executed her last will and testament, by which she directed her executrix to pay to Lydia Katz, during life, the income on $9,000, and, on her death, to divide said $9,000 among her children. The executrix was also directed to pay to Rebecca Sanger, during life, the income on $9,000, and, on her •death, to divide said $9,000 among her children. She also bequeathed $3,000 to be divided equally among the daughters of her son Robert. At the death of the testatrix Robert had three daughters, Sadie, Norma and Rubie, all minors. The testatrix gave the remainder of her estate to Celia Schnaier, Robert Gerstle and Ralph Gerstle, to be divided equally among them.
    January 2, 1891, the testatrix died, leaving her surviving two .sons, Robert Gerstle and Ralph Gerstle, and three daughters, Celia Schnaier, Rebecca Sanger and Lydia Katz, her only heirs and next of kin. These children are the legatees mentioned in the will. Shortly after the death of the testatrix, and before her will was probated, her son Ralph Gerstle died, leaving a will, which was duly probated, by which he gave his estate to his surviving brother, Robert, and sisters, Lydia, Rebecca and Celia, to be divided among ■them. In January, 1892, a petition asking for the probate of the will was duly filed, and citations thereon were issued to and duly served on the four surviving children, Ralph having died, and the three daughter’s of Robert. Upon the return of the citation Rebecca Sanger appeared and filed an answer alleging that the will was not the voluntary act of the testatrix; that she was of unsound mind, and that it was not executed in conformity with the statute of this State relating to wills. April 23, 1892, the four surviving children entered into a compromise agreement, executed under their hands and seals,.in which the execution of the will, the death of the testatrix and the proceeding taken to probate the will were recited, and the agreement concluded as follows:
    “Now, this agreement witnesseth, That in consideration of one dollar and other good and valuable consideration in hand paid by the parties of the first part to the party of the second part, the receipt whereof is hereby acknowledged, the party of the second part agrees to take all necessary steps to discontinue and withdraw any and all proceedings, answers and objections by her made or made in her behalf by Hastings & Gleason, attorneys at law, in the Surrogate’s Court for the city and county of New York; and the party of the second part further agrees to waive, bar and estop herself and her assigns from ever making any objections or answers to said last will and testament questioning the validity of said will for any cause whatever; and
    “ It is further agreed between the parties hereto that the executors proceed to probate the last will and testament of Jennette Gerstle without further notice.”
    May 24, 1892, the will was admitted to probate, and letters testamentary issued to Celia Schnaier, who qualified and entered on the discharge of her duties. Robert Gerstle, who was nominated as the executor in said will, renounced. The testatrix left a personal estate amounting to about $39,000, but left no realty.
    The plaintiff has received from the executrix, on account of income on said $9,000, the following sums: May 26, 1892, $750; January 24, 1893, $127.84; July 24, 1893, $201.33. She has also received towards her share of the interest of her deceased brother Ralph in the testatrix’ estate $1,812.39.
    This action to annul the probate of the will, pursuant to section 2653a of the Code of Civil Procedure, was begun September 23,1893.

      George S. Hastings, for the appellant.

      Milton Mayer, for the respondent.
   Follett, J.:

No real estate passing under this will, and this action to vacate the probate having been begun more than one year after it was proved, the action cannot be maintained. (Long v. Rodgers, 79 Hun, 441.) Again, the plaintiff having elected to take under the will, cannot maintain this action to set it aside. (Caulfield v. Sullivan, 85 N. Y. 153 ; Lee v. Tower, 124 id. 370; 1 Jarman on Wills,. [6th Am. ed.] *415.) Every objection raised to the will in this action was raised by the plaintiff’s sister in the Surrogate’s Court, and the plaintiff consented in writing that the will should be proved, and has received the income upon the $9,000 since it was proved, with full knowledge of the facts and circumstances attending its execution, and of her mother’s condition when it was executed.

Apart from these legal defenses the plaintiff failed to establish a cause of action on the merits, or to present a question of fact for' the jury. The will on its face appears to be wise and equitable in every respect. The testatrix had an estate amounting to $39,000. She directed that the income of $9,000 be paid to each of two married daughters during their lives, and the remainder to their children. Had the estate been divided equally among the five children, each would have received but $7,800. The reason why the legacies to the two daughters were tied up during their lives is fully explained by the evidence. They had, as it appears, improvident husbands. The-evidence is entirely insufficient to justify an inference that the testatrix was incapable of making a will, or that she was unduly influenced, and it was proved to have been executed strictly in conformity with the statute. It is urged on the part of the plaintiff that in an action brought under section 2653a of the Code of Civil Procedure the court has no power to direct a verdict. This question has been determined adversely to the plaintiff’s contention in Hawke v. Hawke (82 Hun, 439). We think it was well held in the case cited that the intention of the Legislature was not that the-questions sought to be raised in such an action should be submitted to and determined by the jury without regard to whether the evidence was sufficient to raise a question of fact, but that it was-intended that the trial should be conducted pursuant to existing laws and rules regulating trials by jury.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    William E. Wamsley, Appellant, v. H. L. Horton & Company, (Limited), Respondent.

      Death of a defendant pending an action — cannot be pleaded as a defense — nor canille dissolution of a corporation.

    The death, of a sole defendant which has occurred during the pendency of an-action cannot be pleaded by his attorney as a defense to the action, nor can any defense be interposed in the name of a dead defendant, and the fact that the-defendant is a corporation does not alter the rule.
    In case a sole defendant dies, or if being a corporation it is dissolved, all subsequent proceedings taken by the plaintiff in the action before the defendant’s-representatives are brought in are void, and a judgment entered under such-circumstances is invalid.
    The authority of the attorney of record to act further in the case ceases upon the-death or dissolution of the client, and he can take no further steps in the action-under his original retainer.
    An answer served by a defendant’s attorney, pleading the death or dissolution of the defendant, should not be received by the attorney for the plaintiff, and if filed with the clerk of the court should be stricken out.
    Appeal by the plaintiff, William E. W amsley, from an interlocutory judgment of the Supreme Court in favor of the defendant,, bearing date the 8th day of March, 1895, and entered in the office of the clerk of the county of New York, overruling plaintiff's demurrer to one of the defenses contained in defendant’s answer,, and also from the order made at the New York Special Term and entered in the office of the clerk of the county of New York on-2d day of March, 1895, upon which said judgment was entered.
    This a.ction was begun January 9, 1893, by the personal service of the summons and complaint to recover damages for an alleged breach of contract. When the contract set out in the complaint' was entered into, and when this action was begun, the defendant was-a corporation organized and existing under the laws of the United Kingdom of Great Britain and Ireland, and engaged in business at the city of New York. The defendant appeared in the action and moved to set aside the service of the summons and complaint, which motion was denied. (68 Hun, 549; 70 id. 598; 139 N. Y. 656.) Subsequently the defendant demurred to the complaint but its demurrer was overruled. (77 Hun, 317.) Thereafter the defendant answered and later served an amended answer. November 21, 1894, a paper called a second amended answer was served, setting out four defenses, the fourth being that the defendant died — was dissolved — at London, England, on or about May. 23, 1893. This document, denominated the second amended answer, was verified November 20, 1894, by one of the firm of attorneys, who is the defendant’s .attorney of record in the action. The plaintiff demurred to the fourth defense on the ground that it “ is wholly insufficient in law, •on the face thereof.” The demurrer was overruled.

      Alexander S. Bacon, for the appellant.

      John R. Dos Passos, for the respondent.
   Follett, J.:

The death of a sole defendant who has died during the pendency of an action cannot be pleaded by his attorney as a defense to the action. Nor can any defense be interposed in the name of a dead defendant. The fact that the defendant is a corporation does not alter the rule. In case a sole defendant dies all subsequent proceedings taken by the plaintiff in the action before the defendant’s representatives are brought in are void. A judgment entered under such circumstances would be invalid. When it is shown that a sole defendant has died, it is usual to enter a suggestion of the fact on the record which suspends all subsequent proceedings until the representative is brought in. It is very clear that a dead defendant cannot plead its death or any other fact as a defense. The authority of the attorney of record to act further in the case ceases upon the death of the client, and he can take no further steps in the action under his original retainer. We are unable to see on what principle any of the defenses interposed by this second amended answer can be demurred to. This answer ought not to have been received by •the plaintiff’s attorney, and, if filed with the clerk of the court, it .should have been stricken out. A notice of motion to strike out such an answer may be served upon the person who assumed to •serve and file it. The record before us is a strange one, and, we think, without precedent. We have a judgment asserting that a dead defendant has intei-posed a valid defense, and awarding it costs ,on the trial of an issue of law. We think the practice is without precedent and without authority, and that neither the second amended answer nor any of the papers subsequently served or entered are valid, and they form no part of the record in this case, and that the second amended answer and all subsequent proceedings-should be vacated and set aside, without costs to either party.

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

Second amended answer and all subsequent proceedings vacated and set aside, without costs to either party.


author: Parker, J.:

text:
    In the Matter of the Probate of the Alleged Will of Susanna McDougall, Deceased. John W. McDougall and Another, Proponents, Appellants; Addison McDougall, Contestant, Respondent.

      Probate of will — witness who neither saw the testator sign nor the signature.

    "Where it appears in. a proceeding for the probate of an instrument as the last will and testament of a testator that one of the subscribing witnesses to such instrument neither saw the testator subscribe his name at the end thereof, nor saw his signature at the time of or before subscribing his name as an attesting witness, there is not such an execution as the statute requires, and the instrument should not be admitted to probate.
    Appeal by John W. McDougall and another from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 17th day of June, 1894, refusing probate to the papers propounded as the last will and testament and codicil of Susanna McDougall, deceased.

      Geo. W. McAdam, for the appellants.

      Hunter & Battle, for the respondent.
   Parker, J.:

The surrogate was right in holding that if John W. McDougall, one of the subscribing witnesses to the instrument propounded impróbate, neither saw the testatrix subscribe her name at the end thereof, nor saw her signature at the time of, or before subscribing his name as an attesting witness, there was not such an execution as the statute requires. (Matter of Mackay, 110 N. Y. 611; Mitchell v. Mitchell, 16 Hun, 97; affd., 77 N. Y. 596.)

It is true that the court said otherwise in Willis v. Mott (36 N. Y. 486-491), but the Court of Appeals in the Matter of Mackay Heated the discussion in the Willis case on that subject as mere .dictum not entitled to the weight of authority, and refused to follow it.

While we agree with the law as stated by the surrogate, we do not think the fact is that the subscribing witness, John W. McDougall, did not see the signature of the testatrix before or at the time .of signing the instrument.

The facts attending the attempted execution of the instrument before the court are, that Susanna McDougall, while in Buffalo, requested her son Sidney McDougall to have her will prepared .according to the directions which she gave, which was done. Therenpon, she subscribed it in his presence, and requested him to sign it •as an attesting witness, which he did, and in her presence. A few .days later she returned to her home in the city of New York, when ¡she told another son, John McDougall, what she had done, and requested him to subscribe his name as a witness to the execution of •the instrument which she declared to be her will, and he did so.

His testimony, and the whole of it, so far as it relates to the question whether he saw her signature, is as follows: “ Q. She handed it to you (meaning the will) folded up ? A. Yes, sir. Q. So that you .did not see the signature at the time she said that? A. Not at the time; no. Q. And you then signed this will in her presence and in the presence of your sister, Miss McDougall ? A. Yes, sir. Q. Do jou remember what her identical words were when she handed you the will? A. No; I can’t remember her identical words; the purport was, as I have stated, it was her last will and she would like to have me put my name on as a witness, with my brother. Q. And she handed you the will folded in such a manner that you didn’t see the signature ? A. Yes, sir.”

The witness gave no other testimony on this subject,, and the surrogate reached the conclusion that at the time he subscribed his name as an attesting witness he did not see the signature of the testatrix. But the original will which is before us shows that he must have seen tlie signature at the time of signing his name, for his signature, •together with his address, appears on the line next below the line upon which the testatrix signed her name, and some portion thereof overlaps a portion of the signature of the testatrix. There was no fold in the paper near either signature, and it was an utter impossibility for him to sign his name without seeing her signature. Had lie testified otherwise, the court, with the evidence before it which the will furnishes, would have been obliged to find, as a matter of fact, that the signature of the testatrix was before him at the time of subscribing his name as an attesting witness. But we think McDougall did not intend to testify that he did not see the signature of the testatrix at that time. The question addressed to him was : “Q. She handed it to you folded up? A. Yes, sir. Q. So that you did not see the signature at the time she said that ? A. Not at that time; no.”

This answer is a guarded one. Of course, he did not see the signature when the instrument was handed to him folded up. He was careful not to say that he did not see it at all. He answered the question as it was put, hy saying in effect that he did not see it at the time, namely, at the time the instrument was handed to him.

Without further discussion of this subject we content ourselves by saying that we find nothing in the evidence of this witness indicating that he wished the court to understand that he did not see the signature of the testatrix upon the instrument at the time he signed his name as a witness thereto, while, on the other hand, the position of the signature upon the instrument shows conclusively, as we have observed, that he did see the signature of the testatrix.

The decree should be reversed and the case remitted to the •SuiTogate’s Court for rehearing, with costs to the appellants to be paid out of the estate.

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

Decree reversed and case remitted to the Surrogate’s Court for rehearing, with costs to the appellants to be paid out of the estate.


text:
    Frank Work and Others, Respondents, v. Dudley Tibbits, Appellant, Impleaded with Others.

      Wrongful pledge of stocks- — the pledgee cannot charge upon them a counsel fee incurred in defending the validity of the transfer to him.

    The lawful owner of certain stocks, which had been wrongfully pledged to a firm by a third person, brought a suit against the pledgees for the recovery of the stocks in question. The pledgees answered setting up that they were bona fide holders for value of the stocks, without notice of the title or interest of the plaintiff. The action was then abandoned by the owner of the stocks.
    In an action brought by the pledgees of the stocks to foreclose their lien, a claim was made in their behalf for counsel fees and expenses incurred in the litigation brought by the owner against them.

      Held, that the suit was not brought for the benefit of the pledgor, nor was the defense undertaken in his behalf;
    That there was no implied authority to defend in the pledgor’s behalf, and that the pledgees in defending acted solely for their own benefit, and that they were entitled to no further reimbursement than the law generally affords to successful litigants, namely, the costs in the action.
    Appeal by the defendant, Dudley Tibbits, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 1st day of March, 1895, upon the decision of the court rendered after a trial at the New York Special Term.

      Esek Cowen, for the appellant.

      Charles Fox, for the respondents.
   Parker, J.:

This suit was brought to foreclose a lien on certain stocks pledged to the plaintiffs by Ogden, Calder & Co. There was found to be due the plaintiffs under the. contract of pledge the sum of $34,930.07, which included $4,538.75 allowed for counsel fees and expenses incurred in certain litigations in relation to the stocks which were the subject of the pledge.

The controversy on this appeal relates solely to the latter item. The defendant Tibbits, and not Ogden, Calder & Co., was the real owner of the stocks at the time the contract of pledge was entered into. And in pledging the stocks, as they did, to these plaintiffs, they acted wrongfully, but of this fact these plaintiffs had no knowledge.

At the time of the commencement of this suit there were pending three actions against the plaintiffs, arising out of the transaction had by them with Ogden, Calder & Co., one of which was instituted, by Tibbits.

In Tibbits’ action plaintiffs answered, setting up that they were tona fide holders for value of the stocks mentioned in the complaint without notice of the title or interest of the said Tibbits. And such answer being interposed, the action was abandoned by the defendant Tibbits. It was in such action thac plaintiffs incurred, the counsel fees and expenses which are in dispute.

The pledgees were successful in that litigation because of superior' equities growing out of the fact that Tibbits so left his stocks with Ogden, Oalder & Co. as to give the appearance of ownership an appearance that the pledgees had a right to rely on, and did.

This act, coupled with the wrongful doings of Ogden, Calder & Co., opened the way for the application of the equitable rule-that where one of two innocent parties must suffer, the one whose neglect made possible the injury must bear the loss.

The defendant’s title, therefore, did not avail him, and the abandonment of his action to recover the stocks probably resulted in a judgment for costs, which ordinarily measures all that the successful party may have by way of indemnity for counsel fees and expenses incurred in establishing his position through a judicial determination.

But the plaintiffs claim that in this case they can take out of the proceeds arising from the sale of the stock, of which Tibbits was the real owner, not only the amount loaned by them and the taxable costs recovered against Tibbits, but all the counsel fees incurred by them in establishing the priority of their equity over that of Tibbits.

They have no precedent directly in point for it, but claim to be within the rule which permits a pledgee to charge to the pledgor and deduct from the fund realized by the sale of the thing pledged, all necessary expenses incurred in clearing or defending the pledgor’s title.

A distinction between such a case and this at once forces itself upon the attention, and that is that these plaintiffs have been allowed to deduct over $4,000 for expenses incurred, not in defending the pledgor’s title, for he had none, but in defending the validity of the transfer to themselves.

The plaintiffs’ pledgor did not have any title, and, therefore, they did not receive any from him. Nevertheless, they defeated Tibbits because he so acted as to put it in the power of his brokers to induce them to make a loan on the faith of the pledgor’s ownership of the stock.

Such a defeat ordinarily carries against the defeated party, and in favor of the successful one, taxable costs, with perhaps an'allowance. There seems to be no good reason why these plaintiffs should be more favored than the average suitor, nor why this defendant should be more severely punished for his neglect than the many who are called upon to respond to others in some manner for their carelessness.

None has been suggested certainly, and it is safe to assume that ■one would have been had the thoughtful examination of the counsel led to its discovery.

In such case the courts should not strain the rule affecting the reimbursement of pledgees for the purpose of bringing the plaintiffs’ claim within it. And unless that be done plaintiffs’ claim for the expenses of their litigation must fall.

The foundation rule is, that the pledgee after sale must credit the pledgor with the net amount realized by him from the proceeds of the pledge. If put to expense in order to protect the propertpledged, compelled to pay an incumbrance to prevent foreclosure, or forced to defend the pledgor’s title, the gross proceeds must be reduced to the extent of the expense incurred in the doing of one or all of these things, because done- on behalf of the pledgor and for his benefit.

The property passes to the pledgee burdened with adverse claims against the pledgor, and but for the pledge the latter would be compelled to incur in the first instance the expense which devolves upon •.the pledgee by the contract of pledge.

What is done by the pledgee in such case is, therefore, for the benefit of the pledgor, and justifies the rule of law that the pledgee, upon whom has been shifted the burden of maintaining or defending the property pledged, shall have reimbursement out of the proceeds, turning over to the pledgor only what sum shall thereafter remain.

The decided cases to which our attention has been called, aside from those involving payment of incumbrances or expense incurred in preserving the property pledged, relate to expense incurred in vindicating the pledgor’s title.

But in this case the pledgors did not have title to the stock pledged. In making the pledge they acted without right. What these plaintiffs attempted to accomplish was not to establish that their pledgor had title, but that plaintiffs were purchasers in good faith from them while they were in possession and clothed with .apparent ownership, and, therefore, as against the real owners, were ■entitled to so much of the proceeds as should be required to satisfy the pledge.

The suit was, therefore, of no benefit to the pledgor, nor was the defense undertaken in such belief. Hence there was no implied authority to defend in the pledgor’s behalf, and in defending the pledgees acted solely for their own benefit, and it would seem that they were entitled to no further reimbursement than the law generally affords to successful litigants.

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

Van Brunt, P. J., and O’Brien, J., concurred.

Judgment reversed, new trial granted, costs to appellant to abide event.


author: O’Brien, J.:

text:
    Nicholas Ennis, Respondent, v. Henry Winthrop Gray, as Receiver of the Thomson-Houston Electric Company of New York, Appellant.

      Negligence — personal injuries —burden of proof — liability for accidental or unavoidable injuries — duty to use ordinary care and shill to avoid danger —evidence of want of care - negligence must be proven — liability for an injury caused by a thing not inherently dangerotis.

    In order to sustain an action for injury arising from negligence, it must appear that there was a legal duty owing by the person inflicting the injury to the person on whom it was inflicted, and that such duty was violated. A general duty to the public is not suflicient; it must be a special duty to the individual in j ured.

      A man may, upon his own lands, build factories and dams and make use of machinery without liability for any damage which may accidentally or unavoidably ensue.
    Whenever one person is by circumstances placed ip. such a position in regard to another that every one of ordinary prudence would recognize that, if he did not use ordinary caro and skill in his own conduct with regard to these circumstances,' he might cause injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.
    In an action brought to recover damages for personal injuries, sustained by reason of the alleged negligence of the defendant, there must be reasonable evidence of negligence on the part of defendant; but when the thing causing the injury is shown to be under the defendant’s control, and it appears that the accident is such as in the ordinary course of business does not happen if reasonable care is used, such proof, in the absence of explanation by the defendant, affords sufficient evidence that the accident arose from a want of care on its part.
    Since every man is presumed to discharge his duty it results therefrom that whoever asserts the negligence of another must prove the fact, and must prove it by a preponderance of evidence. There are cases, however, in which the maxim “res ipsa loquitur” applies — that is to say, in which the very occurrence itself imports negligence.
    In order that liability shall attach for an injury occasioned by something not inherently dangerous or defective, which is found upon the grounds of or in use by one who is undera qualified obligation to the injured person, it must be shown that the defendant either knew, or that by the exercise of such reasonable skill, vigilance or sagacity as are ordinarily possessed and employed by persons experienced in the particular business to which the thing pertains, he-should have known of its defective and dangerous condition, and that the natural and probable consequence of its use would be to produce injury to some one.
    Appeal by the defendant, Henry "Winthrop Gray, as receiver of the Thomson-Iiouston Electric Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of February, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 4th day of March, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Henry L. Sprague, for the appellant.

      James Cowden Meyers, for the respondent.
   O’Brien, J.:

The action is brought to recover damages for injuries due to negligence. The plaintiff, a roofer by trade, was at work on a cornice over a liquor store at tlie corner of Twenty-third street and Third avenue, in the city of New York, which were owned, as were the premises, by one McCaffrey. There was upon the south end of the cornice an iron box, a converter or transformer, used to change a high tension electrical current of 1,000 volts to a low tension current, maintained and operated, by the defendant. The cornice was two feet two inches wide, and the distance between the converter and the wall was fourteen and one-quarter inches. The space between the converter and the westerly edge of the cornice was one and three-quarter inches. The converter was connected by wires to a cable in a standpipe coming up from the street at the south end of the cornice. These wires were joined from the standpipe to two fuse boxes upon the top of the converter, the primary wires hanging between the converter and the wall of the house.

The plaintiff was on his knees, facing south, and had in his hand a small whisk broom, with which he was sweeping the tin roof around the northeast corner of the converter ; he received a shock and became unconscious; he was found with his clothes in flames, lying upon the wires between the converter and the wail; that his injuries were serious and justified the damages as reduced by the court is not disputed; neither were exceptions taken to the admission or rejection of evidence, nor to the judge’s charge, the defendant urging upon this appeal questions relating to the merits of plaintiffs cause of action, which are presented by his motion to dismiss the complaint at the close of the plaintiff’s case, and after the verdict by the motion for a new trial upon tlie ground, among others, that such verdict was against the weight of evidence.

The first question, therefore, is, had the plaintiff, when he rested, made out a prima facie case of negligence ? It appeared that the wires which caused the damage were exposed to contact by any one who went to the south end of the cornice, and that they were in front of a window between the wall of the building and the converter ; and this arrangement of the box and wires was characterized by an electrician who went to the place of the accident as improper. The evidence also tended to show that the wires were improperly insulated, the insulation having worn off in five places on the primary wires; that at one point there was a bad splice entirely uninsulated, and that the defective insulations were old. Such evidence, we think, made out a prima facie case of negligence, because it tended to support-two grounds relied on by the plaintiff, viz.,, that the wires were improperly placed, without safeguards, and were improperly insulated.

It is insisted by appellant that there were no contractual relations or other privity between plaintiff and defendant which required the latter to protect the former from injury while lie was working for McCaffrey and while he was on McCaffrey’s premises; and in support of such insistance our attention is called to the well-settled rule that in order to maintain an action for injury arising from neglect it must appear that there was a legal duty from the person inflicting the injury to the person on whom it was inflicted, and that such duty was violated; that a mere general duty to the public is not sufficient, but it must be a special duty to the individual injured. Reliance is placed upon the cases of McAlpin v. Powell (70 N. Y. 130); Victory v. Baker (67 id. 368), and Cosulich v. Standard Oil Co. (122 id. 118).

In the first case cited (McAlpin, v. Powell), where a child of a family in a tenement house was injured by falling through a trap in a fire escape which was improperly secured, it was held that, it having only been put up for a fire escape to be used for the protection of life in case of danger from fire, and not being intended and never used as a balcony, the owner owed no duty to the tenant or his family to keep the platform of the fire escape in such repair that it might be used as a balcony; and the distinction is there pointed out between that case and one requiring a party to protect a structure on his own property which is dangerous to others.

In Victory v. Baker (supra), where a boy his life by falling into a vat of boiling water in defendant’s factory, whither he had gone by direction of his employer, it was held that the manner in which the owner of the factory chose to use or appropriate his property could not be questioned ; and, if in the lawful exercise of his right and without negligence on his part, a third person sustains injury from this use by the owner, the owner is not answerable.

The case of Cosulich v. Standard Oil Co. (supra) was an action to recover damages sustained by the burning of a vessel through the alleged negligence of the defendant. The defendant owned and managed a petroleum refinery. Plaintiff’s vessel was lying at a wharf adjacent thereto. An explosion took place, the oil within defendant’s inclosure took fire, and a quantity of it while burning flowed down a pipe used by defendant for pumping oil from vessels into its refinery connected with a lighter laden with petroleum moored at defendant’s wharf; the lighter exploded and burning oil therefrom was thrown upon plaintiff’s vessel, which set it on fire. As said in the opinion of that case: The defendant was not maintaining a nuisance. Its business was lawful, and in its conduct the law does not impose the obligation of saving harmless others from the consequences resulting from the occurrence of inevitable accident,, but rather burdens it simply with the duty of using reasonable care and caution to save others from injury.” There being no evidence of negligence except such as it was insisted should be presumed from the proof of the explosion, it was held that such proof was not sufficient to authorize an inference of negligence, and for that reason it was error not to have granted the motion for a nonsuit.

None of these eases upon the facts here appearing is in point. These were all cases where injury resulted from the use of premises belonging to the party sought to be charged and that caused the injury to persons to whom was owing no obligation éither of contract, duty or service, and were controlled by the well-settled law that a man may, upon his own lands, build factories and dams and employ the use of machinery, without liability for any damage which may accidentally and unavoidably ensue.”

Without quarreling with the rule invoked by the appellant or the cases cited by him, we think the facts here presented sufficiently show the distinction. The defendant was engaged in the business of supplying electricity for lighting purposes in houses and streets of the city, and considering the high voltage which it was necessary to carry over the wires, thus rendering the business in the highest degree dangerous unless handled with care and skill, we think that outside of any contractual relation a duty was created on the part of the defendant, not only towards the public generally who in the streets might be likely to come in contact with the wires, but also with respect to any individual engaged in a lawful occupation in a place where he was entitled as of right to be. The relation and obligation of parties are accurately expressed in Heaven v. Pender (L. R., 11 Q. B. Div. 503), the substance of which is that whenever one person is by circumstances placed in sucli a position with regard to another that every one of ordinary prudence would recognize that, if he did not use ordinary care and skill in his own conduct with regard to these circumstances, he might cause injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. Here the defendant was engaged in placing wires in the streets and making connections with houses intended for occupancy, and as its business was of a character highly dangerous and likely to result in injury to others unless it was conducted with care and prudence, the duty was created in the conduct and management of such business of using the necessary care and prudence to prevent such injury. That the defendant did not perform this duty the plaintiff presented evidence tending to show, and the court, therefore, properly denied the motion to dismiss the complaint at the end of plaintiff’s case.

It is claimed, however, that in view of the testimony given by the defendant the motion for a new trial should have been granted upon the'ground that the verdict was against the weight of evidence. Ye have examined the record, and -while it is true the witnesses for the defendant outnumbered those for the plaintiff, we do not think the weight of evidence so clearly preponderated in defendant’s favor that the court would have been justified in granting the motion for a new trial. If anything, the plaintiff’s case was strengthened by the showing that a change was made in the manner of construction between the time of the accident and the trial; and upon cross-examination of defendant’s expert as to the relative safety of the two modes of construction, such evidence tended to show that the present construction is safer than that which existed at the time of the accident. Ye think, therefore, that the question as to whether the defendant exercised ordinary care in the construction and maintenance of the electrical converter and its appliances was, under proper instructions, to which no exceptions were taken, properly submitted as a question of fact to the jury.

A further question is presented, considering the nature of the accident, whether merely from its happening a presumption of negligence did not arise. As said in Breen v. N. Y. C. & H. R. R. R. Co. (109 N. Y. 300): “ There must be reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of a defendant, and the accident is such as in the ordinary course of business does not happen if reasonable care is used, it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.” And as said in Millie v. Manhattan Ry. Co. (5 Misc. Rep. 301): “ Since every man is presumed to discharge his duty, it results that whoever asserts negligence of another must prove the fact, and must prove it by a preponderance of evidence. But there are cases in which the maxim res ipsa loquitur applies — that is to say, in which the very occurrence itself imports negligence. The specific question here is whether the occurrence in controversy carries with it an imputation of negligence against the defendant with the effect of imposing upon the defendant the burden of repelling this prima facie presumption of negligence.” So here we might ask whether the happening of this accident does not carry with it an imputation of negligence, it being self-evident that if the wires had been properly insulated it would not have occurred, and it being equally clear that with the exercise of ordinary care defective insulation could be avoided. It is unnecessary for us, however, to decide that the rule of res ipsa loquitur applies — and we do not, therefore, put our decision on this ground — because, as we have already pointed out, the plaintiff assumed the burden of establishing the negligence of the defendant, and in that connection presented evidence from which the jury properly could infer that the position and manner of 'construction of the wiring and electrical converter were improper, and that in five places the wire was imperfectly insulated and bore evidence of having been in that condition for some time. If, therefore, we apply the rule most favorable to the defendant, that, “in order that liability shall attach for an injury occasioned by something not inherently dangerous and defective, which is found upon the grounds of or in use by one who is under a qualified obligation to the injured person, it must be shown that the defendant either knew, or that by the exercise of such reasonable skill, vigilance and sagacity as are ordinarily possessed and employed by persons experienced in the particular business to which the thing j>ertains, he should have known of its defective and dangerous condition, and that the natural and probable consequence of its use would be to produce injury to some one,” then, under this-rule, we think, a case was made out for the jury.

The only other ground relied upon by the defendant is, that the plaintiff, by his own negligence, contributed to the injury. The-question having been submitted to the jury under proper instructions, and there being ample evidence-to sustain their finding thereupon in plaintiff’s favor, we should not interfere with the verdict reached.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Per Curiam :

text:
    Johann Helmprecht, Appellant, v. Jason Marvin Bowen, Respondent.

      Leave to sue as'a poor person — assignment of an attorney to conduct the case — no compensation — Code of Civil Procedure, section 460.
    The court is not obliged to assign to conduct a case the attorney designated by a party applying for leave to sue as a poor person.
    Section 460 of the Code of Civil Procedure requires that the attorney designated shall agree to conduct the action without compensation.
    Appeal by the plaintiff, Johann Helmprecht, from an order of the Supreme Court, made at the New York Special Term and entered in the office pf the clerk of the county of New York on the 24th day of May, 1895, denying the plaintiff’s application for leave to sue as a poor person.
    An application was made by the plaintiff in an action for leave to sue as a poor person, and that a certain attorney be assigned to him as counsel to prosecute the action.

      Robert Goeller, for the appellant.

      Blair & Rudd, for the respondent.
   Per Curiam :

The order should be affirmed. It is evident from the affidavits of the plaintiff that he is reckless in his averments. The court is not required to assign an attorney designated by the party applying. Furthermore, the proposed attorney in the case at bar nowhere agrees to conduct the action without compensation, as required by section 460 of the Code of Civil Procedure.

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

Present — Van Brunt, P. J., O’Brien and Parker, JJ.

Order affirmed, with ten dollars costs and disbursements.


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

text:
    The People of the State of New York ex rel. The Commissioners of Charities and Corrrections, etc., on the Complaint of Maude M. Halliday, Respondent, v. Charles C. Schildwachter, Jr., Appellant.

      Appeals from orders of filiation — offer of evidence on the trial— Code of Criminal Procedure, § 851.
    Appeals to Courts of General Sessions from orders made by. magistrates respecting bastards, like appeals from District. Courts to a County Court, involve a new trial, and it is only upon showing that the mother of the bastard is dead or insane that her former evidence will be admissible on such new trial.
    In bastardy proceedings evidence affecting the complainant’s chastity subsequent to the birth of her illegitimate child, Or long prior to the period of gestation, has no material bearing upon the question at issue, as to whether the defendant was the father of the child.
    An offer to produce testimony, some of which is good and some bad, affords no reason for the reversal of a judgment rendered against the person making such offer.
    If, however, without permitting the production of any witness on behalf of the person making such offer the court gives judgment against him, and thus excludes the presentation of evidence on his behalf, the only course open to him is to make an offer to submit such evidence as he is able to produce if allowed to do so.
    Section 851 of the Code of Criminal Procedure affects only appeals to the Court of General Sessions, and where the defendant in bastardy proceedings gave an undertaking only for his appearance, the Court of General Sessions is at liberty upon an appeal from the order of filiation made in the proceeding to review the entire order made by the magistrates.
    Appeal by the defendant, Charles C. Schildwachter, Jr., from an order of filiation, made by two police justices of the city of New York on the 14th day of June, 1894, and also from an order of the Court of General Sessions of the Peace held in and for the city and county of New York,' entered in the office of the clerk of the Court of General Sessions of the Peace on the 28th day of December, 1894, affirming the said order of filiation.

      Da/vid Welch, for the appellant.

      Devoid MilUhen, Jr., for the respondent.
   O’Brien, J. :

The relator alleged that on the 13th day of August, 1892, in the city of New York, she was delivered of an illegitimate child, and that the defendant is the father. On the 12th of May, 1894, the defendant on this charge was arrested on'the complaint of one of the charity commissioners and gave a bond for his appearance before the police justices. An examination into the merits was had before two police magistrates, and to sustain the charge the relator testified that on November 28, 1891, she had sexual relations with the defendant, and that she gave birth to a male child of which the defendant is the 'father. Another witness testified to admissions made by the defendant that he was the father. On the other hand, many witnesses were called by the defendant who testified to facts and circumstances for the purpose of impeaching the complainant’s character for. chastity, but no evidence was introduced of sexual intercourse between her and any other person within the period of gestation nor within a period of three months prior thereto.

The judges at Special Sessions sustained the charge and made the order of filiation, ujion which the defendant gave an undertaking for his appearance at the General Sessions and took an appeal to that court. By stipulation, the testimony of the relator was taken before one of the clerks of the General Sessions, and questions having arisen ,as to rulings upon the admissibility of evidence, the proceedings were removed before the court. The record shows that upon the parties appearing, and without any farther evidence being taken, the court said: It is conceded on the record that- within the period of gestation the defendant, Charles C. Schildwachter, Jr., has had connection with this relator; even though it should appear that two hundred and fifty others had also within the same period criminal connectiion with her, I shall hold, and sustain the order of filiation.” To-this ruling an exception was taken, and the counsel for the defendant said : “ I now offer to prove to the court that outside of the acts of the defendant in having had relations with this woman within the period of gestation, other men have had similar relations with her during the same period of time; I also offer to prove the separate and distinct acts and transactions of this woman, the relator, prior to the period of gestation, and connect her with consorting with prostitutes and other disreputable persons, men and women j * * * and more particularly referring to the period of on or about November 28th, 1891, and also subsequent to the birth of the child, August 13, 1892; that counsel also wishes to offer in evidence to impeach the credibility of the relator by documentary and other proof.” The court said: “ In the light of all that counsel has stated that he desires to prove, he having conceded that his client has had criminal relations with the relator within the period of gestation, I think that would be sufficient to sustain the order of filiation made by the court below.” To which the counsel for defendant said : I take exception to your Honor’s ruling, refusing to give me an opportunity to present these witnesses and present such proof.” Thereupon, against the defendant’s objection, the record in the case in the Court of Special Sessions was offered in evidence and admitted, to which ruling defendant’s counsel also excepted.

The extracts made from the record are sufficient to show the danger of a departure from the regular procedure in the trial of any question before the court. Section 861 of the Code of Criminal Procedure, which relates to appeals from the orders of magistrates respecting bastards,” provides : “ The court (meaning the General Sessions) must immediately, or at any other time it may appoint, proceed to hear the allegations and proofs of the parties; and the party in whose favor the order was made must support it by evidence. If the mother of the bastard is dead or insane, her testimony on the examination before the magistrate is receivable in evidence.” It will thus be seen that appeals from magistrates to the Court of General Sessions, like appeals froth District Courts to a County Court, involve a new' trial, and it is only upon showing that the mother is dead or insane that her former evidence would be admissible upon such trial. That there was no new trial before the General Sessions this record discloses. The relator was produced and examined in chief before one of the clerks, and before her examination was finished the dispute in regard to certain questions arose between counsel, and the whole matter was then brought before the court. The cross-examination of the relator was not again resumed, .and the defendant was not permitted to introduce any evidence, the learned judge having concluded that there was sufficient in the testimony already taken before the clerk and in the other record before the police magistrates, together with the statement of counsel for the defendant (who practically admitted the *" relations between the defendant and the relator in November, 1891), to justify an affirmance of the order of. filiation made by the police justices. We do not think the court had the right to deprive the defendant of the benefit secured to him by appeal of having a new trial upon the charge, which included not only the right fully to •cross-examine the relator, but also to produce and examine his own •witnesses.

We think it was also error to admit the testimony and all the proceedings taken before the police magistrates. It may be urged that the manner in which the defendant attempted to present his proof in the form of wholesale offers was equally reprehensible. Thus evidence affecting the complainant’s chastity subsequent to the birth of the child, or long prior to the period of gestation, could have no material bearing upon the question at issue as to whether the defendant was the father of the child, and, if offered, it would be very properly excluded as incompetent. In addition, however, to the •offer to present such testimony, we have the further offer of testimony covering a period'which, in respect'to the charge made, would have rendered it competent. An offer to produce testimony, some of which was good and some bad, would usually be of no avail, because the court ordinarily should not receive or entertain it, and a refusal to do so would not be error. But where, as here, without permitting the production of any witness on defendant’s behalf, the court gave judgment and thus excluded the presentation of evidence by the defendant, we do not see what other course was open to him but to make the offer to submit such evidence as he could produce, if allowed to do so. As shown by the record, before the relator’s examination was closed, and before the defendant had the opportunity to present any evidence, tlie court said: “ It is conceded on the record that within the period of gestation the defendant Charles O. Schildwachter, Jr., has had connection with this relator; even though it'should appear that two hundred and fifty others had also within the same period criminal connection with her, I shall hold and sustain the order of filiation.” If the new trial as contemplated had been had, and if the relator by evidence had sustained the charge, and •the defendant had had the opportunity to present such evidence as was competent, and notwithstanding the latter, the court had still been of opinion that the defendant was the father, it would give his conclusion all the force and weight to be attached to a determination reached upon conflicting evidence. We cannot, however, overlook the fact that the right which is given to the defendant of cross-examining the relator and of producing witnesses in his own behalf was denied him, for which error alone we think the order should be reversed.

The respondents insist that the defendant, after affirmance, having executed a bond to comply with the order of filiation, and no question being raised as to the amount of the allowance, the appeal should be dismissed. This claim is based upon section 861 of the Code of Criminal Procedure, which provides : “ A person deeming himself aggrieved by the order of two magistrates, made pursuant to the last chapter, may appeal therefrom to the next Court of Sessions of the county, except that a person who has executed an undertaking to obey an order of filiation and indemnify the public, as provided in section eight hundred and fifty-one, cannot appeal from any other part of the order mentioned in section eight hundred ámd fifty than that which fixes the weekly or other allowance to be paid.” Section 851 provides for two distinct kinds of undertakings, .and is in the alternative, either that the defendant will.pay the sum directed for the support of the child, or will appear at the next Court of Sessions of the county to answer the charge and obey its order thereon. If an undertaking had been given as provided in the first part of section 851 for the payment of the weekly sum, then the respondents would be right in their contention that the only question that could be raised was as to the amount of the allowance. 'The undertaking given by this defendant was, first, for his appearance before the magistrates after his arrest, and afterwards, for his appearance at the General Sessions upon the appeal taken by him from the order of filiation made at the Special Sessions. It will be noticed that section 851 affects only appeals to the Court of General Sessions, and where, as here, the defendant gave an undertaking only for his appearance, the Court of General Sessions was at liberty, upon the appeal, to review the entire order made by the magistrates.

Our conclusion, therefore, is that the order of the General Sessions affirming the order of filiation made by the Special Sessions should be reversed and the matter remitted to the General Sessions for a rehearing, pursuant' to the provisions of the Code of Criminal Procedure regulating appeals from the orders of judges of the Special Sessions.

Follett, J., concurred.

Van Brunt, P. J.:

I concur. I think that the appellant had a right to show that the child in question may not have been the result of his efforts, but rather was due to the operations of a syndicate.

Order of General Sessions reversed, matter remitted to the General Sessions for rehearing.


text:
    Josephine F. Clason, Plaintiff, v. John Kehoe and James M. Griggs, Defendants.

      Undertaking on appeal in ejectment — sureties released when the principal paps costs and secures a new trial — when liable for the use and occupation during the pend-ency of the appeal — action prematurely brought on an undertaking — Code of Oivil Procedure, § 1809.
    A surety is to be beld liable only according to tlie terms of tbe obligation, and whenever the principal is released the surety is released.
    Sureties upon an undertaking, given upon an appeal by the defendant in an action of ejectment, being only sureties to secure a specific judgment, are released when the defendant pays the costs, obtains an order vacating the judgment, and goes back for a new trial of the action pursuant to the statute. But where such an undertaking, in addition to the usual provisions, contains a covenant that the sureties will pay “the value of the use and occupation” of the premises, the sureties are liable for such use and occupation during the pend-ency of the appeal.

      An objection that an action upon an undertaking has been commenced sooner than is permitted by the provisions of section 1309 of the Code of Civil Procedure cannot be taken for the first time upon an appeal.
    • Motion by the defendants, John Kehoe and another, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the verdict of a jury in favor of the plaintiff, rendered by direction of the court after a trial at the New York Circuit on the 13th day of June, 1894.

      George W. Stephens, for the plaintiff.

      Isaac N. Miller, for the defendants.
   O’Brien, J.:

This action is brought upon an undertaking given on an appeal to the General Term from a judgment entered on a verdict in favor of the plaintiff in an action of ejectment. The undertaking recites that the defendants “jointly and severally undertake that the appellant will pay all costs and damages which may be awarded against said appellant on said appeal, not exceeding five hundred dollars, and do also undertake that if the said judgment so appealed from or any part thereof is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment, or the part thereof as to which judgment is affirmed, and the value of the use and occupation and for waste, not exceeding fifteen hundred dollars.” On appeal to the General Term the judgment, so far as it included a recovery of mesne profits, was reversed, but otherwise affirmed. Plaintiff then appealed to the Court of Appeals, where the judgment of the General Term, so far as it modified the original judgment, was reversed, and that of the Circuit Court affirmed. Thereupon this action was commenced against the sureties on the undertaking, and after its commencement the defendant in the original action paid the costs included in the judgment, including all the costs of the appeal, and an order was thereupon entered vacating the judgments of the Circuit- Court and of the Court of Appeals, and an order for a new trial was made under the statute. On the new trial plaintiff again recovered substantially the same rate of damages as was allowed in the original recovery, including damages to the amount of $1,200 for the use of the premises during the pendency of the appeal.

The question presented,, therefore, is whether or not the obtaining of a new trial by the defendant in ejectment by the mere payment of costs under the statute will have the effect of discharging the sureties on appeal from all liability. Section 1309 of the Code of Civil Procedure provides that no action shall be maintained upon an undertaking until ten days have expired since the service upon the attorney for the appellant of a written notice of the entry of judgment affirming the judgment appealed from. It is conceded that this action was commenced before the ten days so provided for had expired, but we do not regard this as a good objection, because not raised below and not available for the first time upon appeal. It is insisted, however, that even had notice been given the action could not be maintained, because the defendant in the ejectment suit, for whom these defendants were sureties, having paid the costs and damages as provided in section 1525 of the Code of Civil Procedure, and obtained an order vacating the judgment, and having taken a new trial as allowed by the statute, the sureties were not liable, and this notwithstanding the fact that upon the new trial a judgment was obtained for substantially the same amount as in the original action, and also for the use and occupation of the premises during the time the appeal was pending.

Singular as it may appear, we have been referred to no text book or case in which the precise question here presented lias been discussed or decided, and we are, therefore, left to determine it as an original question. As such we think it should be disposed of in accordance with the agreement of the parties, which is to be found in the terms of the undertaking. The general principle upon which sureties are held liable is that they are only liable according to the terms of their obligation, and that whenever the principal is released they are released. Here the sureties specifically undertook to pay the judgment of the 21st of June, 1890, and they were affected by the judgment of the Court of Appeals only so far as it reinstated that judgment. Being thus sureties for a specific judgment, we think that whenever or by whatever means that judgment was vacated their liability ceased. The contention that, having once become sureties for the defendant they were sureties in the action, and, therefore, liable if the judgment was against the defendant finally, is without force.

These defendants were sureties to secure a specific judgment and were released when that judgment was vacated. It is clear that after paying the costs and securing a vacation of the judgment and a new trial, the original judgment could not be enforced against the principal, and it seems' reasonably certain that if the sureties had paid that judgment and the principal subsequently had it vacated, such sureties could not recover against their principal, for the reason that where the principal is not liable the surety cannot recover from the principal the money which he has paid.” (24 Am. & Eng. Ency. of Law, 191, and cases cited.) In the new judgment no reference was made to the prior one, nor could there have been, because the statute permitted the payment of the costs and damages and in an action of this kind entitled the party to a new trial. It may be a hardship that one who has obtained a judgment which has been secured by an undertaking on appeal is forced to lose such security because the statute permits the judgment to be vacated upon certain conditions and grants a new trial, but such hardship is to be obviated either by statute or by a provision in the undertaking which will provide against such a contingency and hold the sureties in the event that the person whose judgment is thus secured finally succeeds.

We think, however, that under the terms of the undertaking the sureties are liable for the value of the use and occupation of the premises during the pendency of the appeal. Their contract was to be liable for such use and occupation and for waste not exceeding §1,500, and where, as here, it has been finally decided and is conceded by the stipulation of the parties that such value amounts to §1,200, it is but right that the sureties should pay that amount in accordance with their agreement.

The exception to the direction of a verdict for the full amount should accordingly be sustained and the motion for a new trial granted, with costs to defendants to abide the event.

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

Exceptions sustained, motion for new trial granted, with costs to defendants to abide event.