text:
    MARY BURLING, Respondent, v. LUKE FREEMAN and others, Appellants.

      County Court—jurisdiction of—when objection to, must be taken.

    After an action has been tried in a County Court, a verdict rendered, and judgment entered thereon, a defendant" cannot move to set aside the judgment on the ground that it is not alleged in the complaint that the defendants were residents of the county in which the action was brought.
    Appeal from an order denying a motion to vacate a judgment entered in the County Court of Kings county, on the ground that the complaint did not allege that all the defendants resided in said county.

      Anthony Barrett, for the appellants.

      T. O’Connor, for the respondent.
   Barnard, P. J.:

The plaintiff commenced her action in the Kings County Court, against the defendants, to recover the possession of certain personal property, alleged to' have been taken by the defendants from her possession. The defendants answered, and made some issues with the plaintiff, but made no objection then that they were not residents of Kings county. The complaint was silent as to their residence. The case was tried by a jury, and the plaintiff received a verdict for her property, with costs. The plaintiff entered up judgment, and the defendants made this motion to the County Court, to set aside the judgment, because it must appear by the record that the defendants are residents in the county of Kings. We think it was properly denied. The County Court has, by the new judiciary article to the Constitution, jurisdiction in all cases where the defendants reside in the county, and the damages do not exceed $1,000. The defendants admitted the jurisdiction as to the persons of the defendants, by taking no objection by demurrer or answer, and by trying the case as if residents. Doubtless they were all residents of Kings county. One is averred to be a constable of the city of Brooklyn. It is too late, after trying the issue on the merits, without any objection to the jurisdiction of the court, to take the objection for the first time after judgment. Order affirmed, with ten dollars costs.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Order affirmed, with ten dollars costs.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    WILLIAM J. MINSHALL, Respondent, v. EDWARD G. ARTHUR, Appellant.

      Conversion—right of action for, not waived by silence—Receipt of dividend from, estate * of bankrupt—effect of.

    A firm, of which the defendant was a member, bought certain shares of stock for-the plaintiff. The firm subsequently failed, made an assignment, and sold the ■ stock. The plaintiff received a dividend under tire assignment made by the firm, the members of which were subsequently discharged under the bankrupt act. In an action brought for the conversion of the stock, held, that the plaintiff was entitled to recover. His right of action was not extinguished by his silence,' ■ upon being informed of the unauthorized sale of the stock, nor by tire receipt: ■ of the dividend, as it was not received with the intent thereby to extinguish the claim, or with knowledge that such would he its effect.
    Appeal from, a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      J. T. Mackenzie, for the appellant.

      Geo. E. King, for the respondent.
   Barnard, P. J.:

The firm of Aldrich, Sharpe & Company, of which firm defendant was one of the members, agreed to buy, and did buy, 100 shares of the Chicago and North-western preferred railroad company stock, in the spring of 1867, for the plaintiff. The plaintiff paid $1,000 to defendant’s firm, as margin. The stock declined, and plaintiff put up $500 more margin, in April, 1867, which he withdrew on July 8th, 1867. In the latter part of July, the defendant’s firm failed, made an assignment, and sold plaintiff’s stock. The plaintiff received a small dividend under defendant’s assignment, and the defendants were subsequently discharged under the bankrupt act.

The conversion of the stock is not denied; but the defendant seeks to defend this action upon two grounds: 1st. That the plaintiff has, since the conversion, waived the tort; and such being the fact, 2d. That the claim for the money has been discharged, under the bankrupt law. The plaintiff had a cause of action; has it been extinguished ? If it has not, he still has it. It was not extinguished by his silence, upon being informed of the unauthorized sale of the stock. There are cases where silence will conclude a party who suffers acts to be done inconsistent with his claim, and the rights of others are thereby prejudiced; but a failure to object after conversion, without his knowledge, is not such a case. The party has six years to enforce his claim. The receipt of the dividend of defendant’s assignee did not, of itself, extinguish the plaintiff’s claim. The dividend must have been received with the intent thereby to extinguish the claim, or with the knowledge of the fact, that the, receipt of the money would extinguish it. This question was submitted to the jury, and we think, under the evidence, the verdict of the jury cannot be set aside by an appellate court. Judgment affirmed, with costs.

Present—Barnard, P. J., Tappen and Talcott, JJ.

Judgment affirmed, with costs.


author: Tappen, J.:

text:
    JOHN FLANDERS and others, Respondents, v. MOSES ODELL, Appellant.

      Beferewse—when should not be ordered.

    "Where, in an action upon an attorney’s bill, the defenses interposed are, that the services are not worth the sum named; that the defendant did not make a contract to pay a sum certain; and payment; though it may, in many instances, he proper to refer the case to an attorney, yet, in some cases, it may he improper to compel the defendant to submit his defense to such a tribunal.

      Evans v. Kalbfleisch, (16 Abb. [N. S.], 13) followed.
    Appeal from an order made at Special Term, referring the cause to a referee to hear and determine.

      Close & Robertson, for the appellant.

      Ormsby, for the respondents.
   Tappen, J.:

The action is upon an attorney’s bill. The trial does not necessarily involve the examination of a long account between the parties, inasmuch as the defendant does not contest the items of expenditure, charged against him by the plaintiff. The defenses' that the services are not worth the sum named or claimed, and that the defendant did not make the contract to pay the plaintiff a sum certain, as set forth in the complaint, and that defendant has fully paid the plaintiff, are questions of fact, the decision of which will chiefly govern the final result. In an action of this nature, while it may be proper to send the case for trial to -an attorney, as referee, in many instances, yet it may also be proper, in some instances, not to compel the defendant to submit his defense to such a tribunal.

In Evans v. Kalbfleisch, where the. plaintiff (an attorney), averred a special contract, and also a quantum meruit, the Superior Court, at G-eneral Term, reversed the order of reference, and the grounds, reasoning and authorities will be found decisive in this case.

And for these reasons, as well as because the examination of a long account is not necessarily involved, the reference should not be ordered.

The order of Special Term, directing reference, reversed, with, ten dollars costs to abide event.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Order reversed, with ten dollars costs to abide event.

      16 Abb. (N. S.), 13.


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    WILLIAM C. WREN, Respondent, v. THE COSMOPOLITAN GAS COMPANY and another, Appellants.

      injunction — when sending of letters oi' circulars will not be restrained by.

    The plaintiff was the owner of several patents relating to the manufacture of gas, his process being known as ‘1 Wren’s process,”' “ Wren’s gas-works” and “ Wren’s process in making gas.” The defendant acquired the right, under another patent taken out by Mrs. Wren, plaintiff’s wife, to manufacture gas im the State of Massachusetts, by what is generally called “Wren’s patent' or process.”
    Letters were written by the defendant, to persons in the State of Massachusetts,who were negotiating with the plaintiff for the introduction of his gas-works,’• in the following form : “We are informed you are about negotiating for gasworks, under the ‘Wren’s patent or process we desire to inform you that your city and State are our territory, and none excepting our company, have any right or authority to dispose of, contract for or erect any works therein" ' under this process; any information you may desire in reference thereto, will be furnished you by application in writing (or in person) at the office of the-company.”
    In an action brought by the plaintiff to restrain the publication and sending of such letters, held, that he was not entitled to recover. That the letters meant no more than that the defendant would not permit infringements of its patent.
    Appeal from an order continuing an injunction granted in this action. . i ;

      Steele & Boyd, for the appellants.

      B. E. Valentine, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.


text:
    WILLIAM H. JENKS and another, Respondents, v. CHARLES H. PARSONS, Impleaded with others, Appellant.

      Complaint in action for specific performance—when insufiicient.

    This action is brought to enforce a mechanic’s lien, filed against the defendant S. M. Parsons, who is alleged to be the owner of the premises, and the defendant Edward K. Robins, who is alleged to have built houses thereon by permission of the said owner. The complaint then alleges that “ Charles H. Parsons has, or claims to have, some interest in said premises as owner thereof; and that at the time of filing said notice of lien, he was under a contract with the defendant Samuel M. Parsons, to convey said interest to the said Samuel M. Parsons, or his legal representatives; ” and asks that Charles H. Parsons be enjoined from conveying his interest in the premises until the further order of the court, and that the purchaser at the sale, under the judgment in this action, be entitled to a specific performance of the contract made by the said Charles H. with Samuel M. Parsons.
    Upon a demurrer interposed by the defendant Charles H. Parsons, held, that the complaint did not, as to him, state facts sufficient to constitute a cause of action. That the complaint should have alleged not only a legal contract to convey, but facts entitling the grantee to a deed under it, such as performance or readiness to perform its conditions.
    Appeal from an order overruling a demurrer interposed by the defendant Charles H. Parsons.

      S. M. Parsons, for the appellant.

      John R. Kuhn, for the respondents.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Order reversed, with leave to plaintiff to amend in twenty days on payment of costs.


text:
    ROBERT MILLER, Respondent, v. ANDREW COATES and BERKELEY MOSTYN, Appellants.

      Several defendants appea/ring by one attorney — when entitled to separate bills of costs.

    The defendants herein, appearing by the same attorney, separately demurred to the complaint; at Special Term the plaintiff had judgment bn the demurrer, as to one defendant, with costs; the other defendant had judgment against the plaintiff, upon the demurrer, with costs.
    The plaintiff appealed from the judgment against him to the General Term, which affirmed the judgment with costs. The defendant, whose demurrer was overruled, also appealed to the General Term, which reversed the decision of the Special Term, with costs. The Special Term refused to allow the defendants to tax separate bills of costs. Held, that this was error. The General Term have settled, as to the present case, the rights of the parties to costs, and there is no power in the Special Term to modify the General Term order, so long as it stands unreversed.
    Appeal from an order made at Special Term denying defendants’ application to tax two bills of costs in this action.

      James M. Varnum, for the appellants.

      Henry S. Bennett, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Order reversed, with costs.


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    GEORGE W. HAWKINS, Appellant, v. DANIEL C. MACY, Respondent.

      Testimony talcen by consent — when may be read in evidence.

    Previous to a former trial, had in this action, the testimony of a witness was taken by consent, under the following stipulation: “We consent that the foregoing testimony * * be read on the trial of the above entitled actions, subject to objections as aforesaid, and also subject to the legal objections to the particular questions * * and it is hereby stipulated that either party-may use the foregoing testimony and exhibit, subject to said legal objections, in each of the foregoing actions, on trial.”
    At the first trial the witness was present', sworn and examined. At the second, the justice refused to allow the deposition to be read in evidence, on the grounds that the party offering it was bound to prove the inability of the witness to attend on the trial, and that the stipulation applied to the first trial alone. On appeal, held, that the rejection of the evidence was error.
    Appeal from a judgment in favor of the defendant, and from an order denying a motion for a new trial.

      Smith & Stanbrough, for the appellant.

      Strong & Spear, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., and Donohue, J.

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


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    In the Matter of the TRUSTEES OF THE VILLAGE OF COLLEGE POINT, Respondents, v. ALBION K. P. DENNETT, and others, Appellants.

      Commission to take land—what evidente admissible to show value of.

    The respondents instituted proceedings, under chapter 609, Laws of 1873, to acquire the right to divert and use a portion of the water flowing into a lake owned by the appellants. Upon the hearing before the commissioners, the appellants, in order to show the value of the lake as a source of water supply to cities and villages, asked a question, to show that but one other pond, suitable for such a supply, existed within a radius of six miles. This question was objected to and excluded. Upon appeal from the order confirming the . report of the commissioners, held, that the rejection of this evidence was error. The commissioners could not limit the value of the pond proposed to be taken, to what it was worth as a mill pond or as an ice pond; if- it had a greater value for any other purpose, the owners were entitled to receive such value for it.

      Appeal from an order, confirming the appraisal and report of the commissioners in the above proceeding.

      L. Bradford Prince, for the appellants.

      E. B. Hinsdale, for the respondents.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Report set aside, and new appraisal ordered.


text:
    SILAS J. OWEN, Appellant, v. MARY JANE GRIFFIN, Respondent.

      Ma/nied woman — retainer of attorney by—when liable for services performed by.

    The plaintiff was employed, as an attorney, by the defendant to prosecute an action for a limited divorce against her husband, and to obtain alimony and support for herself and her child, and also tp set.aside an ante-nuptial agreement made by her with her husband. The suits were settled by the defendant, in violation of an agreement made with the plaintiff, and without his assent; $4,000 being placed in the hands of a trustee for the support of the defendant and her child. In an action brought by the plaintiff to recover for the seryices ' rendered in these suits, held, that the services of the plaintiff were rendered in . creating ,a separate estate for the benefit of the defendant, and that he was entitled to recover. :
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      Silas J. Owen, for the appellant.

      C. Frost, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ. ‘

Judgment reversed and new trial ordered, costs to abide event,


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    In the Matter of GEORGE F. WING, a Lunatic.

      Vommitiee of lunatic — when leave to sue should be granted — 1light of access to lunatic.

    Leave to sue the committee of the estate of a lunatic, should he granted, when the party applying for such leave shows a case upon which a court of equity would grant relief, if the claim should be established on the trial.
    By an order of this court, the petitioner, the wife of the lunatic, was to be allowed access to her husband once a week. The committee subsequently removed the lunatic out of the State. Held, that the committee should be required to produce the lunatic once a week, within this State, in some place easily accessible to the petitioner, and that she be allowed free access to him.
    Appeal from an order made at the Special Term, denying a motion for leave to bring a suit against the committee of the lunatic.

      S. B. Higenbotam, for the appellant.

      Abel Crook, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Order modified, so as to allow the petitioner to bring her suit and have access to her husband ; Tappen, J., dissenting, unless security be required.


text:
    In the Matter of the Petition of CHARLES SHAPER and another, v. The Estate of GEORGE F. WING, a Lunatic.

      ZntnaMc — estate of— when liable for necessaries furnished to him.

    In July, 1873, George F. Wing was declared a lunatic, and a committee of his estate was appointed; after which he continued to reside with his family in Brooklyn. The petitioners, after the appointment and in ignorance thereof, sold to the lunatic groceries to the amount of $358.67, such groceries being necessary for him and being used in his family. Held, that the bill of the petitioners should be paid out of the lunatic’s estate.

      Appeal from an order denying a motion to confirm the report of a referee, which recommended the payment of the petitioners claim, out of the estate of Geo. F. Wing, a lunatic.

      F. P. Bellany, for the appellant.

      Abel Crook, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., and Donohue, J.

Order reversed, with ten dollars costs, and report confirmed, with ten dollars costs.


text:
    THE PEOPLE ex rel. JOHN MANN v. JACOB MOTT and others, Respondents.

      Commissioners to assess damages for laying out roads—powerrs of—when expended.

    After the commissioners, appointed by the County Court to assess the damages occasioned to owners of land by the laying out of a highway, have met together, agreed upon and signed an assessment, and have delivered the same to a commissioner of highways, who has filed the same in the town clerk’s office, they have no power to meet again to review such assessment, or to correct errors therein.
    Certiorari to review the decision of a jury, on appeal from an assessment by commissioners appointed to assess the damages occasioned by laying out a highway in the town of Greenburgh, Westchester county.

      J. O. Dykman, for the relator.

      C. Frost and L. T. Yale, for the respondents.
   Opinion by Barnard, P. J.

Present —Barnard, P. J., Tappen and Talcott, JJ.

. Proceedings for assessment by jury, as to relator, reversed with costs.


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    WILLIAM H. PAYNE and another, Respondents, v. THE KINGS COUNTY MANUFACTURING COMPANY, Appellant.

      Answer — admissions contained in, cannot be read upon trial, after service of an amended answer.

    After the service of an amended complaint and answer in an action, it is irregular for the plaintiffs counsel, in summing up the case, to read the admissions contained in the answer to the original complaint. But a judgment will not be set aside on the ground of such irregularity, when the facts so admitted are conclusively proved by other evidence.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      C. W. Pleasants, for the appellant.

      Abbott Brothers, for the respondents.
   Opinion by Tappen, J.

Present—Barnard, P. J., Tappen and Talcott, JJ.

Judgment affirmed, with costs.


text:
    SAMUEL PECK, Respondent, v. AMELIA SCHENCK, Executrix, etc., of JOHN P. SCHENCK, Deceased, Appellant.

      Statute of limitations.

    On the 31st of December, 1850, defendant’s testator delivered to his son, Linn®us, a bond for $1,400, executed by himself, payable after his death, without interest. On the 1st of December, 1856, Linnmus gave his note, payable one day after date, to the plaintiff for $300, and, to secure the payment of the same, assigned to him the said bond. Linn®us died on the 30th of May, 1863, and his father on the 7th of September, 1873. In an action upon the bond, the defendant interposed the statute of limitations. Held, that the claim was not barred thereby. The plaintiff, as against the defendant’s estate, owned the whole bond, and must collect the whole and account to the estate of Linn®us for the balance over the debt and interest.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      H. H. Hustis, for the appellant.

      James L. Williams, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Judgment affirmed, with costs.


text:
    MARY MOHRMANN, Respondent, v. EDWIN G. BUSH, Impleaded with others, Appellant.

      Referee—trial before— notice of— when insufficient.

    Upon the trial of an action before a referee, a defendant is entitled to fourteen days’ notice of trial, and a judgment entered without such notice, unless the same has been waived, is irregular, and will be set aside.
    Appeal from an order of the Special Term, denying a motion to vacate a judgment on the ground of irregularity.
    -, for the appellant.

      Albert Smith, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Order reversed with ten dollars costs, and ten dollars costs of motion below.


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    JANE WELSH and EMMA SKINNER, Respondents, v. FERGUS COCHRAN and others, Appellants.

      Married woman—property purchased by—when protected by court of equity.

    Property purchased, by a married woman, with money which she had in England prior to her marriage, will be protected, by a court of equity, from her husband, and be used for her support.
    When the wife uses such money in the purchase of property, her husband mating no objection thereto, and takes the title thereto in her own name, she acquires a legal title, which her husband’s creditors cannot gainsay or question.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial.

      A. C. & M. H. Ellis, for the appellants.

      Oscar Frisbie, for the respondents.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Judgment and order denying new trial affirmed, with costs.


text:
    MARY C. PORTER, v. WILLIAM M. PARKS and BENJAMIN G. SMITH.

      Case—power of General Term to corred.

    “ I know of no practice which will justify this court, at General Term, in correcting the case as settled, on a motion.”
    Motion to correct case, by inserting the specific objection proposed to the admission of certain evidence. The opinion of the General Term in this case is reported emte, at page 654.
   Opinion by Barnard, P. J.

Present—Barnard, P. J., Tappen and Talcott, JJ.

Motion denied without costs.


text:
    THOMAS BRYSON, Respondent, v. BERNARD SHERIDAN, Appellant. THOMAS BRYSON and another, Respondents, v. BERNARD SHERIDAN, Appellant.
    Appeals from orders made at the Special Term, denying motions to set aside the judgments-entered in the above entitled actions.
    The judgments were entered in pursuance of a stipulation entered into by the attorneys of the respective parties, in open court and in the presence of the defendant. The motions were made on the ground that the defendant did not fully comprehend the nature and effect of the agreement. The General Term affirmed the orders, holding that upon the appeal papers it was impossible to doubt that the basis of the judgment was fully understood and assented to by the defendant.

      Edward M. Shepard, for the appellant.

      F. A. Ward, for the respondent.
   Opinion by Talcott, J.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Order affirmed with costs.


text:
    LEWIS C. VERNOL, Appellant, v. THOMAS VERNOL, Respondent.
    Appeal- from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    The General Term held that evidence did not sustain the allegations of the complaint, and affirmed the judgment of the court below dismissing it.

      John Miller, for the appellant.

      Cassedy & Brown, for the respondent.
   Opinion by Tappen, J.

Present — Barnard, P. J., Tappen and. Talcott, JJ.

Barnard, P. J., dissented.

Judgment affirmed, with costs.


text:
    CHARLOTTE E. BROWN, Appellant, v. HENRY BROWN, Respondent.
    Appeal from an order of the Special Term, vacating a judgment of divorce and allowing the defendant to come in and answer.
    The summons in the action was served by publication. The General Term held that it appeared from the papers on which the motion was made, that the defendant knew of the action and designedly omitted to answer, and that this application should therefore have been denied.

      Charles W. Dayton, for the appellant.

      H. F. Anderson, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Order reversed, without costs.


text:
    JAMES C. HOLDEN and others, Appellants, v. JOHN W BURNHAM and others, Respondents.

      Conveyance to wife—when not fraudulent as against creditors.

    The plaintiff was a judgment creditor of John W. Burnham, and brought an action to subject to the payment of his debt, certain real estate, the conveyance of which had been taken to said Burn-ham, with the promise on his part to convey it, whenever requested, to his wife, by whom the property was paid for, and who had carried on therein the business of a boarding-house, and had paid taxes on the property. John W. Burnham, prior to the recovery of the judgment in question, had conveyed the property to his wife. The plaintiffs’ claim was not contracted on the strength of John W. Burnham’s ownership of the property. The referee found that the conveyance to the defendant’s wife was effectual and valid as against the plaintiff, and the General Term affirmed the judgment entered on such finding.

      S. H. Thayer, for the appellants.

      Wilcox & Hobbs, for the respondents.

       Siemon v. Schurck, 29 N. Y., 598; Davis v. Graves, 29 Barb., 480; Woodworth v. Sweet, 51 N. Y., 8; Foote v. Bryant, 47 id., 544; Claflin v. Welch, 51 id., 626; Baldwin v. Ryan, 3 N. Y. Supreme Ct., 254.

   Opinion by Tappen, J.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Judgment affirmed, with costs.


text:
    WM. P. BENSEL, Receiver, etc., of The New York and Pennsylvania Blue-stone Company, Respondent, v. JOHN GALT and others, Appellants.

      Reference where fraud is alleged—when ordered.

    This was an appeal from an order of reference, made in the above entitled action, at the Kings county Special Term.

      A contract was entered into "between the Hew York and Pennsylvania Blue-stone Company and the defendants, for the purchase of certain stone for the defendants. The plaintiff alleged that the defendants kept false accounts, and sought to recover a balance alleged to be due upon a true statement of the account. The order of reference of the whole issue was made upon the plaintiff’s stipulating to claim, on the trial, only the amount received by the defendants in excess of the contract. Upon this state of facts, the court was of opinion that nothing was left to be investigated, but a mere account of moneys received by the defendants, according to a true and just statement of the account.

      Fullerton, Knox & Crosby, and E. A. Brewster, for the appellants.

      E. Louis Lowe, for the respondents.
   Opinion by Talcott, J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Order affirmed, with ten dollars costs of appeal.


text:
    FREDERICK K. SCOFIELD and others, the Board of Education of School District No. 3, of the Town of Fishkill, Appellants, v. JOHN McGREGOR, Respondent.
    Appeal from a judgment in favor of defendants, entered at the Dutchess county Circuit. The action was upon a contract made by the defendant to do certain work in constructing a school-house, which work, it was alleged, he had failed to perform. A dispute arose between the parties while the work was going on, for the purpose of settling which, the matter was referred to one Shurter, by an agreement in writing. The defendant claimed that he was discharged from the further performance of his contract at the time of the execution of the submission. The question was submitted to the jury, “Did the trustees, at the time of the execution of the submission to Shurter, agree to release McGregor from the further execution of the contract ? ” This question the jury answered in the affirmative, which finding the court considered was made upon satisfactory evidence, and in accordance with the true intent and understanding of the parties, and affirmed the judgment.

      Anthony & Losey, for the appellants.

      H. H. Hustis, for the respondent.
   Opinion by Talcott, J.

Present — Talcott and Tappen, JJ.

Judgment affirmed.


text:
    THE KNICKERBOCKER LIFE INSURANCE COMPANY, Respondent, v. CHARLES A. HILL, THOMAS IREMONGER and others, Appellants.
    This was an appeal from an order-made by Mr. Justice Tappen, at Special Term, appointing a receiver of the rents and profits of mortgaged premises, after default and pending a foreclosure, upon an express stipulation, contained in the mortgage, that the mortgagees should be entitled to such receiver, as a matter of right, after a default and upon the commencement of proceedings to foreclose. The defendants alleged, on information and belief, the invalidity of the mortgage, on account of usury. The court was of opinion that it was a sufficient reason for affirmance, that the defense was not positively sworn to.

      John H. Bergen and Philip Reilly, for the appellants.

      H. W. Johnson, for the respondent.
   Opinion by Talcott, J.

Present — Barnard, P. J., and Talcott, J.

Order affirmed, with ten dollars costs of appeal.


text:
    GERMAN SMITH, Respondent, v. E. P. BELDEN, Impleaded with E. LEWIS, Appellant.
    Appeal from an order refusing to set aside an inquest taken at the Westchester Circuit.
    A motion was made at the circuit to postpone the trial, which was refused. The plaintiff, on full notice to the other side, on the next day after the refusal to postpone, took the inquest. The court was of opinion that the motion was properly decided on the merits, and that the object of the defendant was to procure delay.

      H. Brewster, for the appellant.

      W. H. Townley, for the respondent.
   Opinion by Talcott, J.

Present — Barnard, P. J., and Talcott, J.

Order affirmed, with ten dollars costs.


text:
    JOSEPH B. DALEY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Evidence of wife against husband—when objection must be taken.

    Certiorari to review the conviction of the plaintiff in error by a police justice of the city of Brooklyn for an abandonment, and for a threatened abandonment of his wife, in pursuance of chapter 395, Laws of 1871.
    It was alleged, as a ground of error, that the wife of the accused had been allowed to testify against him. The General Term held that as she was sworn as a witness without objection, it was too late, after conviction, to raise the point.

      Dailey & Perry, for the plaintiff in error.

      Wm. J. Dainty, for the people.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Tappen, J., dissented.

Proceedings and conviction affirmed, with costs.


text:
    CYRUS O. BAKER, Respondent, v. JOHN ARNOT, Jr., Executor, etc., Appellant.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial. The G-eneral Term reversed the judgment on the ground that the court had submitted to the jury a question, when the evidence in the case was not sufficient to justify it in so doing.

      Ira Shafer, for the appellant.

      Jos. P. Osborne, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Tappen, J., dissented.

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


text:
    WILLIAM E. ROBINSON, Respondent, v. CHARLES H. KALBFLEISCH and others, Executors, etc., Appellants.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The General Term reversed the judgment on the ground that the findings of the referee were not supported by the evidence.

      Edgar M. Cullen, for the appellants.

      W. E. Robinson, respondent in person.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Judgment reversed and new trial granted; question of costs to be settled after new trial.


text:
    JULIA WOODWARD, Respondent, v. HENRY BUGSBEE, Appellant.
    Application for leave to go to the Court of Appeals. The decision of the General Term in this case is reported in 2 Hun, 128. The General Term denied the application on the ground that there was no principle involved in the case of sufficient importance to justify its being carried to the Court of Appeals.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Application denied, with ten dollars costs.


text:
    THE CHAPMAN SLATE COMPANY, Appellant, v. ELI SUTCLIFFE, Respondent.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    In the opinion of the General Term in this case questions of fact alone, are discussed.

      Shaw & Jeroloman, for the appellant.

      O. D. M. Baker, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Judgment affirmed, with costs.


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    WILLIAM G. WATSON and EDWARD J. WATSON, Respondents, v. THE WEED SEWING MACHINE COMPANY, Appellant.
    In this case the court reviewed the evidence, and, upon the whole case, thought justice would be best subserved by granting a new trial.

      Frederick A. Ward, for the appellant.

      David Crawford, for the respondents.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Talcott, JJ.

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


text:
    JOHN SMITH and JOSEPH FIESEL, Respondents, v. THE EAST RIVER FERRY COMPANY, Appellant.
    Appeal from a judgment in favor of the plaintiffs, entered in an action brought against the defendant for the death of the plaintiffs’ horse, occasioned by the alleged negligence of the defendant. The court was of opinion that the appeal presented no questions of fact; that the verdict was in accordance with the evidence; and that the parts of the charge excepted to, were in accordance with the settled rules of law.

      John Berry, for the appellant.

      James W. Covert for the respondents.
   Opinion by Talcott, J.

Present — Barnard, P. J., and Talcott, J.

Judgment affirmed.


text:
    In the Matter of the TRUSTEES OF COLLEGE POINT, Respondents, v. JAMES LAWRENCE, Appellant.
    Appeal from an order confirming the report and appraisal of commissioners, appointed pursuant to chapter 609, Laws of 1873.
    The principal point involved in this appeal was the value of the land taken. The General Term refused to interfere with the determination of the commissioners.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., and Talcott, J.

Order affirmed, with costs.


text:
    ROBERT YATES, Respondent, v. JOHN SAMMOND, Appellant.
    Appeal from a judgment entered in favor of the plaintiff upon the report of a referee.
    This case depended entirely upon a question of fact. The court at General Term was of opinion that the testimony was sufficient to uphold the referee’s findings, and affirmed the judgment.

      J. S. L. Cummins, for the appellant.

      Abel Crook, for the respondent.
   Opinion by Tappen, J.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Judgment affirmed, with costs.


author: Per Curiam :

text:
    Ann E. Crumbie, Respondent, v. The Manhattan Railway Company, Appellant.

      1Evidence talcen on an unauthorized interlocutory reference — cannot be read upon the trial if objected to — what is not a waiver of the objection.

    When, upon the trial of an action, one of the parties thereto seeks to read evidence which has been taken before a referee in a manner not provided by law, the adverse party, although he has appeared and participated in such examination before the referee, has the right to object to its introduction, and the overruling of an objection thus taken is erroneous.
    Appeal by the defendant, The Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of July, 1891, upon the report of a referee.
    The issues in this action came on for trial eá¡ a Special Term of the Supreme Court, held at the city of New York, at which, after certain evidence had been offered by the plaintiff and received, “the' court at this juncture suspended the trial of this case and announced that an interlocutory order of reference would be entered by the court of its own motion herein, to a referee to be named by the court.
    “Defendant’s counsel asks to have the right reserved to defendant to offer any proof relating to the title of these premises, mortgages or incumbrances, at a subsequent stage of the case, as he is not possessed of information on that subject at present.

      “ The Court: I will refer the question of incumbrances on the premises to the same referee, so th§,t if you wish you may offer it before him.”
    An order was then entered referring the case to the referee “ to take testimony as to the amount of damage, if any, suffered by the plaintiff by reason of the maintenance and operation by the defendant of its elevated railway in front of the plaintiff’s premises, and to report the same to the court with his opinion thereon, and also to take testimony and report with his opinion thereon as to the value of the plaintiff’s property taken or appropriated by defendant for the maintenance and operation of its railway in front of said premises.”
    It was further ordered, “ that upon the filing of said report in the office of the clerk of this court, either party may apply to the court upon eight days’ notice for the continuation and closing of the trial of the above-entitled action and for judgment therein.”
    Under said interlocutory order of reference proceedings were had and witnesses were examined before the referee named therein.
    Subsequent to said proceedings before said referee, the latter made and filed his report and findings on the l'Tfch day of June, 1893, which 23urported to constitute an award or decision in favor of the plaintiff. Plaintiff thereafter moved under the foregoing order of reference for the continuation and closing of the trial of this action, and for judgment therein. Said motion was granted by ■fche fudge before whom it was made, and pursuant to such direction this case came on for a continuation of the trial on the 26th day of October, 1893, and the following proceedings were had thereupon:
    Plaintiff’s counsel offered the evidence taken before the referee and rested.
    Counsel for defendant objected to the admission of said record or testimony in evidence upon fche ground that it was incompetent and hearsay, and ujion the further ground that the order oí reference under which it is taken is void, and upon the further ground that the admission of said record or testimony taken under said order of reference would deprive the defendant of its constitutional right to have the testimony taken in equity eases in the same manner as in actions at law.
    The court overruled the objection, and counsel for defendant duly excepted.
    Counsel for defendant then moved the court to dismiss the complaint upon the ground that the plaintiff had failed to prove facta sufficient to constitute a cause of action against the defendant.
    The court denied the motion, and counsel for the defendant duly excepted.

      Julien T. Davies and A. O. Townsend, for the appellant.

      H. G. Atwater, for the respondent.
   Per Curiam :

It now seems to be well settled that the court should not make such an order of reference as was made in this case. Upon the trial the defendant had the right to take the objection that the evidence sought to be introduced had not been taken according to law.

Suppose a party participates in a de bene esse examination, unless the evidence is certified to the court according to law such evidence cannot be used upon a trial. The party does not waive these statutory requisites by appearance upon the taking of the testimony. So, in the case at bar, when it was sought to read upon the trial the evidence whicli had been taken in a manner not provided by law, the appellant had a right to object to its introduction, and the •overruling of such objection was error.

The judgment appealed irom must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present — Van Brunt, P. J., Parker and Pollett, JJ.

Judgment reversed, new trial ordered, costs to appellant to abide •event.


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    Mary M. Whiting, Respondent, v. The Standard Gas Light Company, Appellant.

      Beview of questions of fact — the “case” must state that it contains all the evidence.

    Although, the court on an appeal from a judgment may he inclined to the view that excessive damages were awarded by the verdict of a jury, it will not interfere with the judgment rendered if the record does not show that the case on appeal contains all the evidence.
    Appeal by the defendant, The Standard Gas Light Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of May, 1891, 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 29th day of May, 1891, denying the defendant’s motion for a new trial made upon the minutes.

      Hen/ry Thornpson, for the appellant.

      T. MeOcmts /Stewart, for the respondent.
   Per Curiam :

There was such evidence of negligence on the part of the defendant, and absence of contributory negligence on the part of the plaintiff, as justified the submission of the case to the jury.

The appellant contends that excessive damages were awarded by the verdict. If we were inclined to the view that the evidence before us would justify such contention, still we could not interfere with the judgment because the record does not inform us that it contains ail the evidence.

The judgment and order appealed from should be affirmed, with costs.

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

Judgment and order affirmed, with costs.


author: O’Brien, J.:

text:
    David M. Blaustein, as Administrator, etc., of Jennie Blaustein, Deceased, Respondent, v. Eugene W. Guindon and Another, Appellants.

      Unloading a truck in a city street — injury to a pedestrian on the sidewalk — the damages should be determined by the jury — contributory negligence — review of questions of fact by the Genen'al Term.

    Although a person has a right to unload hogsheads from a truck on a street in the city of New York, he is nevertheless bound to exercise such reasonable care and prudence in so doing as not to injure persons lawfully passing on the sidewalk. This can be done either by letting the hogsheads down with ropes or by having men enough to ease them down, or, if it is intended to roll the hogsheads from the truck into a factory, by having some one stationed at the place to warn pedestrians of the danger.
    A pedestrian has the right to pass over the sidewalk of a city street, and may assume that she will not be subjected, without warning or signal, to the danger of having a hogshead thrown against her from a truck. She has no reason to anticipate that, just as she is passing by a truck loaded with hogsheads, the driver thereof will let a hogshead roll down upon her, and, although she has knowledge of the presence of the truck, it is a question for the jury to determine, upon the trial of an action brought to recover damages resulting from her death by reason of the alleged negligence of the owner of the truck, whether her passing between the ends of the skids attached to the truck and the building into which the hogsheads were being rolled was an act of negligence which in any way contributed to her death.
    When the amount of damages to be awarded in an action presents a question of fact for the jury to determine from all the evidence given and the rulings of the court made upon the trial, the General Term, in the absence of a statement contained in the case upon appeal that the pase contains all the evidence, is precluded from reviewing such'question of fact.
    Appeal by the defendants, Eugene "W. Guindon and another, 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 29th day of March, 1894, 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 23d day of April, 1894, denying the defendants’ motion for a new trial.

      Allen W. JEEoddawt and Arthwr D. Williams, for the appellants.
    <2. Wa,shbourne Smith, for the respondent.
   O’Brien, J.:

This action was brought to recover damages for the death of Jennie Blanstein, the plaintiff’s intestate, caused by the alleged negligence of a servant of the defendants.

On or about the 2d day of September, 1892, certain casks of salsoda were being unloaded from a wagon or truck belonging to defendants at a soap factory on Munroe street, between Rutgers and Pike streets, in the city of New York. The driver had backed up the truck in front of the open doorway of the factory through which the hogsheads were to be rolled. The rear wheels stood two feet in on the sidewalk, which was fifteen feet wide. The driver had attached to the end of the truck a pair of skids, which were about six feet long, the lower end of which rested upon the sidewalk, leaving a space of three or four feet between the ends of the skids and the front edge of the building. There were four or five of these large hogsheads lying down on the truck. Before the accident one hogshead had been let down, and it was the second hogshead that rolled from the truck that killed the child.

Plaintiff’s intestate was a little girl of the age of twelve years and ten months, and at the time of the accident was walking in an easterly direction on the sidewalk of Munroe street, when, in passing between the ends of the skids and the factory, she was struck by a hogshead of sal-soda weighing 1,300 pounds, which rolled from the truck and over her, causing death. At the time of the accident the driver was standing upon the truck with liis back towards Pike street, and was stooping over with his face downwards just at the time the little girl was passing between the ends of the skids and the building, and at that instant the driver took the chock from under the hogshead, so that, in the language of the driver, it “ rolled down the skids as quick as lightning.”

It is not claimed that any ropes or chains were used to let the hogshead down, nor were any danger signals used, nor any one star tioned to give notice or warning, and instead of permitting tlie hogsheads to slide down endwise, which it was testified had been the custom of the driver on other occasions, on this, as it would appear, in order to save labor, he let the hogshead roll down as fast as it would go, so that it would roll a long way inside the factory.

At the close of plaintiff’s case a motion to dismiss the complaint was made, upon tlie ground that there was no evidence of defendants’ negligence, or freedom from contributory negligence on the part of plaintiff’s intestate. These motions were denied, and at the end of the entire case were renewed and again denied, to which denials proper exceptions were taken, and it is upon these exceptions that the substantial questions presented by this appeal rest.

"We think it was clearly a question for the jury as to whether the acts of the defendants’ driver in unloading the truck were or were not negligent. Although the, defendants had the right to unload the hogshead from the truck, they were bound to exercise reasonable care and prudence in so doing so as not to injure persons lawfully passing along the sidewalk. And this could have been done, either by letting it down with ropes or by having men enough to ease it down, or if it was intended to roll it from the truck into the factory, by having someone stationed to warn pedestrians of the ‘danger. After neglecting to adopt any such means of safety, then to argue that upon such evidence no question as to defendants’ negligence was presented is to fail to recognize the force of facts and the obligations imposed upon those using the public streets in respect to pedestrians.

The little girl had an undoubted right to pass over the sidewalk, and while so passing, without notice or warning, she was struck by this heavy hogshead, which was rolled from the truck in a manner to preclude the possibility of her escape, even if she had seen it after it started, the testimony showing that the rapidity with which it left the truck gave to the hogshead a' momentum sufficient, if unimpeded, to carry it inside the factory Such conduct is as wanting in care as that of one who, without warning or signal of any kind, and without regard to the presence of pedestrians on the sidewalk, would hurl a barrel or brick or any bulky or dangerous missile from the windows of a building upon the sidewalk.

So with respect to the question of freedom from negligence of plaintiff’s intestate. She had the right to pass over the sidewalk, and was right in assuming that she would not be subjected, without warning or signal, to the danger of having thrown against her a hogshead from a truck, any more than that she would be subjected to danger from some heavy or dangerous missile thrown from a window into the street. She had no reason to anticipate that just as she was passing by the driver would let the hogshead roll down upon her, and though she had knowledge of the presence of the truck, it was for the jury to determine whether her passing between the ends of the skids and the building was an act of negligence which in any way contributed to her death.

, In addition to these exceptions, which wre do not regard as well founded, another one is presented, based upon the alleged error of* the .court in admitting, over defendants’ objection and exception, certain testimony. The driver had been examined in chief by the defendants, and upon cross-examination he was asked the following question: “ Q. So if a person was, say, one or two feet away from your skid at the instant you pull the chock out from under it, he could not get by it before he was struck, could he % ” This was’ objected to as calling for a conclusion, the objection was overruled and the defendants took an exception, and the witness answered : “Yes, it went down fast.” We do not think that in this any serious error was committed, for the reason that it was the cross-examination of the defendants’ witness and the answer given was not responsive, but such as it was it was permitted to stay, no motion having been made upon this ground to strike it out. The question thus asked, however, was immediately afterwards answered, and when repeated no objection was made to it, and the answer was elicited without objection.

Another ground urged is that the damages were excessive. This, upon all the evidence and the rulings of the court, was a question of fact for the jury, which we are not in a position upon this record to review, because the record has no statement that the case upon appeal contains all the evidence, and it has ^been many times held that in the absence of such a statement this court is precluded from reviewing any question of fact. (Randall v. N. Y. El. R. R., 76 Hun, 427; Koehler v. Hughes, 73 id. 167; Aldridge v. Aldridge, 120 N. Y. 616.)

We think that the judgment is right and that it should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    Paul C. Grening, Appellant, v. George Malcom, Respondent.

      Statement that a case on appeal contains “all the testimony” — questions of fact not reviewed, — granting or refusing motions for new trials discretionary — when, tin decision of the triad judge will not be interfered with.

    IVliere a case upon appeal has no statement that it contains all the evidence, the General Term is precluded from reviewing questions of fact, and the statement in the case that it “ contains all the testimony taken on the trial of this action” is insufficient, and is not equivalent to the statement that the case contains all the evidence.
    The mode of ascertaining the value of testimony is mainly by the manner of its delivery, the apparent candor and sincerity of the witness, or his manifest simulation and dissimulation. Of this decisive test of truth the trial court has full advantage, and on appeals from orders granting or refusing new trials, upon a claim that the verdict rendered by the jury is against the evidence and the justice of the case, the decision of the trial judge is of the weightiest influence.
    The granting or refusal of a new trial on the minutes is largely a matter resting in the discretion of the judge who presided at the trial, and an order of a trial judge setting aside the verdict of a jury as against the evidence will be reversed on appeal only for an abuse of discretion to the prejudice of justice.
    Appeal by the plaintiff, Paul O. Grening, from an order of the Supreme Court, made at the New York Circuit and entered in the ■office of the clerk of the county of New York on the lYth day of May, 1894, setting aside the verdict of a jury and directing a new trial of the action.

      Bicha/rd T. Greene, for the appellant.

      Edward J). Bettens,' for the respondent.
   O’Brien, J.:

The action was brought to recover $9,919.50, the value of plaintiff’s services rendered as a broker in obtaining for the defendant the sum of $150,000, which services consisted in promoting, organizing and perfecting a brewery company, and in negotiating and ■selling certain of its securities. The performance of some service was admitted, the value alone being placed in dispute, and upon this issue as to the value of such services the question was submitted to the jury. The jury found in plaintiff’s favor for $Y,000, which was then and there set aside and a new trial ordered. It is from this order that the plaintiff has appealed, insisting that as there was no exception taken to the submission of the question, or motion made either to dismiss the complaint or for the direction of a verdict, the court could not set aside the verdict as contrary to law if there was any evidence to sustain iff

Upon the rule of law thus invoked the appellant confidently appeals to the evidence as furnishing sufficient basis for the amount of the verdict. In this connection, however, it is to be noticed that the case on appeal has no statement that it contains all the evidence, but only a statement that it “ contains all the testimony taken • on the trial of this action.” This is insufficient, it having been held that such a statement “ is not equivalent to the statement that the case contains all the evidence, and in the absence of the latter statement the General Term is precluded from reviewing questions of fact. (Randall v. N. Y. El. R. R. Co., 76 Hun, 427.) To avoid this question being presented to us again, and assuming that all the evidence most favorable to the plaintiff is contained in the case, we have examined it witli a view of determining whether the appellant’s position is correct in holding that it was reversible error in the trial court to set aside the verdict.

The testimony offered by plaintiff as to the character of his services and the value placed thereon by himself and his experts was neither satisfactory nor conclusive; and offset as it was by the two experts produced by the defendant, and the fact that upon a submission of this question of value to an umpire he fixed the amount at $1,500, it cannot be claimed that the judge erred in regarding the verdict awarded as excessive. As said in Horan v. Central Park, etc. (9 Misc. Rep. 68): “The thing that ascertains the value of testimony is mainly the manner of its delivery, the apparent candor and sincerity of the witness, or his manifest simulation and dissimulation. Of this decisive test of truth the trial court has the full advantage, while we are without it. Hence the rule that on appeals from orders giving or refusing new trials upon a claim that the verdict is against the evidence and the justice of the case, the decision of the trial judge is of the weightiest influence. (Aldridge v. Aldridge, 120 N. Y. 614, 617.) ”

In addition to this case from which we have quoted, which is authority for the proposition thát an order of the trial judge setting aside a verdict as against the evidence will be reversed only for abuse of discretion to the prejudice of justice, we have another authority in the case of Young v. Stone (77 Hun, 395), wherein the cases are collated and discussed, and from which it will be found that the language employed in nearly all-the cases relating to this subject is somewhat similar, in holding that the granting or refusing of a new trial on the minutes is largely a matter resting in the discretion of the judge who presides as the trial. Thus in Barrett v. Third Ave. R. R. Co. (45 N. Y. 632) it is said: “ Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly-discovered evidence, are not governed by any well-defined rules, but depend in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end.”

Having regard to the discretion vested in the trial judge, and the testimony offered to support the verdict set aside, we do not think that there is any ground upon which to assert that such discretion has been abused.

The order accordingly should be affirmed, with ten dollar’s costs and disbursements.

Yan Brunt, P. J., concurred in the result.

Order affirmed, with ten dollars costs and disbursements.


author: O’Brien, J.: Parker, L

text:
    The People of the State of New York ex rel. The Commercial Mutual Insurance Company, Appellant, v. The Tax Commissioners of the City of New York, Respondents.

      Certiorari proceedings — contents of petition — review of an assessment for taxation in New York county — waiver of objections — chapter 269 of 1880.
    Generally speaking, a petition and tie return made in proceedings by certiorari are like pleadings in an action, but the same rules of construction applicable to pleadings will not in all cases be applied to them.
    In all special statutory proceedings the statutory directions must be complied with or the proceedings will not be effectual, and unless a proper petition is presented the court is without jurisdiction to entertain a proceeding by certiorari.

      The power of the Supreme Court to grant a writ of certiorari is limited by the provisions of chapter 269 of the Laws of 1880, and where it is sought to review an assessment of property made in any town, ward, village or city for the purposes of taxation, if the basis upon which the relief is sought is the illegality of the assessment, under the provisions of such act the petition must specify the particulars of the alleged illegality, and no general statement is sufficient.
    The difference between the contents of a petition, when it is sought to review an erroneous or unequal assessment and one that is illegal, is prescribed, so far as the county of New York is concerned, by chapter 311 of the Laws of 1885 amending section 821 of chapter 410 of the Laws of 1882.
    Where it is sought to review by certiorari an assessment for taxation made by a city, proof should be made that the grievances complained of are the same as those urged upon the assessing officers, the rule being that only such grievances can be corrected upon certiorari.
    A relator has the right to waive any of the questions raised before the tax commissioners, or to waive some and insist upon other objections there presented.
    In determining the question sought to be presented for review by a writ of certiorari, resort must be had to that portion of the petition which sets forth just what injury or injustice has been done which the relator seeks to have reviewed.
    Parker, J., dissenting.
    Appear by the relator, The Commercial Mutual Insurance Company, from an order of the Supreme Court, made at the New York Special Term on the 29th day of May, 1894, and entered in the office of the clerk of the county of New York, quashing a writ of certiorari previously granted, and also from the judgment entered thereon.

      JEseh Oowen, for the appellant.

      Jamies M. Ward, for the respondents.
   O’Brien, J.:

Generally speaking, it is correct to say that a petition and return upon certiorari proceedings are like pleadings in an action, but from this it does not follow that in all cases the rules of construction applicable to pleadings will be applied in such proceedings. It has been many times held that in all special statutory proceedings the statutory directions must be complied with or the proceedings will not be effectual. Here the power of the court to grant a writ of review is limited by the provisions of chapter 269 of the Laws of 1880, section 1 of which act reads as follows :

“ A writ of certiorari may be allowed by the Supreme Court on the petition, duly verified, of any person or corporation assessed and claiming to be aggrieved, to review an assessment of real or personal property for the purpose of taxation made in any town, ward, village or city of this State, when the petition shall set forth that the assessment is illegal, specifying the grounds of the alleged illegality, or is erroneous by reason of over-valuation, or is unequal. * * *»

Where the relief sought is based upon the ground of over-valuation or inequality, such a statement is sufficient to present the question to the court for review. But it will be noticed that where the basis upon which relief is sought is the illegality of the assessment, then the act provides that the petition must specify “ the grounds of the alleged illegality.” And this difference between the contents of a petition upon an erroneous or unequal assessment and one that is illegal, is enforced, so far as the county of New York is concerned, by chapter 311 of the Laws of 1885, amending section 821 of chapter 410 of the Laws of 1882, so that the latter should read :

“§ 821. 'A certiorari to review or correct on the merits any decision or action of the commissioners * * * shall be allowed by the Supreme Court or any judge thereof, directed to the said commissioners on the petition of the party aggrieved, but only on the grounds which must be specified in such petition, that the assessment is illegal, and giving the particulars of the alleged illegality, or is erroneous by reason of over-valuation.”

It is certain, therefore, that unless a proper petition is presented the court is without jurisdiction to entertain the proceeding.

In the petition under review we find a statement of what occurred before the tax commissioners, which is entirely proper because necessary to show that the relator was diligent in asserting its claim, and for the additional reason that evidence should be offered that the grievances now complained of are the same as those urged upon the assessing officers, the rule being that only such can be corrected on certiorari. In this connection the petition states : That prior to the first day of May, 1889, the said corporation petitioner duly protested, claimed, insisted and demanded from said commissioners of taxes and assessments that all the personal property and bank shares of the said corporation was on the second Monday of January, 1889, by the laws of the State of New York, exempted, and now is exempt, from assessment or taxation * * * upon the ground that all the personal property and bank shares of the said corporation is exempted from assessment or taxation by the laws of the State of New York.” The petition further recites that notwithstanding the proceedings had before the commissioners, they duly transmitted, as required by law, the assessment rolls of real and personal estate to the board of aldermen, which latter board received the same and thereafter directed the commissioners to proceed with the levying of the tax, which they did by publishing notice to the effect that the assessment rolls had been finally completed and delivered to the board of aldermen, and that they would remain open to public inspection in the office of the clerk of the board for a period of fifteen days.

Then follows what we regard as the crucial- and controlling part of the petition, viz.:

“And your petitioner shows that the said assessment upon the said valuation of personal property and bank shares for the purpose of taxation and said assessment is illegal, invalid and void and erroneous, and that your petitioner will be injured by such illegal and erroneous assessment, and your petitioner specifies the following grounds of illegality and error :
“ That the said commissioners have over-estimated the valuation of scrip representing the capital and surplus for the purpose of taxation, and illegally and erroneously included in their valuation of the personal property of .the said corporation on said roll the following sums, to wit,” etc.

It will thus be seen that all the recitals in the petition lead up to the one last quoted, in which the errors sought to be reviewed by certiorari upon this proceeding are clearly and specifically pointed out. That the relator did not intend to raise the question of illegality, but only that of over-valuation, plainly appears, not only from what follows in specifying the respects in which there Avas an ovei’-valuation, but in omitting to specify any grounds of illegality, which would be necessary if it Avere intended to raise such question.

Though it is clear that if the relator were held to a statement of his grievances, which he thus desires to present by the writ, he could not test the illegality, because the grounds are not specified, it is insisted that there is sufficient in the statement of what took place before the tax commissioners to enable the court to review the question of the illegality of the assessment. The answer to this seems to us to be patent. Whatever questions were raised before the tax commissioners, the relator had the right to waive any, or to waive some and insist on other, objections there presented. Thus, by way of illustration, though they had sought exemption on the three grounds of inequality, over-valuation and illegality, they could waive any of these, and, in determining the questions sought to be presented for review, resort must be had to that portion of the petition which sets forth just what injury or injustice has been done that the relator seeks to have reviewed. If we apply this test to the petition here, it will be seen that whatever questions may have been raised before the tax commissioners the relator intended to waive all except that of over-valuation, and the raising of the question of illegality upon this petition was clearly an afterthought, the result of a decision by the Court of Appeals favorable to the exemption claimed by insurance companies.

It is immaterial, therefore, what took place before the tax commissioners, except as showing what was there urged, entitling the relator, if he so elected, to present by proper averments in his petition the same questions to the court for review. If we assume that the averments in the petition were sufficient to show that the question of illegality was one of those presented to the tax commissioners, this at best gave but the right to the relator, if he assigned illegality as an error, to present by proper averments the same questions to the court for review. Our conclusion, therefore, is, that while a recital of what took place before the tax commissioners is proper, ancl, in one respect that we have pointed out, necessary, this is not all that the petition should contain, if the question of illegality is sought to be reviewed, the statute expressly requiring for this purpose a specification of the grounds of illegality.

It is unnecessary to resort to definitions as to the meaning of the word “ grounds,” as used in the law of 1882, because the law of 1885 amending chapter 410, section 821, which was in force at the time the present writ was sued out, removes all doubt on the subject by providing in express language that the relator in the petition must give “ the particulars of the alleged illegality.” No general statement, therefore, is sufficient, the particulars or specifications of the illegality being required. The intention of the Legislature in thus requiring a specific, as distinguished from a general statement, is clear. It was to apprise the assessors of the true ground of the grievance, and not to permit a relator, by concealing this, to await the action of the commissioners, and then, upon some indefinite statement, susceptible of different meanings, to bring up their action for review. Applying these tests to the petition, we think it was insufficient, and'for the reason stated by the learned judge at Special Term.

Yan Brunt, P. J., concurred.

Parker, L

(dissenting):

The commissioners of taxes of the city of New York, in the year 1889, assessed the petitioner for a large amount of personal property, which it claims is by statute exempt from taxation.

In due time the petitioner appeared before the commissioners and insisted upon such exemption, and requested that the assessment for personal property and bank shares be stricken from the rolls. Its claim for exemption was rejected by the commissioners, who refused to correct the assessment roll in the manner requested. The petitioner thereupon presented to the court a petition, under chapter 269 of the Laws of 1880, praying for a writ of certiorari to review the proceedings of the tax commissioners. A writ was granted, which was subsequently quashed at Special Term upon motion of the respondents, upon the ground that the petition was insufficient to raise the question whether the assessment was invalid, because the personal property of the corporation was not taxable. It was the view of the court at Special Term-that, inasmuch as the statute requires that the petition shall specify the grounds of illegality, the petition was defective in that it did not state in effect that the petitioner was by law exempted from taxation on its personal property. It is said by the Court of Appeals in Matter of Corwin (135 N. Y. 245-252), in discussing the office of the petition under the statute of 1880, that: “ It is in the nature of a pleading, and only conclusions of fact need be stated, and not the evidence necessary to support them.”

The plan of the statute unquestionably justifies the position of the court. While the proceeding is to review the decision of the taxing officers and brings up all the facts of which they had, or must be presumed to have had, knowledge at the time of making the assessment, the office of the petition is to present those facts as the petitioner understands them to be.

To this petition, if required by the granting of a writ, the respondents make return as to' the facts. And if by it none of the facts alleged in the petition are put in issue, the court must determine whether the taxing officers committed error. If the return denies any of the allegations of the petition, then a referee may be appointed by the court to take the evidence, that the court may determine what was the real fact about which the petition and return make issue. Thus it appears that the office of the petition and return is precisely like that of the complaint and answer. If the facts alleged in the complaint or the petition are not controverted, the court must make such judgment or order as the law requires from the uncontroverted facts. If, on the contrary, the answer or return does put in issue one or more of the material allegations of fact contained in the complaint or petition, a method is provided by which the real fact or facts are to be determined, whereupon judgment follows in accordance with the law. It is not only not required, but it is not permissible to state conclusions of law in a pleading. And it does not seem to us that the word “ grounds,” in the connection in which it is used, justifies the court in holding that it was the intention of the Legislature that the petition under this statute should differ from pleadings in actions and petitions in other proceedings, in that, in addition to a statement of facts, it should contain the legal conclusion which the relator should claim as necessarily following from the facts alleged. Such a construction is only possible by reading the word “ grounds ” as if it were “ reasons.” It is occasionally used in that sense but not frequently. At least one lexicographer omits to give it as a definition of the word “ ground.” It is ordinarily used in the sense of foundation, basis, support. And where facts are stated in a petition which require a determination that the action taken therein by the taxing officers was illegal, it furnishes “foundation,” “support,” “grounds” for an adjudication of illegality.

So far, we have proceeded on the assumption that the petition did not, in fact, inform the court of the legal inferences which should be drawn from the facts stated.

But we thinlc even the legal inferences were brought to the attention of the court by the petition. The j>etition. states in effect that after the assessment was made the petitioner appeared before the tax commissioners and there insisted that the tax was unauthorized because its jiersonal property was exempt from taxation under the laws' of this State, for the reason that the petitioner was a fire insurance company. This was treated by the Special Term as a mere recital of action taken by the petitioner and not a positive statement of fact essential to the relief sought by the petitioner.

It does not so impress me. It was just as essential to the relief demanded by the petitioner that it should show that it appeared before the tax commissioners and demanded a correction of the assessment, assigning proper reasons therefor, as that the assessment was illegal. This proposition is stated by Judge Andrews in People v. Commissioners (99 N. Y. 257) as follows :

The act of 1880 gives a remedy by certiorari to review and correct an illegal, excessive or unequal assessment. But it would, we think, be an unwarrantable construction of the statute to permit a party complaining of an assessment, to lie by, without availing himself of the opportunity to remedy his grievance by application to the tax commissioners, under the statute of 1859, and .after the assessment had become confirmed by lapse of time, to arrest the collection of the tax by a proceeding under the act of 1880.”

To cause it to appear that the tax commissioners illegally assessed the petitioner was not sufficient to entitle it to relief ; it had to show in addition that it called the attention of the commissioners to the illegality in time for them to have made correction.

As it must appear from the petition that upon all the facts before the tax commissioners the petitioner was entitled to the relief which it demanded from them, it necessarily follows that the statement of what took place before the commissioners touching the demand for the correction of the assessment, was as material and essential a statement as any other statement contained in the petition.

The order should be reversed.

Order affirmed, with costs.


author: Parker, J.:

text:
    Edward Spencer Hall, Plaintiff, v. Herter Brothers, Defendant.

      Corporation — assumption by it of pre-existing contracts of a firm — evidence of their adoption — informal transaction of its business.

    The assumption by a corporation, organized through the instrumentality of partners, and carrying on the business formerly transacted by the firm, of a contract procured by such firm, does not necessarily carry with it the assumption of all other contracts which such firm had entered into for the purpose of obtaining and executing the contract assumed.
    Where a corporation was created, to which the business and property of a firm was transferred, although there was no agreement on the part of the corporation to assume the obligations of a contract made by the firm, it is within the power of the corporation to assume such contract, and such assumption need not be by any resolution or formal action on its part, nor by an instrument in writing, nor by any oral agreement in terms providing for the assumption thereof. If it be shown that it was intended by both parties to the original contract, and by the directors and officers of the corporation who were stockholders thereof, that the contract should be assumed by the corporation, the assumption thereof by it may be deemed established.
    While a corporation is not bound by engagements made on its behalf by its promoters before its organization, it may, after it is organized, make such engagements its own by adopting them, and less evidence tending to show such adoption will be required to establish it, where the officers of the corporation were also its promoters, than where its officers and promoters were different persons.
    Where a corporation consists of a small number of persons it may transact ordinary business without the formality of resolutions; it may he transacted by conversation, without formal votes.
    Motion by?the plaintiff, Edward Spencer Hall, for a newj^rial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the dismissal of the complaint directed by the court, after a trial before the court and a jury at the New York Circuit on the 6th day of April, 1894.

      G. N. JBou/oee, Jr., for the plaintiff.

      JuTmls H. Seymour, for the defendant.
   Parker, J.:

The plaintiff, in January, 1890, made a contract with the firm of Herter Brothers, under which he claims there is over $3,000 due, and this sum, he says, Herter Brothers, a corporation, is legally bound to pay.

William Baumgarten and William -G. Nichols were for a number of years, prior to the month of January, 1891, partners doing business under the firm name of Herter Brothers. During that month Baumgarten and Nichols promoted a corporation under the name of Herter Brothers, joining with themselves, as incorporators, a brother of Baumgarten, Nichols’ father and Arthur Norton, their salesman. To this corporation there was conveyed and transferred all the real and personal property of the partnership. The instrument by which all of the partnership property of Herter Brothers was turned over to the corporation Herter Brothers contained no promise to pay the debts of the partnership. About a year prior to this transaction plaintiff entered into a contract of employment with the firm of Herter Brothers, by which he was to receive five per cent commission for obtaining and supervising the execution of contracts in the line of business in which- the firm was engaged, the plaintiff to draw from the firm during the year seventy-five dollars a week on account, and at the end of the year his account to be credited or debited, dependent ujdoii the amount of commissions earned by him during the year, and the balance paid to him, if a credit, and charged to him, if a debit. Thereafter plaintiff entered into negotiations with W. L. Elkins for fitting and decorating his house. He prepared estimates in connection with the partners for doing the work, which called for $68,860. Subsequently, JVIr. Elkins’ representative informed the firm that it would be impossible to accept the estimate in competition with other houses, and that it should be lowered. It is claimed, on the part of the defendant that there were conversations between Baumgarten and plaintiff about cutting down the estimate $5,000, the result of which was a special agreement between them that plaintiff should accept one-half commissions on that particular contract rather than lose it, and that the rest of the deductions should be borne by the firm. The fact is that the contract was entered into between Elkins and Herter Brothers, and by reason of the extra work done the total sum paid by Elkins to the firm and corporation of Herter Brothers was $127,225. On this amount commissions at the rate of two and one-half per cent were paid to the plaintiff-before the commencement of this action. He seeks now to recover the other two and one-lialf per cent.

The question whether the plaintiff and Herter Brothers made a special agreement, as contended by the defendant, with reference to the Elkins contract was not reached in the trial court, the court holding that the plaintiff had failed to show that the corporation of Herter Brothers had assumed the liabilities of the firm of Herter Brothers.

"We have omitted to say that the corporation took up and carried out all the contracts which the firm of Herter Brothers had made for the fitting and decoration of buildings, including the Elkins contract. Erom the record which comes to us of the discussion between the learned trial judge and the counsel for the plaintiff at the close of the testimony, we understand that the plaintiff largely relied upon the assumption of the Elkins contract by the corporation to support, plaintiff’s right of recovery. He contended that' inasmuch as Hall procured the contract with Elkins, and was under agreement to supervise it until its completion, the assumption of the Elkins contract by the corporation necessarily carried with it the assumption of all other contracts which Herter Brothers had entered into for the purpose of obtaining and executing the Elkins contract. This, we think, was a mistaken view, and, without stopping to discuss the authorities which appellant has cited, we concur in the position taken by the trial court on that question. The contract which Herter Brothers had with this plaintiff had no connection with the contract which they had with Elkins. Their contract with the plaintiff was not only entered into months before the Elkins agreement, but was intended to secure the services of the plaintiff in procuring, not the Elkins contract, but as many contracts as possible.

It required more of him than that he should obtain the contracts. He was to supervise them as well.

They were entirely independent contracts, and it was within the power of the corporation to assume the carrying out of either one of them, without being bound to fulfill the contract with the firm of Herter Brothers as to the other. But the record presents another question, and that is, whether there was not" such evidence of assumption of plaintiff’s contract by the defendant as entitled him to have that question submitted to the jury ? It was within the power of the corporation to assume the contract which the partnership had with the plaintiff, as well as the Elkins contract. Not by any resolution or formal action on the part of the incorporators of the Corporation, by an instrument in writing or by any oraL agreement, was it in terms provided that the partnership obligation under the contract with Hall should be assumed by the corporation.

But the evidence on that subject is such as tends to support the inference that it was intended by both parties to the original contract and the directors and officers of the corporation, who were the stockholders as well, that it should be assumed by the corporation.

This brings us to the question, whether there is not evidence of such conduct on the part of the corporation and its officers as would authorize a finding that the corporation ratified, adopted and made binding the informal and unenforcible understanding which a jury might find from the evidence to have existed — an understanding which induced action on the part of plaintiff, of which the defendant received the benefit.

While a corporation is not bound by the engagements made on its behalf by its promoters before its organization, it may, after it is organized, make such engagements its contracts by adopting them as its own. Less evidence tending to show adoption will be required to establish it where the officers were also the promoters, than where the officers and promoters were different persons. It should be borne in mind as we refer to the acts tending to show adoption of the partnership contract with the plaintiff, that there were but five incorporators of this corporation, and their relation to the business of the firm of Herter Brothers, which became Herter Brothers, a corporation, was as follows : William Baumgarten and William G. Nichols constituted the partnership; Arthur Norton was a salesman and had been in the employ of the firm ten or twelve years; Emile Baumgarten was a brother of William, and had been in the employ of the firm a year or two; William S. Nichols was the father of William G. Nichols, one of the partners, and the stock which was subscribed by the incorporators, other than the partners, was given to them in order to qualify them for the purposes of incorporation. After incorporation its officers were as follows: William Baumgarten, president; William G. Nichols, vice-president and treasurer, and Arthur Nichols, secretary. Now, when there are so few interested in the management of a corporation, ordinary business may be transacted without the formality of resolutions. It may be done by conversation without formal votes. (Melledge v. Boston Iron Co., 5 Cush. 158 Sheridan Elec. Light Co. v. Chatham Nat. Bank, 52 Hun, 582.)

In the latter ease the trustees of the plaintiff were five in number, one of whom never qualified or acted, and another of whom had been present at only one of the earlier meetings of the board. The court said: “ The stock of the company was substantially owned by the three members of the committee, and by Mr. Sheridan, for the employment of whose inventions it was incorporated. And where that is the nature of the corporation it is not essential that the selection of the committee should be by formal resolution of the board of trustees entered in their minutes. Eor it has been held that where a corporation consists of a small number of persons, like a partnership, they may transact all their business by conversation without formal votes.’ ”

Some features of the testimony tending to show an adoption of plaintiff’s contract with Herter Brothers will now be referred to. In the first place the president of the corporation testified: “"We also had several conversations with Mr. Hall, requesting him to continue under the same conditions with the corporation that he had under the old co-partnership ■— continue the same way he did before. That has been repeatedly discussed by Mr. Nichols and myself with him. All of the debts of the partnership were paid by the corporation. ' All of my associate incorporators knew of the existence of Mr. Hall’s contract and of the Elkins contract.”

The Mr. Nichols referred to in Baumgarten’s testimony was the vice-president and treasurer and one of the principal stockholders of the corporation. Erom Baumgarten’s testimony the inference may be legitimately drawn that Hall was informed by him after the incorporation that he was to have the same commissions on sales, and continuance of sales, as before. The plaintiff assented to this proposition and thereafter continued to supervise and attended to the execution of their contracts, including the Elkins contract, about which the officers frequently conferred with him. It should be borne in mind that plaintiff’s work was not ended when he had procured the making of the contract between Herter Brothers and Elkins. The receipt of his commissions was further made dependent upon his attending to the supervision and completion of the contract; and he not only continued to supervise the work, which seems to have been done to the entire satisfaction of the corporation, but he was given instructions and directions by the officers during its performance.

January 11, 1892, nearly a year after the incorporation, defendant, in response to plaintiff’s request for settlement, sent him the following letter:

“ Herter Brothers, 151 Fifth Avenue.
“ Vm. Gilman Nichols, President and Treasurer.
Arthur Norton, Vice-President and Secretary.
“New York, Jan. 11, 1892.
“E. S. Hall, Esq.:
“Hear Sir — Enclosed herewith find check for $100 on acct. There are several matters to be settled up yet, such as Barney, Rose & Stone, and the Elkins matter, and if you will do your share and hasten what you can to a settlement of these accounts you, of course, will receive a prompt settlement in all these and other matters; do what you can.
“Yours very truly,
“H. B. Hecosta.”
“HERTER BROTHERS.

This letter, it will be observed, contained a distinct recognition of the fact that he was at work upon the contracts in which the corporation was interested, including the Elkins contract, and, further, an assurance that defendant would pay him as soon as matters should be closed up. About a month later defendant paid plaintiff commissions at the rate of two and one-half per cent on the entire amount of the Elkins contract, and the reason assigned for refusing to pay the other two and one-lialf per cent, when it was demanded by the plaintiff, was not that the defendant was under no obligation to pay him his commissions, but that there were only two and one-lialf per cent commissions due him on the Elkins contract, because of a special agreement entered into by him with the firm at the time the contract was taken, that two and one-half per cent as to that particular contract should be received by him as full compensation for his services.

We are not called upon to express any opinion upon the merits of that question, for under the evidence adduced it was for the jury to. determine whether he was entitled to full or one-half commissions on tbe Elkins contract, should they first find in his favor upon the question we have suggested.

Our duty is ended when we announce the conclusion at which we have arrived, that under this evidence the plaintiff was entitled to have the jury say whether the defendant is chargeable with having assumed the obligations of the contract of the plaintiff with the firm of Herter Brothers. The plaintiff’s exceptions should be sustained and a new trial ordered, with costs to plaintiff to abide the event.

Yan Brunt, B. J., and O’Brien, J., concurred.

Plaintiff’s exceptions sustained and new trial ordered, with costs to plaintiff to abide event.