text:
    Catherine Gunning and Another, as Administrators, etc., of Martin Gunning, Deceased, Appellants, v. Denis Quinn, Respondent.

      Proof required in an action in trover by a client against Ms attcwney.

    ,, la order to maintain an action of trover against an attorney who has come rightfully into.the possession of money belonging to his client, upon which he has, a lien for his services and disbursements, it must be shown that the attorney has been paid the amount due him, or that that amount has been tendered to him.
    Appeal by the plaintiffs, Catherine Gunning and another, as administrators, etc., of Martin Gunning, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of January, 1894, upon the dismissal of the complaint directed by the court after a trial at the New York Circuit before the court and a jury, and also from an order entered in said clerk’s office on the 9th day of January, 1894, denying plaintiffs’ motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 3d day of January, 1894, denying the plaintiffs’' motion for a bill of particulars.

      Albert I. Sire, for the appellants.

      J. Woolsey Shejpa/rd, for the respondent.
   Follett, J.:

This action was brought to recover $1,623.43 alleged to have been • converted by the defendant. April 19, 1893, an order was duly granted and entered in this court, by which it was:

“ Ordered, that said motion be and the same hereby is granted, and the defendant, the North River Savings Bank, is hereby ordered and directed, upon due service upon it of a certified copy of this order, to pay to James Gunning and Catherine Gunning, administrators of the estate of Martin Gunning, deceased, or to either of them, or to Denis Quinn, their attorney, the sum of $2,359.75, deposited with said bank to the credit of said Martin Gunning,, deceased, together with all the accrued interest due at the time of said payment ”

On the day of the entry of the order the defendant drew from the bank $2,529.27, and on the 2d of May, 1893, he made out an account against the plaintiffs for services rendered and disbursements made as an attorney in several matters, including the recovery of the money in question, which had been in litigation for about two years. His bill as rendered amounted to $1,623.43, which, deducted from the sum drawn from the bank, leaves $905.84, for which he sent the plaintiffs his check, which was received. One of the plaintiffs’ witnesses denies that the check was accepted, but it is alleged in the complaint that defendant had paid the -plaintiffs $905.84, and the action was brought for the recovery of the remainder,, $1,623.43. The defendant came rightfully into possession of the money, upon which he had a lien for his services and disbursements. To maintain trover the plaintiffs wfere required to show: (1) That, the defendant had been paid the amount due him; or (2) that the plaintiffs had tendered the defendant the amount due him. Before the owner of personal property held by another under a lien can recover for a conversion of the property by proof of its simple detention, the plaintiff must show a payment of the lien or a tender of an amount sufficient to pay the lien. (Bush v. Lyon, 9 Cow, 52; Everett v. Coffin, 6 Wend. 603; Clark v. Costello, 79 Hun, 588; Jones Pledgs. § 570; 2 Sel. N. P. [13th ed.] 1326.)

No attempt was made to show a tender, but the plaintiffs relied upon proving an agreement with the defendant, by which he was-to perform all of the services which he had rendered for $400, and which had been paid him. We think the evidence given on the part of the plaintiffs of payment, was entirely insufficient to raise a question, whether they had paid the defendant $400, assuming that there was an agreement that he should accept that sum.

Mr. Shepard, another attorney, was employed to assist the plaintiffs in the litigation, and they paid him $250.

Ellen Gunning, the daughter of one and the sister of the other plaintiff, testified that the defendant owed her sixty-six dollars for fixing gutters, leaders and roofs on his property. This was not an offset, unless by the agreement of the parties, and none was shown. Aside from these two items the sister testified that the defendant had been paid $180 at different times, and in addition that she had made payment of various other small sums for disbursements. There is no evidence that the defendant agreed to perform all of the services and make all of the disbursements for $400, and the plaintiffs utterly failed to show that the defendant had been paid the sum which they say they had agreed to pay him, and consequently they failed to establish a right to recover. The judgment being affirmed it is entirely iinnecessary to consider the plaintiffs’ appeal from the order refusing to compel the defendant to furnish a bill of particulars.

The judgment and orders should be affirmed, with costs.

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

Judgment and orders affirmed, with costs.


source: Caselaw Access Project

author: Follett, J.:

license: Public Domain

text:
    James Stoddard, Respondent, v. John McAuliffe and Another, Appellants.

      Wager — right to recover the amount wagered.

    A person who makes a let or wager, within the definition of the statute, and deposits the amount thereof with a person as a stakeholder, has a right to recover hack the amount of the same from such stakeholder irrespective of the result of the wager.
    Appeal by the defendants, John McAuliffe 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 13th day of June, 1894, upon the verdict of a jury rendered by direction -of the court after a trial at the New York Circuit.

      Daniel P. Mahoney, for the appellants.

      George 8. Hastings, for the respondent.
   Follett, J.:

This action was begun in November, 1891, against Richard K. Fox to recover $1,500 deposited by plaintiff with him as a stakeholder. On the 10th of December, 1891, Fox paid the amount in his hands into court, and John McAuliffe and Jeremiah Mahony, the present defendants, who claimed to be entitled to the sum, were substituted as defendants in the place of Fox. No question is raised over the validity of the substitution.

In 1891 a prize fight or a boxing- match was arranged to take place in September of that year at the Granite Club at Hoboken, N. J., between Austin Gibbons and John McAuliffe. ' The plaintiff swears that a prize fight was to be fought, the terms of which were stated in a written, agreement, signed by the fighters, while the defendants’ witnesses swear that the two men were simply to contest for a purse or prize. But it is quite indifferent to the statute relating to betting and gaming whether the contest was a prize fight or a contest to determine which was the superior boxer. All agree that the plaintiff deposited in the hands of Fox $1,500, which belonged to him, and that the defendant Jeremiah Mahony deposited a like sum, which belonged to him, with Fox. It is also agreed by the witnesses that in case McAuliffe whipped Gibbons the money was to be paid to McAuliffe, and that in case Gibbons whipped McAuliffe the money was to be paid to Gibbons. The witnesses on both sides testified that a written agreement was signed by Gibbons and McAuliffe fixing the terms of the contest or fight. This agreement was drawn and left with William E. Harding, one of the defendants’ witnesses, but it was not produced on the trial on the plea that it could not be found. The plaintiff testified that it was provided in this agreement that the fight was to be for $3,000 — $1,500 on a side. The draughtsman and depositary of the agreement called by the defendants testified: “ I don’t think this agreement contained the provision that this contest should be for the sum of $1,500 a side. I can’t swear that it did not.”

Dunn, who was the official referee and manager of the fight, was called as a witness by the defendants, and testified: The prize put up by the club was $4,000. We exacted from each side for their appearance on the occasion and their faithful training up to that time, that they put $3,000 between them — $1,500 each. Each man was to put up $1,500.”

McAuliffe, one of the defendants, testified: “ Mr. Fox was the stakeholder. Some friend of mine put up $1,500 for me. Fifteen hundred dollars was put up on the other side. I claim the money put up by Stoddard because it belonged to the purse agreement. I claim it as mine. There was no knock out; it was a point of boxing, and who was decided the best man won. The referee was chosen mutually between us two. It was Mr. Dunn, and I was given the decision on points. I did not knock him down on that occasion. I am very sorry. I hit him a number of times — fifty times. The police asked us to stop the contest. They said it was finished and I stopped. They told me to stop. The decision was awarded after they told us to stop and I had won the contest.”

The police interfered and stopped the fight, but the referee decided that McAuliffe had won.

It is useless to attempt to disguise the transaction, which was a bet or wager within the definition of the statute under which this plaintiff has a right to recover the sum, and the verdict was properly directed.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Follett, J.: "Van Brunt, P. J.:

text:
    John W. Lumsdon, Appellant, v. Theodore Gilman and Another, Respondents.

      VaiVu/re of a bank to return an unpaid draft to the depositor thereof — a demand necessary before the depositoi' can sue therefor.

    The fact that a bank, with which a depositor has deposited a draft which is unpaid, does not return the draft to its depositor, but forwards it to the assignee of the person liable thereon, does not give to the depositor the right to recover of the bank the amount for which it was drawn, if the draft has never been demanded by him from the bank.

      Semble, that if the bank refuses to return the draft upon demand the depositor thereof may recover damages for its detention.
    Appeal by tbe plaintiff, John W. Lumsdon, 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 27th day of November, 1893, 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 5th day of November, 1893, denying the plaintiff’s motion for a new trial made upon the minutes.
    For several years past the defendants have been engaged in the business of banking, under the firm name of Gilman, Son & Co., at No. 62 Cedar street, New York. For six or eight years past the plaintiff has kept an account with the defendants, the ordinary one kept by a customer with a bank. J. J. Nicholson & Sons were engaged in banking at the city of Baltimore, kept an account with Gilman, Son & Co., and were accustomed to send items to that firm for collection against bankers, firms and persons in New York and in eastern cities. When items due on demand were received from J. J. Nicholson & Sons for collection, it was the practice of Gilman, Son & Co. to credit them to J. J. Nicholson & Sons, and, if any of the items were subsequently dishonored, to charge them back, so oftentimes the apparent credit of J. J. Nicholson & Sons was greater than that which they were entitled to have. January 11, 1892, the plaintiff owned a draft for $500, payable to his ordei’, drawn by J. J. Nicholson & Sons on defendant. After banking hours of that day plaintiff learned that J. J. Nicholson & Sons had failed, and he went to defendants’ place of business, which was closed for the day, but secured an entrance and found defendants’ bookkeeper, assistant bookkeeper and assistant corresponding clerk in the office. The plaintiff told them of the failure of J. J. Nicholson & Sons, which fact they knew, presented his draft and asked to have it credited to his account. The plaintiff testified : “ I went up to the bank about fo\ir o’clock, and in my frank way I stated the fact that the banking house in Baltimore had failed, and asked them if they could place that to my credit. The young man who was present at the time — I think that young man there. In a few moments the bookkeeper came in — sitting by Mr. Gilman there, and he said the account was all rightthey had balance enough to cover it and they would accept it, as they had not received any official announcement of the failure, provided we did not hold him —he did not know how Mr. Gilman would take it- — ■ if I did not hold him personally responsible he would accept it; I sent my book up afterwards, the next day, and it was duly entered up. I considered it then settled. I did not have my book with me, and I simply left the draft until he had consulted with Mr. Gilman, and sent my book up the next day, and it was duly entered on my book. Sometimes I might send up my deposit, and, if I did not have the book, it would be entered on their books, and sent my books afterwards and it was entered there.”
    This was all the evidence given by, or in behalf of, the plaintiff as to what occurred when the draft was credited. The bookkeeper testified in behalf of the defendants: “ He (Lumsdon) said he had a draft of J. J. Nicholson & Sons, $500, drawn to his order, and he carried it around in his pocket during the day, and forgot to deposit it, and wanted ,to know if I could not help him out and credit his account. I told him we had heard of the failure, and we were not paying drafts of theirs, and although, according to our books, he had a credit, I could not credit it to him. He wanted to know, as a favor, if I could help him out. I told him, as he was an old customer of ours, I would rather see him get the credit, and any favor I could do him I would be very glad. He said if I would only credit his account ■ — ■ if there was anything occurred, if everything was not all right, I might charge it back to his account. I said, of course, if that was the case, I should be glad to do it. I told him, although Nicholson & Sons’ account showed a balance enough for this amount, items that we had received and deposited we had not heard from, and that I was not sure of that account. If anything came up, he said, ‘ if you will do that, I will see Gilman, Son & Co. will lose nothing, if you will credit my account; if there is anything the matter you can charge it back.’ Our accounts were all taken off, our books footed up and balanced for the night, so I had the young man erase Nicholson’s account there and add this draft in there. We knew of Nicholson’s failure during the day; along during business hours, two or three hours before business closed.”
    The assistant bookkeeper and the assistant corresponding clerk, who were present at the interview, corroborated the evidence of the bookkeeper. At the time of the credit of the account there was an apparent balance to the credit of J. J. Nicholson & Sons of $1,000, but a few days afterwards it was discovered that there was an error in the account, and that there was a small balance due from J. J. Nicholson & Sons to the defendants, and thereupon the draft for $500 was charged to the plaintiff in his account, who refused to recognize the validity of the charge, and brought this action for the recovery of that sum.

      Henry B. Johnson, for the appellant.

      D. B. Ogden, for the respondents.'
   Follett, J.:

The only issue of fact in the case was, what was the agreement between the plaintiff and the defendants’ clerks ? The learned trial justice submitted this issue to the jury, which found in favor of the defendants. The verdict controls the rights of the litigants, and it underlies and cuts off the questions which the plaintiff seeks to raise on this appeal. Whether the defendants were negligent in not knowing the true state of the account of J. J. Nicholson & Sons, and the ordinary effect of the payment of a check or draft by the drawee to «the holder, become immaterial questions in the face of the agreement as found by the jury. The fact that the defendants had not returned the draft, but had forwarded it' to the assignee of J. J. Nicholson & Sons, did not give the plaintiff the right to recover the amount for .which it was drawn. It had never been demanded, and, if the plaintiff demands it and the defendants fail to deliver it, the question of the plaintiff’s right to recover damages can be raised in another action, but not in this.

The judgment and order should be affirmed, with costs.

Parker, J., concurred.

"Van Brunt, P. J.:

It is apparent from the plaintiff’s own evidence that the bookkeeper, in accepting this check after business hours, was acting without authority, and also that he accepted it subject to Mr. Gil-man’s approval. Upon the undisputed evidence no right of recovery was shown.

Judgment and order affirmed, with costs.


author: Follett, J.: Yan Brunt, P. J.

text:
    William Ottman & Co. and Others, Appellants, v. Marvelle W. Cooper and Others, Respondents.

      Action to vacate chattel mortgages to trustees, as fraudulent as to creditors.

    An action was brought by judgment creditors to set aside, as fraudulent and void as against creditors, three chattel mortgages given by their judgment debtor to certain of the defendants in such action subsequent to the time when such judgment debtor incurred his indebtedness to the plaintiffs. One of the mortgages in question was given to trustees to secure the indebtedness of the mortgagor to a third person therein named, and by it the trustees were authorized to take possession of a hotel leased by the mortgagor from the person in said mortgage named, to whom he was indebted, to conduct the same, and out of the proceeds pay th'e expenses of management, and from the income pay off the indebtedness of the mortgagor to such person, and, after the payment of such indebtedness and expenses and a reasonable compensation to the trustees, to return the remainder to the mortgagor. At the time of the execution of such mortgage the mortgagor owned other property.
    The trial court found that such trust mortgage was executed in good faith, without any intent to defraud creditors, and for the purpose of securing the creditor named thereon ; that at the time of its execution, the mortgagor was sick and unable to attend to his business, and that the person whose claim against the mortgagor was secured by such mortgage was not present when it was executed, nor did he know, prior to its execution, that the mortgagor contemplated making the same. The trustees, as mortgagees, immediately after the execution of such mortgage took possession of the hotel property and managed it.

      Meld, that such mortgage was not fraudulent either in fact or in law. (Van Brunt, P. J., dissenting.)
    That the trustees, having acted in good faith and without any intent to hinder, delay or defraud the mortgagor’s creditors, were entitled to be protected.
    Appeal by the plaintiffs, William Ottman & Oo. and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of New York on the 26th day of October, 1893, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiffs’ complaint upon the merits.
    This action was brought by three judgment creditors of James O. Matthews to set aside, as fraudulent and void as against creditors, three chattel mortgages executed October 11, 1891, one by the defendant Matthews to one Albert P. Sturtevant individually, another, to him as surviving partner of A. P. & J. D. Sturtevant, and third, a trust chattel mortgage executed by Matthews at the same date to Marvelle W. Cooper and William Waddell, as trustees.
    March 10, 1886, A. P. & J. D. Sturtevant leased the premises known as Sturtevant House to James C. Matthews for a term beginning October 1, 1886, and ending May 1, 1892, with a covenant that the lease should be renewed until the 1st day of May, 1895, at the annual rent of $54,000, and the lessee entered into occupation of the demised premises under the lease.
    July 1, 1888, John E>. Sturtevant, one of the firm of A. P. & J. D. Sturtevant, died leaving Albert P. Sturtevant the sole surviving partner. On the 14th of October, 1891, James C. Matthews was indebted to Albert P. Sturtevant, as surviving partner, on fourteen promissory notes given by Matthews and payable to the order of A. P. & J. I). Sturtevant, amounting to $41,871.97, to secure the payment of which said Matthews mortgaged to said Albert P. Sturtevant “ all the goods, chattels, property, effects of every name or nature of the party of the first part, now in or upon the premises known as the Sturtevant House, situate upon Broadway between 28th and 29th streets in the city of New York, consisting of all furniture, beds, washstands, bureaus, chairs, carpets, cooking utensils, bar fixtures, tables, crockery, silver and plated ware, mattresses, pillows, bed linen, table linen and all other property more particularly mentioned and described in the schedule hereto annexed which is made a part hereof.”
    On the same date said Matthews was indebted to Albert P. Sturtevant individually on four promissory notes, amounting to $22,700, and Sturtevant was also liable as an accommodation indorser for said Matthews on two promissory notes, amounting to $13,000, which were then under discount. On the same date said Matthews, to secure the payment of said notes to said Sturtevant, and also to secure him against his liability as an indorser, mortgaged to said Sturtevant the property described in the first mortgage. On the same date said Matthews executed a chattel mortgage to Marvelle W. Cooper and William Waddell, as trustees, in which it was recited that he was indebted to Albert P. Sturtevant, individually, and as a surviving partner, in the sum of about $60,000, to secure the payment of which this trust was created. This mortgage embraced the mortgagor’s leasehold interest, accounts, claims of every nature, promissory notes, cheeks, choses in action, bonds, mortgages, stocks, securities, wines, liquors, mineral water, owned by and in the possession of the mortgagor, and also the chattels described in the first two mortgages. The trustees in this mortgage were authorized to take possession of the hotel and run it, and out of the proceeds pay the expenses of management; and from the net income to pay off and discharge the indebtedness of the mortgagor to Albert P. Sturtevant ; and, after the payment of sucli indebtedness and expenses, and a reasonable compensation to the trustees, to return the remainder to the mortgagor. The first two mortgages were duly filed in the office of the register of the county of New York on the 15th of October, 1891, but whether the mortgage of the trustees was filed, does not appear.
    The court found the foregoing facts, and also that the two mortgages were executed by Matthews and received by Sturtevant in good faith for the purpose of securing just debts due from the mortgagor to the mortgagee. It was also found that at the date of the execution of the trust agreement Matthews was sick and unable to attend to his business, and that the trust mortgage was executed in good faith, without any intent to defraud creditors, and for the purpose of further securing said Sturtevant, as stated in the trust mortgage. It was also found that the three mortgages were all executed and delivered on the same date, but it was found that Sturtevant was not present when the trust agreement was executed, and that there was no evidence that he knew prior to the execution thereof that Matthews contemplated making it. Immediately after the execution of these mortgages the trustees took possession of the Sturtevant House and managed it; Matthews, on the next day, going into the country for his health, where he remained until about November 10, 1891.
    On the eleventh of November Matthews demanded that the trustees should surrender the hotel and the mortgaged property, and on the thirteenth of that month he brought an action against the trustees and Sturtevant to reform the three mortgages by inserting in Sturtevant’s mortgages that they were to be payable in one year instead of on demand, and by insei’ting a clause in the trust agreement that the property and business were to be turned over to the mortgagor on demand. In that action the plaintiffs in this were made parties defendant, and also one other creditor. It was tried and resulted in a judgment dismissing the complaint on the merits, with costs. On the 11th of November, 1891, the plaintiffs in this action recovered three several judgments against James C. Matthews upon the service of summons and complaints and offers to compromise, served by Matthews and accepted by the plaintiffs, upon which executions were issued and were outstanding in the hands of the sheriff when this action was begun on the 10th of December, 1891.
    The debts on which these judgments were recovered were contracted before the mortgages were executed, and Matthews was also indebted to others when the mortgages were given, and when they were executed Matthews owned property not described in them.
    March 11, 1893, Albert P. Sturtevant, a resident citizen of the State of Connecticut, died, leaving a last will and testament, which was duly probated in said State March 23, 1893, and letters testamentary were duly issued thereon to Edwin B. Studley, Marvelle "W". Cooper, Charles P. Sturtevant, Allen Tenney and Arthur H. Brewer, and on June 13, 1893, ancillary letters were duly issued to Edwin B. Studley by the Surrogate’s Court of the city and county of New York, and June 19, 1893, this action was revived and continued against said ancillary executor.

      Joseph Fettretch, for the appellants.

      George S. Hastings, for respondent Cooper.

      FHhu Boot, for respondent Studley.
   Follett, J.:

The defendants Matthews and "Waddell have not answered in this action, evidently desiring that the plaintiffs should prevail. This is a race between creditors, at the outset of which the debtor favored his landlord and indorser, but before the close he attempted, in the interest of other creditors (these plaintiffs) to destroy the securities which he had voluntarily given, on the ground that they were fraudulent, but on the trial he testified in behalf of the plaintiffs, and when confronted with his notes and the indorsements which the mortgages were given to secure, he admitted that all of them were just and honest, and no attempt was made to show that they were not. It is apparent that Matthews gave these mortgages, with an honest intent to secure to his creditor his just demands, but that for some reason, within thirty days, he came to regret his act and attempted, by permitting other creditors to charge him with fraud, which he failed to deny, to substitute them in the place of his landlord.- The court found that the mortgages were given and received to secure honest debts, without any intent on the part of the mortgagor or mortgagees to hinder, delay or defraud creditors. No other conclusion was possible under the evidence. These mortgages were not fraudulent in fact, nor were'they fraudulent in law., Matthews had a legal right to secure Mr. Sturtevant by chattel mortgages on his property, which he did. The court finds that Sturtevant did not know that the trust mortgage was to be executed until after it had been executed and delivered. It is apparent that Matthews, being in poor health and desiring to put some persons in charge of his property, which he was about to leave, devised, through his attorney, this scheme of giving to trustees a mortgage upon the property so as .to give them a right to possession and power to manage.

The court refused to find that Matthews was insolvent when the mortgages were given or that he was insolvent at the date of the trial, and he testified that he had property not included in the mortgage. It does not appear that an execution had been returned unsatisfied against him or that the sheriff had been unable to find property subject to execution, and we think the refusal of the court, to find insolvency was justified by the evidence.

Had Sturtevant participated in this scheme a more serious ques- , tion might have arisen, but he did not. That no ground was established for setting aside the two mortgages given to Sturtevant is apparent. The exact situation in respect to the trust agreement is not shown. ’Whether the defending trustee was in possession of the property and engaged in running the house at the time of the trial, is not disclosed by the record. To set aside this mortgage without setting aside those given to Sturtevant would avail the plaintiffs nothing, for the trust mortgage in no way increases the burden upon the property, as the executor of the mortgagee has the right to close his mortgages at any time, and when the amount secured by them is paid the third falls. Again, the trustee, having acted in good faith and without any intent to hinder, delay or defraud the mortgagor’s creditors, is entitled to be protected.

The judgment should be affirmed, with costs.

Parker, J., concurred.

Yan Brunt, P. J.

(dissenting):

I cannot concur in the conclusion arrived at by Mr. Justice Follett, that the judgment in this action in all its pai'ts should be affirmed. It is undoubtedly time that no ground was established for setting aside the two mortgages given to Sturtevant. But in respect to the trust agreement an entirely different question arises. It is tx’ue that such agreement appeal's to have been executed at the same" time with the mortgages. But the validity of the mortgages cannot validate an agreement which, as to the creditors of Matthews, was void upon its face. It might very well be urged that the mortgages and trust agreement having been executed at the same time, and the trust agreement being fraudulent, the mortgages must, therefore, fall with it. But the rule to which attention has been called does not apply to mere fraud in law, but only to those cases in which a series of papers are executed at the same time, and a fraudulent intent in fact pervades the whole transaction. The mox'tgages to Sturtevant were executed in good faith to secure to hixn the amount of his indebtedness. • The trust agreement was also executed' to add to that security, bixt without Sturtevant’s knowledge or consent. Such trust agreement was not one which could prevail or give any title to the trustees therein named as against the creditors of Matthews. Such being the case, Matthews’ creditors had the right to avoid that agreement. The plaintiffs in.this action were creditors of Mattlxews at the time of the execution of the agreement, and they have brought this action to set it aside as an impediment to their secuxung the payment of their debts. It is not necessai'y to discuss the nature of tlxe agreement. It is apparent that it is such an agreement as an insolvent debtor cannot make ; and that trustees appointed thereunder cannot hold the property of such debtor as against his creditors who have filed their bills to enforce judgments which they have obtained against the creator of the trust.

It is urged in the opinion referred to that it does not appear that an execution has been returned unsatisfied against Matthews, or that the sheriff has been unable to find property subject to execution, and that, therefore, the refusal of the court to find insolvency was justified by the evidence. It is not necessary that a judgment creditor should have an execution returned unsatisfied in order that illegal incumbrances upon the part of the judgment debtor should be set aside. The creditor may maintain his bill in aid of an execution still in the sheriff’s hands. If Matthews, the creator of the trust, at the time of the bringing of this action, was not insolvent, it seems to be strange that these judgments should be standing against him and executions certainly unsatisfied. There is no proof whatever that Matthews had property out of which these executions could be satisfied. I do not understand it to be necessary for a judgment creditor, in order to attack the fraudulent transfer of the property of his debtor, to show that he has an execution returned unsatisfied, or that the debtor had no property. The fact that the creditor has a judgment, and that he has an execution in the hands of the sheriff unsatisfied," gives him standing in court to set aside clouds upon the property of the judgment debtor in order that his execution may attach.

. Under these circumstances it seems to me that it was error to sustain this trust agreement and to prevent these creditors from reaching the equity in the property of the judgment debtor covered by the mortgage and trust agreement ill question.

I think the judgment should be modified by declaring void the trust agreement, and setting the same aside so far as it affects the plaintiffs in this action.

Judgment affirmed, with costs.


author: Follett, J.:.

text:
    John G. Fuchs, Respondent, v. John A. Morris, Appellant.

      Irresponsive answer tajeen on a commission — when stricken out — general evidence as to the excellence of an article, overcome by proof of specific defects.

    Although testimony, otherwise competent, taken upon commission, is not to be rejected because not responsive to the interrogatory, anymore than it would be if given upon an oral examination upon the trial, because not responsive to the question, yet when irrelevant and inadmissible evidence is given by an irresponsive answer to an interrogatory upon commission, it is error to refuse to strike it out on a motion stated to be made on the ground that the answer is irresponsive.

      The evidence that an instrument was well manufactured of the best, materials and perfect, is entitled to very little weight as against positive and uncontradicted evidence that it was found defective immediately after it was put in place, and continued to he defective in operation until it was reconstructed.
    Appeal by tbe defendant, John A. Morris, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New Yorlc on the 22d day of January, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order made on the 19th day of January, 1894, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      Alfred B. Oruikshank, for the appellant.

      Edma/rd G. Black, for the respondent.
   Follett, J.:.

The defendant did not move for a nonsuit or that a verdict be. directed in his favor, 'and the plaintiff did not ask that a verdict be directed in his favor as to any of the counterclaims. The questions contained in the record are presented by the defendant’s exceptions taken to the rulings upon the admissibility of evidence, to the refusals to charge as requested and to the charge as delivered, and by the appeal from the order.

The action was brought to recover the last installment of the purchase price of an orchestrion. The defendant alleged as a defense that the instrument was defective in design and construction, and that the plaintiff failed to perform his contract in respect to it. He alleged by way of counterclaim that he had sustained $6,000 damages by reason of the defective construction of the instrument. Other counterclaims were set up in the answer, which need not be here specially referred to.

April 25, 1890, the litigants entered into a written contract by which the plaintiff agreed to “ well and sufficiently make, finish, complete and deliver and set up the musical instrument described in the specifications hereto annexed, commonly known as an orchestrion, agreeably to the said specifications signed by the said parties and hereunto annexed, within ten months from the date hereof, in a good, workmanlike and substantial manner, to the satisfaction of Thomas R. Jackson, to be testified by a writing or certificate under the hand of said Jackson.”

The contract contained the following covenant:

“ And in consideration of those presents said Fuchs hereby represents, guarantees and warrants that said orchestrion will be a first-class instrument and will keep in perfect running and working order, and in all respects be satisfactory for five yeai-s after its erection, and will during all such time 'utter and furnish good and satisfactory tones and music, and agrees to tune the same as often as required and to keep it in order and to do all repairs thereto for such period. He also represents that such instrument does not require expert or extraordinary skill or care in its management.”

The orchestrion was built for use in the New York Jockey Club House at Westchester. The defendant agreed to pay for it $1J,300, in four equal installments of $3,575 ; the first on the execution of the contract, the second when the instrument was received at the custom house in the city of New York, the third when it was ■ set up in the club house, and the fourth “six months after said instrument has been set up in the Club House and is in operation there, provided said instrument is as represented herein in every respect.” The contract also provided that the covenants and agreements were to be strictly performed and kept by the plaintiff, and that “ everything will be made in a good, workmanlike and substantial manner, to the best satisfaction.”

The orchestrion was manufactured by Imhoff & Mukle, at Yolirenbach, Germany. The deposition of a member of this firm was taken in behalf of the-plaintiff and by him read in evidence. The following question put to the plaintiff and answer were contained in the deposition : “ Q. State whether such cracking or splitting is due to faulty construction, or poor or bad material, in such cylinders, or the location, surroundings or otherwise; state fully regarding the matter? A. The firm Imhoff & Mukle have manufactured, sold and have hi operation over two thousand orchestrions; they are furnishers to her Majesty Queen Yictoria; that they have many such instruments in Great Britain, France and Germany; that the orchestrion furnished the Jockey Club was the very best and most complete that the firm of Imhoff & Mukle could make; that special care and. labor were bestowed upon it, as it was the first of the largest sized orchestrions that was sent to America; that it was the aim of said firm to give perfect satisfaction, as they did desire to extend their trade into the United States. [Defendant’s counsel objects to the answer as not responsive and moves it to be stricken out. Overruled, and defendant excepted.] ”

The plaintiff seeks to justify this ruling upon the authority of Fassin v. Hubbard (55 N. Y. 465), in which it was held that “ testimony, otherwise competent, taken upon commission, is not to be rejected because not responsive to the interrogatory, any more than that given upon an oral examination upon trial because not responsive to the question.” The answer above quoted is not otherwise competent, but is utterly irrelevant. But we find no case holding that, when irrelevant and inadmissible evidence is given by an irresponsive answer, it is not error to refuse to strike it out on a motion based on the ground that the answer is irresponsive. (Lansing v. Coley, 13 Abb. Pr. 272; Terry v. McNiel, 58 Barb. 241; Railway Passengers' Assurance Co. v. Warner, 1 T. & C. Add. 21.) There was no way in which this evidence could have been made competent.

Whether the firm had furnished her Majesty Queen Yictoria with an orchestrion, and their aims and objects in manufacturing the one in question, were facts utterly immaterial to the issue involved in the trial of this case. The answer in its whole scope is utterly irrelevant, and of a nature likely to influence the jury. It might well have been objected to on the ground that it was irrelevant to the issue, but it was not, and we think that this court, in the exercise of its right to grant a new trial, when it believes that injustice may have been done, should not disregard this exception.

Upon the issue whether there was a breach of the warranty of the quality of the instrument and of the covenant that it should be kept in perfect running and working order, and in all respects satisfactory for five years, we are of the opinion that the verdict was contrary to the weight of evidence. The plaintiff concedes that many defects were found in the instrument immediately after it was put in operation, and that other defects were being continually developed from time to time during the following year, but he insists that these defects arose from two causes: (1) The excessive heat communicated by two steam pipes passing in the rear near to the instrument; and (2) careless handling of the instrument by the defendant’s employees. The instrument was set up in April and May, 1891, and was played for the first time on the twenty-fifth of May. Early in June it was found to be defective in operation, and from that time until autumn it was frequently repaired by the plaintiff, and early in the autumn the cylinders of the instrument were found cracked and warped.

The evidence on the part of the defendant is that the steam was ■shut off from the pipes passing near the instrument, and that no steam was allowed to pass through them after the instrument was put up. There is no evidence on the part of the plaintiff that these pipes, which were designed to communicate steam for heating the upper floors, were used for such purpose during the summer of 1891, and it seems quite impossible that these checks, cracks and warpings could have been developed during the summer by the excessive heat caused by these pipes. The plaintiff does not assert that these checks, cracks and warpings were caused by the improper handling of the instrument by the defendant’s employees, but that such handling did bend and injure the pins on the cylinders. It is true that one of the manufacturers of the instrument testified that it was well made and perfect in every respect. In Boughton v. Smith (142 N. Y. 674) it was said: “ The plaintiffs gave evidence that the floors were of the best materials and workmanship. This does not meet the specific and uncontradicted evidence as to shrinkage, and the acts of the plaintiffs in relaying and repairing them show that the general statements (by defendant that he was satisfied with 'the floor) were not intended to cover this defect.’’ So in this case, the evidence that the instrument was well manufactured, of the best materials and perfect, is entitled to very little weight as against the positive and uncontradicted evidence that it was found defective immediately after it was put in place, and continued to be defective in operation until it was rebuilt.

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

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

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


text:
    In the Matter of the Application of the Attorney-General, Respondent, for Leave to Commence an Action to Annul the Charter of The Central Stamping Company, Appellant.

      Action to vacate the charter of a corporation —form and substance of an application, therefoi' by the Attoi'ney-General — form, and effect of the order.

    Before leave will be given by the court for the bringing of an action to vacate the charter and to annul the existence of a corporation, the Attorney-General must make a written application which should point out to the court the particular act or acts done or omitted which, in the judgment of the Attorney-General, are sufficient to justify the bringing of such an action, and it should allege wherein the corporation has violated the laws of the State — what it has done or omitted — which allegation should be supported by sufficient evidence-to render it probable that a cause of action exists.
    The authority to commence the action will not be granted, as a matter of course,. on the application of the Attorney-General.
    The petition of the Attorney-General for leave to bring an action to vacate the charter and annul the existence of a corporation, contained an allegation of which the following is a copy: “After a full.and careful consideration of the affidavits, contracts and other exhibits so presented before your petitioner hereinbefore referred to, of which copies are hereto annexed, your petitioner has arrived at the determination that the public interests require that an action should be brought by him in the name of the People of the State of New York to annul the charter of The Central Stamping Company, for the reason that the said Central Stamping Company has exceeded and abused its powers to the detriment of the public; has attempted to exercise powers and privileges not authorized by its charter, and has violated various provisions of the law under which it was organized and the laws of the State binding upon it; and the public interests require that such an action should be commenced, and I believe such action can be maintained.”

      Held, that such petition was too indefinite to justify the court in granting the application and authorizing the action to be brought;
    That the order in such case should specify the grounds on which the action is to be brought, since the court in granting a general order abandons all control over the action, and it thus becomes possible to bring an action upon any one or all of the grounds stated or shadowed forth, or upon grounds not disclosed, in the affidavits annexed to the application of the Attorney-General.
    Appeal by Tbe Central Stamping Company from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of July, 1894, granting leave to the Attorney-General to bring an action against the Central Stamping Company to procure a judgment vacating the charter and annulling the existence of the said company.

      Howard Mcmsfield, for the Central Stamping'Company, appellant.

      Louis Marshall, for the Attorney-General, respondent.
   Follett, J.:

Section 1798 of the Code of Civil Procedure provides that upon leave being granted by the court the Attorney-General may bring an action to vacate the charter or annul the existence of a corporation, upon the ground that it has either,

“ 1. Offended against any provision of an act, by or under which it was created, altered or renewed, or an act amending the same, and applicable to the corporation; or,
“ 2. Violated any provision of law, whereby it has forfeited its charter, or become liable to be dissolved, by the abuse of its powers; or,
3. Forfeited its privileges or franchises by a failure to exercise its powers; or,
“ 4. Done or omitted any act which amounts to a surrender of its corporate rights, privileges and franchises ; or,
“ 5. Exercised a privilege or franchise not conferred upon it by law.”

When this matter was first before this court it was held that leave should not be granted to bring an action to annul the charter of a corporation without the written application of the Attorney-General to the court stating that, in his opinion, the action could and ought to be maintained for reasons given. (79 Iiun, 369.) The matter now comes before the court on a petition of the Attorney-General, which states : After a full and careful consideration of the affidavits, contracts and other exhibits so presented before your petitioner hereinbefore referred to, of which copies are hereto annexed, your petitioner has arrived at the determination that the public interests require that an action should be brought by him in the name of the People of the State of New York to annul the charter of The Central Stamping Company, for the reason that the said Central Stamping Company has exceeded and abused its powers to the detriment of the public; has attempted to exercise powers and privileges not authorized by its charter, and has violated various provisions of the law under which it was organized and the laws of the State binding upon it; and the public interests require that such an action should be commenced, and I believe such action can be maintained.”

This, we think, is too indefinite to justify the court in authorizing an action to be brought. It is asserted that the corporation “ has exceeded and abused its powers to the detriment of the public,” but what powers it has exceeded and abused, or what it has done that it ought not to have done, is not stated in the petition. It is also asserted that it “ has attempted to exercise powers and privileges not authorized by its charter, and has violated various provisions of the law under which it was organized and the laws of the State binding upon it.” It does not state what powers and privileges the corporation has attempted to exercise not authorized by its charter, nor what statutes it has violated. Before authority should be given to bring an action to vacate the charter, or to annul the existence of a corporation, the Attorney-General should point out in his application to the court the particular act or acts done or omitted, which, in his judgment, are sufficient to justify the bringing of such an action, and should allege in his petition wherein the corporation has violated the laws of the State — what it has done or omitted — which allegations shoiild be supported by sufficient evidence to render it probable that a cause of action exists. The fact that such an action has been begun is usually destructive of the credit and business of the corporation assailed, and authority to commence such an action should not be lightly given. Authority will not.be granted, as a matter of course, on the application of the Attorney-General.

It may be said that if the court will look into the affidavits annexed to this petition sufficient grounds for an action will be found. We have looked into the record and find several grounds stated and shadowed forth, some of which the court may deem sufficient, and others quite insufficient. But upon which ground or grounds the Attorney-General proposes to found his action is nowhere disclosed, and, under the general order granted, an action may be brought upon any one or all of the grounds stated or shadowed forth, or upon grounds not disclosed in the affidavits. By such an order the court abandons all control over the action, and it becomes possible to bring one based on grounds not disclosed in the moving papers and which the court would not have held to be sufficient. The order in such a case should specify the grounds on which the action is to be brought.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, witb ten dollars costs and disbursements, but without prejudice to the right of the Attorney-General, on payment of costs, to apply again for leave to bring an action.

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

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, but without prejudice to the right of the Attorney-General, on payment of costs, to apply again for leave to bring an action.


author: Follett, J.: .Van Brunt, P. J.

text:
    Daniel L. G. Frobisher, Respondent, v. Fifth Avenue Transportation Company (Limited), Appellant.

      Damages for personal injuries — contributory negligence as a matter of law — allegation as to special damages — construction of the steps of a stage — city ordinance forbidding its stopping on crosswalks.

    The fact that a person attempted to enter a stage drawn by horses on the streets of a city, while it was in motion, where the driver thereof had nearly stopped the stage, and its motion was hardly perceptible when such person attempted to board the same, does not ftf itself constitute contributory negligence as a matter of law.
    In an action brought to recover damages for personal injuries, sustained by the plaint,iff in slipping through the step of a stage owned and operated by the defendant, it is proper to submit to the jury, upon contradictory testimony, the questions whether the defendant was negligent in using a step upon its stages drawn by horses along the streets of a city, without a riser or back, and whether the driver of the stage was negligent in not stopping the stage so as to permit the plaintiff to enter, and in starting it suddenly when he was on the step.
    The ordinance of the city of New York, providing that a stage shall not be stopped at the intersection of streets so as to obstruct passage on any sidewalk or in the street, is not intended to apply in case it should be necessary to stop a stage in order to save life or prevent a collision or the infliction of an injury to a person.
    The mere fact that a person fell or was thrown from the step of a stage, thereby sustaining personal injuries, does not, of itself, raise the presumption that the step was defectively constructed, but if there be evidence that a step differently constructed was in use upon other stages at the time of the accident, and that the accident could not have happened if such a step had been used on the stage in question, it is proper for the court to refuse to charge, as a matter of law, that there was no evidence that the step was defective, and the question as to whether or not its construction was defective is one of fact, and as such is properly left for the determination of the jury. (Van Brunt, P. J., dissenting.)
    In an action brought to recover damages for personal injuries sustained by the plaintiff, by reason of the alleged negligence of the defendant, the complaint contained an allegation that the plaintiff “has become disabled for life to such an extent as to seriously interfere with the active prosecution of his business.”

      Held, that such allegation was sufficient to give the defendant notice that an attempt would be made to recover special damages; that if the defendant had desired a more definite allegation it should have moved that the complaint be made more definite and certain;
    That the plaintiff was properly permitted, upon the trial of the action, to show the amount of his yearly income from his business prior to his injury.
    Appeal by tbe defendant, Tbe Fifth Avenue Transportation Company (Limited), from a judgment of tbe Supreme Court in favor of the plaintiff, entered in tbe office of tbe clerk of the county of New York on tbe 18th day of June, 1894, upon tbe verdict of a jury rendered after a trial at tbe New York Circuit, and also from an order entered m said clerk’s office on tbe 18th day of June, 1894, denying tbe defendant’s motion for a new trial made upon the minutes.

      William Irwim, for the appellant.

      J. Tredwell Riohcurds, for the respondent.
   Follett, J.:

This action was brought to recover damages arising from a personal injury caused, it is alleged, by tbe negligence of tbe defendant and of its servants.

Tbe defendant did not move for a nonsuit, or that a verdict be directed in its favor, and the only questions presented are those raised by tbe exceptions taken to tbe admission and exclusion of evidence, to tbe charge and to tbe refusals to charge.

On tbe 14th of October 1889, tbe plaintiff, while attempting to enter one of defendant’s stages, fell from tbe step, breaking the radius of bis left arm near tbe wrist and dislocating bis left shoulder. Tbe step was an open one, having no back or riser, and it is alleged that tbe defendant was negligent in not using one with a riser or back which would have rendered it impossible for tbe foot of a passenger to slip forward from and beyond the step. It is also alleged that the driver was negligent in not coming to a full stop when the plaintiff attempted to enter the stage, in starting suddenly while he „was on the step, and in dragging him so far after he fell. The stage was going up town. The plaintiff was standing on the west side of Fifth avenue, near the corner of Twenty-third street. He testified that he signaled the driver that he wished to ride, who recognized him and pulled up his horses, but did not come to a full stop. He said that when he attempted-to enter the stage its motion was hardly ■' perceptible; that he took hold of the brace or handle at the right of the door with his right hand, and was standing on the step when the stage “ started up with a big jerk,” throwing him violently backwards ; that his left foot slipped over the step and caught; that he fell, and was dragged at least seventy-five feet, and over the tracks of the Twenty-third street railroad.

The driver of the stage had died before the trial, and the plaintiff’s evidence as to the manner in which he attempted to enter the stage was not contradicted. One of the defendant’s employees testified that when the stage was between the south crossing at Twenty-third street and the track of the Twenty-third street railroad the plaintiff ran forward and got on the step and was caught by his foot and dragged about ten feet; that at the time the stage was in motion; the driver was walking his horses across Twenty-third street He did not know whether the plaintiff had signaled the driver lower down.

Frost, a policeman called by the defendant, testified that he saw the plaintiff get on the step of the stage when it was south of the Twenty-third street crossing. “ He got on below that. I had seen him getting on. I saw him step on the stage after it started. He pulled on the door until he put his foot through, slipped through ; I presume he went through anyway — Q. Was the stage at that time in motion or stationary when he got on ? A. In motion. It was not standing still.” The witness said that the plaintiff was dragged fifteen or twenty feet.

The evidence that the plaintiff attempted to enter the stage after having signaled the driver to stop and before it reached the crossing while it was moving slowly, is quite sufficient to warrant the jury in finding those facts. The defendant insists that the plaintiff was negligent, as a matter of law, in attempting to enter the stage while it was in motion, and that the court erred in refusing so to charge. If it be true, as testified by the plaintiff, that the driver had nearly stopped the stage and that its motion was hardly perceptible, we do not think that under such circumstances it could be held as a matter of law that the plaintiff was guilty of contributory negligence in attempting to enter the stage.

There was evidence that the stages and coaches used by others have steps with risers or backs protecting the passengers from the danger of slipping forward from the step. Whether the defendant was negligent in the use of a step without a riser or back, and whether its driver was negligent in not stopping the stage so as to permit the plaintiff to enter, and in starting it suddenly when he was on the step, were issues fairly submitted to the jury by the court in its charge, and they found for the plaintiff.

The defendant asked the court 'to charge that it was not negligence on the part of the defendant or its servants not to stop the stage, in Twenty-third street where it crosses Fifth avenue. The court refused to express any opinion on that question. There is no evidence tending to show that the plaintiff asked the driver to stop the stage after it had passed the south line of Twenty-third street. The only complaint made in respect to the drivei-’s not stopping the stage before crossing Twenty-third street, is that after the plaintiff was caught it should have been stopped before dragging him across the tracks of the Twenty-third street railroad.

It was shown that the ordinances of the city forbid that a stage be stopped at the intersection of streets so as to obstruct passage on any sidewalk or in the street. , This ordinance, however, was not intended to apply in case it'should be necessary do stop in order to save life, prevent a collision, or the infliction of an injury to persons.

The defendant requested the court to charge:

“ 9. That there is' no proof that the step of the stage, or the stage itself, was in any way defective.”
“The Court: You have the evidence in regard to what might have been done with known appliances with respect to the step.”

[Defendant excepts.]

By this request the court was asked to rule, as a question of law, that there was no evidence that the stage or its step was in any way defective. It was not asserted by tbe plaintiff that any part of the stage was defective except the step. The plaintiff’s foot slipped over and beyond the step and was caught, and he fell and was dragged by the moving stage and was injured.

Undoubtedly, the mere happening of the accident did not raise a presumption that the step was defectively constructed. But there was more evidence. Mulholland, who had been connected with the Stephenson Oar Factory of this city for thirty-four years, was sworn in behalf of the plaintiff, and testified : “ Q. Has that company been building for use stages with solid backs to steps ? A. They have built steps with solid backs; yes, sir. Q. Steps with solid backs ? A. .Yes, sir. Q. During the period you have been in business? A. They have; yes, sir. Q. And which steps are known in the trade,. are they ? A. This step is known in the trade ; yes, sir. Q. Step with a solid back ? A. Yes, sir. Q. And was known in 1889 and the fall of that year? A. "We have built some since that. Q. At that time it was well known as a form of construction, was it not ? A. This was one of the forms of construction; yes, sir. Q. Apart from the diagram, steps with solid backs were well known as a form of construction? A. Not apart from this. Q. I mean without looking at the diagram (of a closed step) you, in your own memory, know that steps to stages having solid backs were a well-known form of construction in the trade? A. Yes, sir.

Cross-examined by Mr. Irwin: Q. Were those the only kind of steps built? A. No, sir; it is not. Q. "Were there not some without a solid back ? A. Yes, sir. Q. "Were they very generally used ? A. In a few cases we had an open step, what we call an open step. Q. "With rubber on the step, or without it ? A. W^ell, without the rubber. Q. And those were used in other form of stages? A. Yes, sir. Q. Just as general as the solid back ones? A. This is known as a stage step, the other is something new; that is the open step made for large cities. Q. The open step? A. Yes, sir; the first that was made, I believe, was for Baltimore; they were used in the city of Baltimore. Q. And the open step, you say, was made for large cities ? A. Had been made for the city of Baltimore; that is a pretty large city. Q. And have been used in this city ? A. I have seen them in the city; yes,’ sir.”

Hall, a car and stage builder, sworn for the defendant, testified that the step in use on that stage. was the kind usually used, and' that in his opinion it was safe and convenient. On the cross-examination he testified: “Q. * * •* "Wouldn’t a solid back or riser to the step prevent the foot from going through and catching under the step there' — is there any way in which the foot could get through that step, if there was a solid back to it? A. No, not if there was a solid back there ; I never saw a stage with a solid back to its step; I never heard of one except these hotel coaches, they are inclosed all in. Q. You have seen stages that have solid backs to the steps? A. Yes, but not on an ordinary vehicle.”

Under this state of the evidence it was not error for the court to refuse to rule, as a matter of law, that there was no evidence that the step was defective, and the question was properly left as one of fact to the jury.

There is but a single exception to the admission of evidence that is deserving of discussion. The plaintiff• was asked: “What was your income a year, prior to this injury, from your business? [Objected to upon the ground that there is no allegation of special damage in the complaint. Objection overruled. Exception.] ”

It is alleged in the complaint that tho plaintiff “ has become disabled "for life to such an extent as to seriously interfere with the active prosecution of his business.” This is certainly hot a very specific allegation of special damages resulting from an injury to the plaintiff’s business, but it was sufficient to give defendant notice that an attempt would be made to recover such damages, and if it had desired a more definite allegation it should have moved that the complaint be made more definite and certain in this particular. (Ehrgott v. Mayor, 96 N. Y. 264.) The damages awarded in this case were not very large, and it can hardly be asse2’ted that much, if anything, was awarded to the plaintiff for loss of business.

The judgment and order should be affirmed, with costs.

Parker, J., concurred.

.Van Brunt, P. J.

(dissenting):

I cannot concur in the conclusion arrived at by Mr. pustice Fonkett as to the questions raised by this appeal. It seems to me that it was clear error for the- court to refuse to charge that there was no proof that the step of the stage was in any way defective. This error was accentuated by the reply of the court to the request. He said to the jury: “You have the evidence in regard to what might have been done with known appliances with respect to the stage,” thereby charging the jury that if there were any known appliances which might possibly have made this stage safer, in view of the knowledge obtained from the happening of this accident,the defendant was guilty of negligence, thus presenting a rule of diligence for which I have been unable to find any precedent and for which no authority is claimed by the respondent. The evidence was conclusive, even according to the testimony of the plaintiff’s witness on this subject, that this was an ordinary mode of construction. It is true he testifies that there were other modes of construction by which the back of the step was filled in, but it is not contended that that mode of construction was adopted for the purpose of meeting results such as were produced in the case at bar. It is probably true that the plaintiff might not have been so severely injured had this step had a solid back, but there is no particle of evidence that any accident of this kind had ever happened before.

Under the rule as settled by a large number of cases, of which the following are merely samples, where an appliance has been used for a considerable length of time and has not been 'found defective and no accident has happened in consequence of it, it is not negligent to continue its use. (Laffin v. Buffalo & S. W. R. R. Co., 106 N. Y. 136; Crocheron v. North Shore Staten Island Ferry Co., 56 id. 656; Loftus v. Union Ferry Co., 84 id. 455; Tonkins v. N. Y. Ferry Co., 47 Hun, 562.) The establishment of any other rule would be requiring of transportation companies a measure of diligence with which it would be almost impossible for them to comply.

It is undoubtedly true that the expert witness Mulholland testifies that steps with risers or solid backs was a well-known mode of construction in building stages at that time. But he also testifies that these were not the only kind of steps built; that open steps were used in other forms of stages ; that the closed step was something new, and that open steps were made for large cities. "Without considering the testimony‘upon the part of the defendant in this respect, it is clear that the stage in question was built after the ordi nary manner of construction, and that the jury had no right to find, as they were virtually directed to do, that the defendant was negligent because of this method of construction.

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

Judgment and order affirmed, with costs.


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

text:
    Charles E. Maxwell, Respondent, v. Nathan Hofheimer, Appellant.

      Contents of boohs beyond the jurisdiction of the court — seconda/ry evidence in regard to the same.

    Where the contents of books do not constitute the subject-matter of an action, and such books are beyond the jurisdiction of the court and there is no process known to the court by which their production can be compelled, a party to the action has the right to give secondary evidence, in regard to their contents, by a person who knew of the correctness of the entries therein and who is able to testify as to the nature of such entries, although such witness could not testify without reference to a duplicate set of books, provided he is able to testify as to such facts after referring to the duplicate books.
    Appeal by tbe defendant, Nathan Iioiheimer, 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 28th day of February, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order made on the 15th of February, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Julius Goldman, for the appellant.

      John A. Mopes, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover damages for a breach of contract for the 'sale of whisky. The complaint alleges that on or about the 16th of April, 1890, the defendant contracted and agreed to deliver fifty barrels of rye whisky, which the defendant represented to be of a certain well-known brand, known as the J. G-. Mat-tingly & Sons-brand of whiskies of June, 1889; the same being distilled from ninety per cent rye and ten per cent malt, and which fifty barrels were then in the storage warehouse of said Mattingly & Sons at Louisville, Kentucky. The complaint further alleged that on the 24th of June, 1890, the defendant contracted and agreed to sell to the plaintiff 150 barrels of whisky under similar representations as to quality, etc.; and further, that the plaintiff paid for said whisky, having had no opportunity of examining the same or of learning the truth or falsity of such representation. The complaint further alleged that such representations were false and that the plaintiff had been damaged thereby.

Upon the trial of the case it was claimed upon the part of the plaintiff that the barrels of whisky were not branded as called for by the rejnesentation; but the court refused to submit any such question to the jury, and only submitted the question as to whether the whisky was of the quality represented, the defendant having conceded that he agreed to sell whisky of the quality alleged.

No exceptions whatever were taken to the charge upon the part of the appellant; and the jury having rendered a verdict in favor of the plaintiff a motion was made for a new trial upon the judge’s minutes and denied, and from the judgment and order thereupon entered this appeal is taken.

The only question presented upon this record is as to whether there was any evidence to go to the jury upon the falsity of the rejDresentations as to the quality of this whisky.' At' the conclusion of the evidence it seems to have been conceded by both parties that it was proper to submit-such question to the jury, as no motion was made either to dismiss the complaint or for the direction of a verdict.

It is urged upon the part of the appellant that the evidence established that the whisky was of the quality which the defendant agreed to deliver, and he apparently bases this assertion upon the testimony of Mr. Preston D. Mattingly, the distiller of the company, who testified that from actual knowledge there was rye whisky made at said distillery in said months of May and June, 1889, containing ninety per cent of rye and ten per cent malt, and that that was about the usual way in which rye whisky was made at that distillery. But there is not a particle of evidence upon the part of Mattingly that the whisky in question was so manufactured. All that he testified to is that there was rye whisky containing the ingredients called for by the representation made at the distillery in the months of May, and June, 1889. But he is entirely silent as to how much other rye whisky had been distilled in those months which did not come up to. this standard. There was other evidence (some of which was slight; it is true) which tended to contradict Mr. Mattingly very conclusively, and to show that the whisky contained in the barrels •delivered to the plaintiff was not of the quality called for by his contract.

It is urged that it was error to admit the testimony of the internal revenue storekeeper upon the ground that the original books were the best evidence and he should not have been allowed to testify orally. The witness testified that his residence and occupation during the months of May and June, 1889, was that of internal revenue storekeeper in charge at Mattingly & Sons, distillers, Louisville, Kentucky; that he had charge of and saw- to the making of the entries on the government book at the Mattingly distillery; that he kept the government book connected with said distillery, and made the entries therein as provided by the laws of the United States during the months above mentioned ; that he entered in said book the percentages of corn, rye and malt used in the manufacture of whisky at that distillery, and also the serial numbers of the barrels placed in the warehouse filled with the whisky; that he made entries of the time the material went into the mash and the time it was drawn off into the receiving system and barreled, which was the sixth day from the day it was mashed, including the day it went into, the mash. He further testified that he superintended the making of the entries in said book and saw that the whisky was entered into the barrels of the mash referred to, and knew the entries made in the books to be correct; that the collector of internal revenue of the ■district now has charge of the books so kept by him in which such matters were entered, and that he had positively refused to allow him to inspect such books. He further testified that, by reference to the books of the distillery, which were duplicates of the government book made on government forms and inspected and checked by government oificers, he was able to state the date of manufacture of whisky contained in barrels bearing such serial numbers, and also from what material the said whisky was manufactured. The evidence in this respect'was objected to upon the ground that the books were the best evidence, which objection was overruled and an exception taken. The witness then stated, by reference to the books mentioned, checked duplicates of the books kept by him, he found that the whisky contained in the barrels in question entered into the-mash on the 24th and 25th of May, 1889. On the 24th of May, ■ 1889, the proportion of grains was thirty per cent corn, sixty per cent rye and ten per cent malt; and, on the following day, the twenty-fifth of May, the proportion was, corn forty-five per cent, rye forty-five per cent and malt ten per cent. This evidence was-objected to on the ground that it did not show that he compared any of the entries in the book and that the books were the best evidence, and, furthermore, that the witness had testified that he had been refused access to the books of the collector. This objection was. overruled and an exception taken. The question presented is whether, under the circumstances disclosed by the evidence of the witness, it was competent for him to give the evidence which he did. It is urged that the plaintiff was bound to.produce the best evidence, namely, the books in question. But, as the books were not the subject-matter of the action, the rule-which is invoked does not apply. And as such books are beyond the jurisdistion of this court, and there is no process known to the-court which could compel their production, the plaintiff clearly had the right to give secondary evidence in regard to their contents by a person who knew of the correctness of the entries therein and who was able to testify as to the nature of those entries. It is true that the witness stated that he could not testify without reference to the-duplicate set of books, but upon a reference to the duplicate books he did testify as to the facts. Under such circumstances there was no valid objection to such testimony because of the non-production of books which were beyond the jurisdiction of the court. If any other rule were to prevail it would be impossible to conduct litigation and to produce evidence contained in collateral papers which are not directly involved in the subject-matter of the action. In respect to such collateral papers, the rule has never been as stringent as it is in regard to written instruments which form the basis of an. action or defense as the case may be.

¥e think, therefore, that no error was committed in allowing the witness to testify after having refreshed his recollection by the distiller’s own books.

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

Follett, J., concurred.

Parker, J.:

I concur, but it seems to me that the strongest point is that the books from which A. R. Morris testified were those kept in the distillery in which defendant had a controlling interest as he testifies at folio 166.

Judgment and order affirmed, with costs.


author: O’Brien, J.:

text:
    Jacob Hirshfeld, Suing on His Own Behalf and on Behalf of all Other Creditors of the Madison Square Bank, Appellant, v. Frederick A. Kursheedt and Another, Respondents, Impleaded with Others.

      Banking corporation — complaint in an action to charge its stockholders — chapters 688 and, 689 of the Laws of 1892.
    TJtie provisions of the Stock Corporation Law (Chap. 688 of the' Laws of 1892) embrace a banking corporation, and are applicable thereto, and where a liability is created against the stockholders of a bank by the provisions of the Banking Law (Chap. 689 of the Laws of 1892), the provisions of the Stock Corporation Law, limiting such liability, must be considered. Section 55 of the Stock Corporation Lajv must be construed in connection with section 52 of the Banking Law.
    Chapter 689 of the Laws of 1892 is a special law, applicable to banks and creating a liability in respect to the stockholders thereof, while chapter 688 of the Laws of 1892 is a general law, applicable not only to banks, but also to other classes of corporations in most respects dissimilar to banks.
    In construing a general law applicable to different and dissimilar corporations, it is proper that such a construction should not be given to it as will render it unreasonable or meaningless.
    Where the liability of a defendant is to be predicated upon the compliance by the plaintiff with certain conditions, the complaint must allege either such compliance or such facts as show that compliance was impossible.
    If the complaint in an action brought to charge the stockholders of a bank with personal liability for its debts, under the provisions of section 52 of chapter 689 of the Laws of 1892, does not allege that a judgment has been recovered against the bank by the plaintiff, it must at least aver, if the bank has gone into the hands of a receiver, that the bank is indebted to the plaintiff, and that such indebtedness has been allowed by the receiver of the bank, and the facts in connection with the indebtedness should be made to appear in such a way that the court may determine whether it was contracted subsequent to the enact ment of the statute under which the action is brought
    If the indebtedness grew out of a deposit made by the plaintiff in such bank, in order to hold a stockholder the complaint should not only state that the plaintiff made a deposit of money during the time that the person whom he seeks to hold liable was a stockholder, but also that he made such deposit without any condition or limitation, and in such form as to entitle him to demand his money at any time.
    Prior to the passage of chapter 689 of the Laws of 1892 the liability of a stockholder of a bank was fixed by article 8 of section 7 of the Constitution, which confined the liability to stockholders of banks issuing notes or paper credits to circulate as money, but by the enactment of such statute the liability of the stockholders of banks is enlarged so that it is no longer necessary to show, in an action brought to charge the stockholders of a bank with personal liability for its debts, that the bank is engaged in issuing bank notes, unless the recovery is sought for a debt contracted prior to 1892.
    Appeal by the plaintiff, Jacob Hirshfeld,- from an interlocutory judgment of the Supreme Court in favor of the defendants, Frederick A. ICursheedt and another, entered in the office of the clerk of the county of New York on the 3d day of August, 1894, upon the decision of the court rendered after a trial at the New York Special Term sustaining their demurrer to the complaint and granting leave to the plaintiff to serve an amended complaint upon the payment of costs.

      Louis Marshall, for the appellant.

      Joseph Fettretoh, for the respondents.
   O’Brien, J.:

The material allegations of the complaint are as follows:

1. That the Madison Square Bank is a domestic corporation,•organized and doing business under the laws of this State relative to banks.

2. That an action was commenced in this court on the 10th day of August, 1893, by the People of the State of New York against the Madison Square Bank for its dissolution on the ground of insolvency, etc.

3. Tliat on November 24, 1893, a final judgment was entered in, tbe office of tbe clerk of New York county dissolving such corporation, forfeiting its franchises and providing for the distribution of •its assets among its creditors, forever restraining it from exercising its corporate franchises, etc., and restraining its several creditors-from instituting any action against it.

4. That defendants O’Brien £ind Cannon, in and by said judgment, were duly appointed permanent receivers of such bank, and, have qualified.

5. That the capital stock of the bank is $500,000, and that it was,, at the time of the commencement of this action and the rendition of the decree of dissolution, held and owned by the defendants in the amounts stated.

6. That prior to the commencement of said (People’s) action the plaintiff herein had duly deposited with said bank moneys belonging to him to the amount of $5,334.41, for which said bank was, on that day, indebted to him; that a portion of this amount has been paid, and that there is now due plaintiff $4,024.56, with interest from August 10, 1893.

7. That said bank is also indebted to divers other creditors to an amount exceeding $1,000,000; that the assets of said bank which have come into receivers’ hands are inadequate to pay in full said bank’s liabilities; and that, after the application of said assets to-the payment of such liabilities, there will remain a deficiency upon the aggregate claims of such creditors exceeding the sum of.$500,000.

The defendants Kursheedt demur upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and from the decision and judgment thereon sustaining the-demurrer, this appeal is taken.

The statute under which the action is brought is section 52 of “ The Banking Law ” of 1892, and is as follows : “ Except as prescribed in the Stock Corporation Law, the stockholders of every such corporation shall be individually responsible, equally and ratably, and not one for another, for all contracts, debts and engagements of such corporation to the extent of the amount of their stock therein at the par value thereof, in addition to the amount invested in such shares.”

The Stock Corporation Law of 1892 (§ 55) reads as follows: .

“No action shall be brought against a stockholder for any debt of the corporation until judgment therefor has been recovered against the corporation and an execution thereon has been returned unsatisfied in whole or in part, and the amount due on such execution shall be the amount recoverable, with (jests against the stockholder. No stockholder shall be personally liable for any debt of the corporation not payable within two years from the time it is contracted, nor unless an action for its collection shall be brought against the corporation within two years after the debt becomes due, and no action shall be brought against a stockholder after he shall have ceased to be a stockholder for any debt of the corporation, unless brought within two years from the time he shall have' ceased to be a stockholder.”

It will be noticed that the Banking Law (§ 52) expressly refers to the Stock Corporation Law, and the latter, in its classification as to what is to be considered as a stock corporation within the meaning of that law, in addition to a-transportation and a business corporation, also includes a moneyed corporation,, which latter again is defined by section 3 of the law as one “ formed under or subject to the Banking or Insurance Law.” . It is clear, therefore, that the provisions of the Stock Corporation Law embrace a banking corporation and are applicable thereto, and where a liability is created against the stockholders by the Banking Law, the provisions of the Stock Corporation Law limiting such liability must be considered. Our (Conclusion upon this branch of the case is, that the learned judge below was correct in holding that section 55 of the Stock Corporation Law was to be construed in connection with section 52 of the Banking Act.

It must be remembered that the latter is a special law applicable to banks and creating a liability with respect to the stockholders thereof, while the Stock Corporation Law is a general law, applicable not only to banks, but to other classes of corporations in most respects dissimilar to a bank. In construing a general law applicable to different and dissimilar corporations, it is proper that such a construction should not be given to it as would render it unreasonable or meaningless. There is, therefore, much force in the contention that if all the provisions of section 55 of the Stock Corporation Law are to be literally consolidated with section 52 of the Banking Law, it would be impracticable to pursue a stockholder of a banking corporation, and the liability created in favor of creditors would be taken away; because such liability, so far as the stockholders of a bank are concerned, never would arise until the insolvency of the bank, which when it occurs is followed by the placing of a temporary receiver in possession of the property, whose position is usually fortified by an injunction restraining any action on the part of creditors; and by express provision of law (Code Civ. Proc. § 1806) such a restraining order is part of the judgment of dissolution, which it is provided shall have the same effect as if each creditor upon whom it is served was named therein and was a party to the action in which it is granted.” There are cases which are seéming authority for the proposition that where the performance of conditions precedent is rendered impossible by the act of the law then such performance is excused and dispensed with. (Shellington v. Howland, 53 N. Y. 371, 375; Kincaid v. Dwinelle, 59 id. 548; Flash v. Conn, 109 U. S. 71; Hardman v. Sage, 124 N. Y. 25, 31; Nat. Tradesman's Bank v. Wetmore, 124 id. 241.)

Whether allegations showing that the plaintiff could not obtain or was prevented from obtaining a judgment and the issuance of an execution against the bank would be sufficient, is a question that we are not called upon now to decide, and which is reserved until it is directly presented, it being sufficient, so far as this appeal is concerned, tp point out that this complaint nowhere alleges facts showing that the defendants or others have rendered the requirements of the statute impossible of performance. This we agree must appear, for where a liability is to be predicated upon the compliance by the plaintiff with certain conditions, the complaint must allege either such compliance or such facts as would • show that compliance was impossible.

There is a statement that by the final judgment creditors were restrained from instituting any action against the bank; but as this final judgment was not entered until some months subsequent to the commencement of the People’s suit, there was a period during which, so far as it now appears, an.action could have been instituted. If, therefore, from the commencement of the People’s suit, the corporation had been enjoined from the exercise of its corporate powers, and the temporary receivers of its property had been appointed at the same time, and creditors enjoined from proceeding against it, these facts should appear, or some reason should be given for plaintiffs failure to proceed and comply with the conditions entitling him to maintain his action. In addition to this objection, we think that where no judgment is alleged, it should at least be shown that there is an indebtedness which upon presentation to the corporation or its receivers has been allowed, and the facts in connection with such indebtedness should be made to appear in such a way that the court can determine whether or not it was contracted subsequent to the passage of the act of 1892. The statements that the bank was indebted to the plaintiff, and that plaintiff had duly deposited, are conclusions. These may be true, and still plaintiff have no action.

As against a stockholder, allegations of the time when the debt was contracted and when it became due are important, for a stockholder is not liable “ for any debt of the corporation not payable within two years from the time it is contracted, nor unless an action for its collection shall be brought against the corporation within two years after the debt becomes due.” And again, to hold a stockholder, the plaintiff should state, not only that he made a deposit of money during the time that the person whom he seeks to hold-liable was a stockholder, but that he made such deposit without any condition or limitation, and in such form as to entitle him to demand his money at any time; because, for aught that appears, the deposit may have been a special one payable on demand, or in years, or for some special purpose, or conditionally, and thus be an obligation of the corporation for which the stockholder may not be liable. Whether the debt was one contracted before or after the present law of 1892 is important, because a stockholder’s liability prior thereto was fixed by article 8, section 1, of the Constitution, which confined the liability to stockholders of banks issuing notes or paper credits to circulate as money. By the act of 1892 the liability was enlarged, so that it is no longer necessary to show that the bank was engaged in issuing bank notes, but this should appear if recovery is sought for a debt contracted prior to 1892.

Apart, therefore, from the main question, which has been, reserved, we think the other objections to .the complaint, some of which we have pointed out, were sufficient to justify the conclusion reached by the learned judge at Special Term in sustaining the demurrer, and that the judgment appealed from should be sustained, with costs, but with leave upon payment thereof to amend

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

Judgment affirmed, with costs, but with leave upon payment thereof to amend.


author: Eollett, J.:

text:
    Joseph B. Schram, Plaintiff, v. Henry Werner and Others, Defendants.

      Motion ft»' the direction of a verdict — when questions of leva only will he reviewed — • motion fen'a new trial — exceptions improperly ordered thereafter to he heard at General Term.

    "Where upon the close oí the evidence taken upon the trial of an action, the defendant moved that a verdict he directed in his favor, which was denied, and no exception was taken, and the plaintiff moved that a verdict he directed in his favor, which was granted, and the defendant excepted, neither party asking to have any issue submitted to the jury, only questions of law can he raised upon an appeal from the judgment or on a motion for a new trial on the minutes, on a case and exceptions.
    In case a motion for a new trial is made and denied under section 999 of the Code of Civil Procedure, and an order is entered, it can he reviewed only hy an appeal therefrom. If a motion for a new trial is made on the minutes on exceptions taken, which is denied and an order is entered, an order directing that the exceptions he heard in the first instance at General Term is unauthorized hy the Code of Civil Procedure, and the motion will not he heard hy the General Term of the Supreme Court.
    Motion by the defendants, Henry Werner and others, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit on the 11th day of December, 1893.
    The action was brought to recover the amount of certain drafts or bills of exchange which it was claimed that the plaintiff had paid under the provisions of a written guaranty, and which he sought in this action to recover over from the defendant.

      Albertus Perry, for Joseph B. Schram, plaintiff.

      Natlumiel Myers, for defendant Henry Werner.

      Joseph Fetbretch, for defendant Simon Strauss.
   Eollett, J.:

All of the defendants answered except Samuel Schram, who made default, but Isador Efron did not appear on the trial, and the questions presented by the record arise between the plaintiff and the defendants, Werner and Strauss, doing business under the firm name of Henry Werner. Their answers are identical. At the close of the evidence they moved that a, verdict be directed in their favor, which was denied, but no exception was taken, and the plaintiff moved that a verdict be directed in his favor, which was granted, and the defendants excepted. Neither party asked to have any issue submitted to the jury. Hpon such a record only questions of law can be raised on a motion for a new trial on the minutes, on a case and exceptions or on an appeal. (Provost v. McEncroe, 102 N. Y. 650; Kirtz v. Peck, 113 id. 222.)

After the verdict was directed the defendants moved on the minutes that it be set aside and a new trial granted: (1) On the exceptions; (2) because the verdict was contrary to the evidence; (3) because the verdict was contrary to law, which was denied and an order entered, which, in addition, directed that the defendants’ exceptions be heard in the first instance at General Term, and that judgment in the meantime be suspended. How the exceptions can be heard in the first instance at General Term, under section 1000 of the Code of Civil Procedure, when they have been heard pursuant to section 999, is not apparent to the court. In case a motion for a new trial is made and denied under section 999, and an order is entered which the defeated party desires to review, it can be done only by an appeal from it, but in this case no appeal has been taken. In case a motion for a new trial is made on the minutes, on exceptions taken, which is denied and an order entered, an order directing that the exceptions be heard in the first instance at General Term is not authorized by the Code, and the motion will not be entertained by this court. (Byrnes v. D. & H. C. Co., 7 Wkly. Dig. 549.)

In the case cited a verdict was rendered in favor of the plaintiff and the defendant moved for a new trial on the minutes, which was denied and an order entered. An order was then made directing that the defendant’s exceptions be heard at the General Term in the first instance. The defendant appealed from the order denying the motion for a new trial, which appeal and the motion on the exceptions were heard on the same record. The General Term of the third department held that the order directing the exceptions to be heard at General Term in the first instance was a nullity, but reviewed the case on the appeal from the order. Ross v. Harden (10 J. & S. 427) and Garner v. Mangam (14 id. 365) are sometimes cited as authorities for the position that exceptions may be ordered to be heard in the first instance at General Term after a motion for a new trial has been made on the minutes and denied. In the first of the'cases last cited a verdict was rendered and a motion was made on the minutes for a new trial on the ground that the verdict was contrary to the evidence, was excessive and contrary to the charge, which was denied and an exception taken, but no order seems to have beep entered upon the denial of the motion. Thereupon the exceptions were ordered to be heard at General Term in the first instance, and they were so heard and determined. It will be observed that the motion on the minutes was not founded on exceptions. In the second case cited, a verdict was rendered for the plaintiff, and the defendants moved on the minutes to set it aside and for a néw'trial, which was denied, and an order entered. Thereupon an order was entered directing the exceptions to be heard in the- ;first instance at General Term. A motion was made at'Special Term to. set aside this order, which was denied, and was affirmed on appeal by the General Term of the Superior Court. The report of the case does not show whether the motion for a new trial was founded on exceptions ■ — - errors of the court — as well as on the errors of the jury. On the motion made in the case at bar there were no errors of the jury to review, because it had committed none. The jury had simply returned a verdict in obedience to the direction of the court, and the motion for a new trial could have been made only upon the errors of the court raised by exceptions. 'When a motion for a new trial on. exceptions has been made on the minutes and denied, an order directing the exceptions to be heard in the first instance at General Term is void, and the motion should not be heard. "We must decline to decide the motion on this record, but as the plaintiff has not moved to set aside the order, no costs are granted to either party.

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

Motion dismissed, without costs to either party.