author: Follett, J. :

text:
    Sarah L. Myers and Mary A. Littlewood, Respondents, v. Thomas Bolton and Others, Appellants, Impleaded with John W. Bolton and Another.

      Accounting — when some of several tenants in common are in possession of the land, the relation of lamcUord and tenant exists — their liability to their co-tenants.

    In an action brought to compel an accounting for moneys collected and received from property owned by the parties to the action as tenants in common, it appeared that, in 1880, Ann Bolton was the owner of á tract of land at Bronx-dale, upon which were valuable mills used for manufacturing purposes; she was also the owner of several houses at Bronxdale. Prior to 1880, she leased the right to cut ice from a pond on her land to one Chandler, who enjoyed that privilege, and by whom the stipulated rent was paid, until July 9, 1889. In March, 1880, the defendants, Thomas Bolton, Henry B. Bolton, who were sons, and William H. Birchall, who was an adopted son of Ann Bolton, were partners under the firm name of the Bronx Company, and Ann Bolton leased to the firm a portion of the said tract of land for five years, with the privilege of extending such lease for ten years more at an annual rent payable yearly. Included in these premises leased to the Bronx Company was the pond previously leased to Chandler, who, from the date of the lease to the death of Ann Bolton, paid the rent therefor to the Bronx Company, by which it was credited to Mrs. Bolton.
    In 1883, Ann Bolton died seized of all this property. She left a will wherein she devised and bequeathed the remainder of her estate, which included the mill property, to her seven children and to her adopted son, and nominated Henry B. Bolton and Thomas Bolton as executors, giving them power to sell real estate. From the death of tlie testatrix until July, 1889, one of the houses left by her was rented to and occupied by William H. Birchall. In the last-mentioned year the greater part oí the real estate left hy the testatrix was condemned by the' city of New York for the purpose of establishing Bronx park; damages were awarded, paid and divided among the devisees according to their respective interests.
    In 1887, four of the buildings on the property leased to the Bronx Company were destroyed by Are. The Bronx Company received on account thereof certain insurance moneys and thereafter erected new buildings at a cost of §5,501.05' more than the sum received for the insurance.

      Held, that upon the death of the testatrix the title to her real estate vested in the eight devisees, subject to be divested by the execution of the power of sale contained in the will, and until the power was executed the devisees were entitled to the possession of the realty subject to the then existing leases, and were entitled to collect the rents from the lessees and receive the profits from the portion not leased for their own use;
    That the executors, as such, had no power to collect the rents accruing after the death of the testatrix on the leases made by her, or to receive the income of that portion of the realty not held under such leases.
    It further appeared that the Bronx Company was the agent of the testatrix in her lifetime for the collection of rents from the occupants of the property, and was accustomed to credit her account with the rents due from the firm. After her death the company credited “Ann Bolton’s estate” with the rents due from the firm in an account kept with the estate, and also credited to the estate in that account the rents collected from other tenants occupying the land of the estate, all of which was done with the acquiescence of all the devisees.

      Meld, that by this course of dealing the members of the film became liable to the other devisees for their just proportion of all rents collected after the death of the testatrix, subject to the legal charges for moneys paid out;
    That inasmuch as the Bronx Company occupied a large share of the realty, from the death of the testatrix until it was taken by the city of New York, under a lease by which the firm agreed to pay a stipulated rent, the account should not have been made up upon the theory that the parties to the action were tenants in common, and that consequently none of them were liable to the others for use and occupation of the realty, but that the members of the firm were bound to account to the owners of the property under the rules applicable to cases, between landlord and tenant;
    That the firm could not charge for improvements or betterments made by it, nor-for expenses incurred for the restoration of the buildings in excess of the amount received for insurance;
    That so far as the remainder of the realty, not covered by the lease to the Bronx Company, was concerned, the defendants were liable to account to their co-tenants upon the principles applicable to cases between tenants in common;, that the money having been received by the firm, all the partners knowing the-source from which it came were liable to account therefor to the persons entitled thereto;
    That Birehall should be charged for the rent of the house occupied by him, he. having agreed to pay a stipulated rent for the house which was credited in the.account of the firm with the estate as received; that he was liable to his co-tenants for rent which he had agreed to pay for any part of the property;
    'That said firm should be charged with the amount received from Chandler although the pond from which the ice was cut was on the land leased to the Bronx Company, it being plain from the course of dealing between Ann Bolton in her lifetime and the firm that it was understood between them that the rent ■due from Chandler did not belong to the company but to her, and as after her death the rent was collected by the firm from Chandler and credited to the estate.
    Appeal by tbe defendants, Thomas Bolton and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of .the clerk of the county of New York on the 24th •day of April, 1895, upon the report of a referee.

      Alexander Thain, for the appellants.

      James R. Marvin, for the respondents.
   Follett, J. :

This action was begun April 29, 1889, to compel tbe defendants, Thomas Bolton, Ilenry B. Bolton and William H. Birch all, to account for moneys collected and received from property owned in common by tlie parties to the action. John W. Bolton and Catha-rine E. Bolton were joined as defendants because they refused to be joined as plaintiffs, but no judgment ivas demanded or rendered against them. All of the defendants served a joint answer, and the referee in his report stated the accounts as between all of the parties to the action, finding that Sarah L. Myers, Mary A. Little-wood (plaintiffs), John W. Bolton and Catharine E. Bolton (two of the defendants) were each entitled to recover of Thomas Bolton, TIenry B. Bolton and William H. Bircliall, $3,826.49, with interest from August 1, 1894. A judgment was entered in favor of the plaintiffs for the amount found due them, but no judgment lias been entered in favor of John W. Bolton and Catharine E. Bolton, or either of them. All the testimony in respect to the accounts was given by Thomas Bolton and Henry B. Bolton, two of the appellants, there was no conflict therein, and the appellants are not in a position to urge that the referee should not have believed the evidence. The only other testimony related to the value of legal services rendered upon the retainer of the defendants in matters arising out of the estate, and was given by four attorneys, three of whom were the attorneys and counsel who conducted the trial and whose names appear on the briefs in this court. While. many of the referee’s findings of fact were excepted to by the appellants, none of them were challenged on the argument or are challenged in the brief, except that part of the sixth, by which, it is found that Thomas Bolton and Henry B. Bolton received $1,000 from William IT. Birchall for the use of a house rented to him hy them. Thomas Bolton testified that the Bronx Company, hereinafter mentioned, had an account with Birchall; that the rent was charged to him in that account, and credited to the estate. Under this evidence the referee correctly found that the rent had been paid by Birchall and had passed into the hands of the three appellants who composed the firm of the Bronx Company.

The findings of fact must he accepted by this court as supported by the evidence.

In 1880 Ann Bolton was the owner of a tract of land at Bronx-dale, which was divided hy the Bronx river, the land on the west side being in the city of New' York, and that on the east side in the town of Westchester. On this land were valuable mills used for the purpose of manufacturing. She was also the owner of several houses at Bronxdale. Prior to March, 1880, she leased to A.. C. Chandler the right to cut ice from a pond on her land, for $600 per year. The lessee enjoyed the privilege, and paid the stipulated rent until July 9, 1889. In March, 1880, Thomas Bolton, Henry B. Bolton and William IT. Birchall were partners under the firm name of the Bronx Company, and March 1, 1880, Ann Bolton leased to the firm a portion of the tract of land divided by the Bronx river, for five years, from March 1, 1880, with the privilege of ten years, for the annual rent of $4,500, payable yearly. The pond from which the privilege to cut ice had been previously granted to Chandler was part of the premises leased to the com-j)any, but from the date of the lease to the death of Ann Bolton the Bronx Company collected the rent from Chandler and credited it to Mrs. Bolton. September 29, 1882, A.nn Bolton died, seized of all this property, and leaving. Thomas Bolton, Henry B. Bolton, John W. Bolton, sons, Catharine E. Bolton, Emily B. Norris, Sarah L. Myers and Mary A. Littlewood, daughters, her only heirs and next of kin. 'William IT. Birchall, a nephew, had been adopted by her, and reared in the family as her son. She left a will, by which she bequeathed to her daughter Catharine her household furniture and clothing, devised to Henry B. Bolton a house and lot, and bequeathed $1,500 to her executors, to be invested, and the income to be paid to the trustees of a church. She devised and bequeathed the remainder of her estate to her seven children and to her adopted son, to be divided equally among them. She nominated her sons Henry B. and Thomas Bolton as executors, giving them power to sell and convey any or all of her real estate at public or private sale. November 20, 1882, the will was duly admitted to probate by the Surrogate’s Court of the county of Westchester, and letters testamentary thereon were issued to the executors therein nominated, who immediately entered upon the discharge of their duties, and have ever since continued to act as executors. From the death of the testatrix until July 9, 1889, one of the houses left by her was rented to and occupied by William H. Birchall, for $150 per year. In 1887 Emily B. Norris died intestate,'leaving no descendants, but leaving a husband, to whom letters of administration on her estate were granted October 11,1889, and November 22,, 1889, he assigned his wife’s share of the rents arising from the estate of Ami Bolton to Thomas Bolton and Henry B. Bolton. On the 9th of July, 1889, the greater part of the real estate left by the testatrix was condemned by the city of New York, under chapter 522 of the Laws of 1884, for the purpose of establishing Bronx park and parkways, for which $267,324.40 damages were awarded, paid and divided among the devisees according to their respective interests. In April, 1887, four of the buildings on the property leased to the Bronx Company were destroyed by fire, on account of which $28,000 was received by the company from insurance companies for the loss. Thereafter the firm erected new buildings at a cost of $5,501.05 more than the sum received for insurance.

Upon the death of the testatrix the title to her real estate vested in the eight devisees, subject to be divested by the execution of the power of sale contained in the will, and until the power was executed the devisees were entitled to the possession of the realty, subject to the then existing leases, and were entitled to collect the rents from the lessees and receive the profits from the portion not leased for tbeir own use. The executors, as such, had no power to collect the rents accruing after the death of the testatrix on the leases made bj her, or to receive the income of that portion of the realty not held under such leases. (Matter of Bolton, 5 Misc. Rep. 475; Clift v. Moses, 44 Hun, 312; affd., 116 N. Y. 144.)

The Bronx Company was the agent of the testatrix in her lifetime for the collection of the rents from the occupants of the property, and was accustomed to credit her in account with rents due from the firm. After her death the company credited “ Ann Bolton’s estate” with the rents due from the firm in an account kept with the estate, and also credited to the estate in that account the rents collected from other tenants occupying the land of the estate. This seems to have been done by the acquiescence of all the devisees. In this account the firm charged the estate with taxes, insurance and other expenses paid. By this course of dealing the members of the firm became liable to the other devisees for their just proportion of all rents collected after the death of the testatrix, subject to the legal charges for moneys paid out. The amount due the estate of Ann Bolton for rents collected by the firm prior to her death belonged to her executors, who have accounted therefor in the Surrogate’s Court. Such rents are not involved in this suit.

The appellants insist that the accounting should have been upon the theory that the parties to this action were tenants in common, and that none of them were liable to the others for use and occupation of the realty. The error of this position arises from the fact that the Bronx Company occupied a large share of the realty from the death of the testatrix to July 9, 1889, when it was taken by the city, under a lease by which the firm agreed to pay rent at the rate of $4,500 per year. The individual members .of this firm were not in possession as tenants in common of the realty covered by the lease, but the firm was in possession as tenants upon a stipulated rent, and the members of that firm must account to the owners of the property upon the rules applicable to cases between landlord and tenant. As tenants holding under a lease, the firm cannot charge for improvements or betterments made by it, nor for expenses incurred for the restoration of the buildings in excess of the amount received for insurance. "Whether the policies from which the appellants received $28,000 insured the interests of all the owners or only ilie interest of the firm, does not appear, but that question is not material because the appellants have not been charged with that sum, though credited with premiums paid. The remainder of the realty not covered by the lease to the Bronx Company was leased to other persons, the tenants paying rent at stipulated rates, which was collected by the company. For such rents the defendants are liable to .account to their co-tenants upon the principles applicable to cases .between tenants in common. The case does not show that the appellants made airy improvements upon the property not covered by their lease, or that they expended any sums on account thereof which were not credited to them by the referee. It is urged that the three appellants should not have been charged for rents severally collected by the two executors, Thomas and Henry B. Bolton. This would be an unanswerable proposition had it not appeared by the evidence of the defendants themselves that the amounts so collected were paid over to the firm of which the three appellants were members. The firm having received this money, all the partners knowing the source from which it came, are liable to account therefor to the persons entitled thereto.

It is urged that Birchall should not have been charged for the rent of the house occupied by him. He was not, directly as an individual. He had agreed to pay a stipulated rent for the house, and it was credited in the account of the firm with the estate as received. Birchall is liable to his co-tenants for rent which he had agreed to pay for any part of the property.

It is urged that the referee erred in charging the appellants with the amount which they credited the estate, as received from Chandler, upon the ground that the pond from which the ice was cut was on the land leased to the Bronx Company. Although the appellants’ lease did in terms cover the pond, it is plain from the course of dealing between Ann Bolton in her lifetime and the firm that it was understood between them that the rent due from Chandler did not belong to the company, but to her; and after her death the rent was collected by the firm from Chandler and credited to the estate, thus clearly showing that the rent from Chandler did not belong to the Bronx Company.

The appellants insist that the court erred in not allowing them the amount which was found -due to the executors from the estate of tbe testatrix on. their accounting in' tbe Surrogate’s Court. To tbis there are several answers: (1) Tbe amount found due tbe executors on tbe accounting was not established on the trial of tbis action; (2) that amount, whatever it was, is not a claim in favor of tbe three appellants, but it is a claim of two of tbe appellants in tlieir representative capacity; (3) tbis independent claim of tbe executors against tbe estate is not set up in tbe answer in tbis action as a counterclaim.

There is no reason for dismissing the complaint against Catha-rine E. and John W. Bolton; no claim was made against them, and they were made parties defendant simply because they would not join as plaintiffs. They filed no exceptions and have not appealed. It was not error to refuse to credit tbe appellants with tbe $1,819.63 paid by Thomas Bolton, March 31, 1887, on tbe bond, held by Sarah L. Bolton, for tbis sum bad been charged in tbe executors’ account rendered in tbe Surrogate’s Court, and had there been allowed to them.

It appears that one Girsch held a mortgage upon three bouses belonging to tbe estate which was given by Ann Bolton in her lifetime. One of these bouses was devised to Henry B. Bolton, who with Thomas Bolton agreed between themselves that $1,500 of tbe principal sum should be charged upon Henry’s bouse and $500 should be charged upon tbe premises devised to tbe eight devisees. Tbis mortgage had been paid by tbe firm and charged on its books, three-fourths of tbe sum paid to Henry B. Boltop and one-fourth of it to tbe estate, according to tbe agreement, and tbe referee credited tbe appellants, with tbe amount charged by them against tbe estate. In tbis there was no error.

After issue was joined in tbis action tbe parties stipulated that tbe trial involved tbe examination of a long account, and that it be referred to "William M. Hoes to bear and determine, and an order was entered. On the trial tbe defendants moved that tbe complaint bo dismissed on tbe ground that tbe causes of action set out therein were legal and not equitable ones. An action for tbe recovery of such a sum of money as may be found due on an accounting will not be dismissed upon tbe trial on tbe ground that an action at law might Lave been maintained for tbe recovery 'of tbe money demanded. An action for tbe recovery of tbis sum, either at law or through an accounting, required the examination of a long account and could not be tried before a jury. Under the reformed procedure such actions are not dismissed because erroneously named or because allegations appropriate to a legal cause of action are contained in the complaint in a suit for equitable relief.

The action seems to have been carefully and fairly tried and disposed of by the learned referee, and we find no error in the record calling for the reversal of the judgment, which should be affirmed, with costs.

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

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Follett, J.:

license: Public Domain

text:
    Dennis Doyle, Appellant, v. Mitchel A. C. Levy, Respondent.

      Slander — evidence admissible — offer to compromise.

    Upon the trial of an action brought to recover damages for an alleged slander, it is incompetent for the plaintiff to prove the utterances of prior slanders, or the publications of prior libels, actions for which are not barred by the Statute of Limitations.
    The fact that the defendant offered to compromise a suit is not competent evidence in the case.
    The complaint in an action brought to recover damages for an alleged slander, stated that on November 1, 1891, and on March 3, 1892, the defendant, in the hearing of a number of persons, said concerning the plaintiff, “ That man Doyle is keeping a disreputable house at No. 84 West Fourth street; I mean by that it is a house of prostitution and especially on the top floor.”
    The defendant in his answer set up the following defenses : (1) He denied speak- , ing the words; (2) he alleged that the plaintiff at the dates mentioned was keeping a house of prostitution at 84 West Fourth street, and (3) that the defendant was the owner of the premises; that the plaintiff was in possession under a lease from a former owner and that whatever the defendant said in respect to the character of the house was to police officers and to the members of the board of excise and was privileged.
    The court refused to permit the plaintiff to prove what the defendant had said about the steps he was taking to break the lease, but there was no dispute on the trial about the fact that the defendant was trying to get rid of the plaintiff as a tenant because of the disreputable character of the house kept by him.

      Hell, that the fact that a witness was not permitted to state precisely what defendant said about the steps he was taking to break the lease did not constitute error.

      A witness called by the plaintiff was asked: “Q. Was there any part of that house so used that anybody could have any belief that it was kept as a disreputable house?” The question was objected to and the objection was sustained.

      Held, that what anybody could have believed in respect to the house was irrelevant, and that the question on its face was improper.

      A witness called by the plaintiff testified that three or four months before the plaintiff took possession of the premises he occupied a portion of them for himself and family, which testimony was objected to, and the objection was sustained and an exception was taken.

      Held, that it did not appear whether the objection was taken to the evidence which had been given, or the evidence which it was anticipated might be given, and that the court did not err in sustaining the objection.
    Also, that it was not error for the court to refuse to strike out the word “solicited ” and require a witness to state the precise words used by a female who accosted him.
    Appeal by tbe plaintiff, Dennis Doyle, from a judgment of tbe Supreme Court in favor of tbe defendant, entered in tbe office of tbe clerk of tbe county of New York on the 20th day of January, 1894, upon tbe verdict of a jury rendered after a trial at tbe New York Circuit; also, from an order bearing date tbe lYtli day of January, 1894, and entered in said clerk’s office denying tbe defendant’s motion for a new trial made upon tbe minutes, and also from an order made at the New York Special Term and entered in said clerk’s office on the 14th day of March, 1894, denying tbe plaintiff’s motion for a new trial on tbe grounds of surprise and newly-discovered evidence.

      Thomas F. Byrne, for tbe appellant.

      Franklin Pierce, for tbe respondent.
   Follett, J.:

This action was begun March 18,1892, to recover damages for an alleged slander. It is alleged in tbe complaint that November 1, 1891, and March 3,1892 (two causes of action not separately stated), the defendant, in tbe bearing of a number of persons, spoke concerning tbe plaintiff these words: That man Doyle is keeping a disreputable house at No. 34 "West 4th street; I mean by that it is a bouse of prostitution and especially on tbe top floor.” By bis bill of particulars tbe plaintiff substituted for tbe first cause of action an alleged libelous letter of October 28, 1891, of tlie writing of which, no evidence was given.

The defendant in his answer set up three defenses: (1) ITe denied speaking the words; (2) that the plaintiff at the dates mentioned was keeping at 34 West Fourth street a house of prostitution: a justification; (3) that lie (defendant) was the owner of the premises ; that plaintiff was in possession under a lease from a former owner, and that whatever he said in respect to the character of the house was to police officers and to the members of the board of excise, and was privileged. The plaintiff kept a liquor saloon at No. 34 West Fourth street, which his own witnesses testified was frequented by prostitutes, but they did not testify that the frequenters carried on their occupation in that building.

Without stating the evidence, it fully justified the jury in finding a verdict of no cause of action on the ground that defendant’s saloon was the resort of prostitutes and disorderly persons.

The exceptions at folios 58, 64, 67 and 141 are so clearly frivolous as not to require discussion. At folio 70 the court refused to permit the plaintiff to prove what the defendant said about the steps he was taking to break the lease. There was no dispute on the trial about the fact that the defendant was trying to get rid of the tenants in Nos. 34 and 36, occupying under leases from the former owner, because of the disreputable character of the places kept at those numbers, and the fact that one witness was not permitted to state precisely what defendant said about the steps he was taking, was not error. The witness ITarmon, called by the plaintiff, who had been employed by the defendant to obtain evidence as to the character of the business conducted at No. 34, testified that he was employed “ with regard to the excise -of No. 34.” “ Q. What did he say in regard to that ? ” This was objected to by the defendant and excluded. What fact the plaintiff proposed to show is not disclosed by the record. On the face of the record.it does not appear that the plaintiff proposed to prove any fact relevant to the issue. The witness Haggerty, called by the plaintiff, was asked: “Q. Was there any ¡Dart of that house so used that anybody could have any belief that it was kept as a disreputable house % ” This was objected to and the objection sustained. This question, on the face of it, is improper. What anybody could have believed in respect to it was entirely irrelevant. Matthews, a witness ealled by the plaintiff, testified that three or four months before the plaintiff took possession of the premises lie occupied a portion of them for himself and family. An objection was taken to this evidence and sustained, whereupon the plaintiff excepted. Whether the objection was taken to the evidence which had been given, or to evidence -which it was anticipated that he might give, does not appear, and the court did not err in sustaining the objection. The plaintiff was asked whether the defendant offered to give him a new lease if he would discontinue this action, which was objected to and excluded. It is difficult to see how a proposition to give-a new lease, based upon a settlement of the suit, was competent. The fact that the defendant offered to compromise the suit-was not competent. The plaintiff was not permitted to testify that-the police captain of the precinct, in the absence of the defendant, asked to examine the premises to see whether they were disreputably kept or not. This was an occurrence between others when the defendant was not present, and was immaterial. Ryanj a witness called in behalf of the plaintiff, was asked : “ Q. In March, 1892, did Mr. Levy complain to you of No. 36 as being a house of prostitution ? ” This was objected to and the objection sustained. The plaintiff did not occupy No. 36, and this action relates to his conduct in respect to No. 34. It was not error for the court to refuse to strike out the word “ solicited ” and require the witness' to state the precise words used by the female who accosted him. The words were not in issue, and it was entirely permissible for the witness to describe in general terms the conduct of the woman. Whether the neighborhood of the plaintiff’s place of business was frequented by lewd women was not material. If he harbored them and kept a place for their resort he was as guilty of keeping a disorderly house as though his place of business had been in a part of the city not infested with them. The defendant was permitted to show that colored women went to and fro between the plaintiff’s place of business and a negro bath house, which, the witness testified, was reputed to be a disorderly place. The witness described the persons who passed between these places, and his statement that the bath house was represented to be a “ fancy house ” does not call for a reversal of the judgment. The rulings upon the admission and exclusion of evidence, above discussed, are typical of all those urged as erroneous in the brief of the appellant, and we are unable to see that any of them could by any possibility have prejudiced the plaintiffs case.

Prior to May, 1890, the plaintiff occupied No. 30 West Fourth street, and on the twenty-fourth of that month he removed to No. 34, where he kept a liquor saloon for three years. The plaintiff testified : I first saw Mr. Levy (defendant) about May, 1890, at the Excise Board. He wrote a letter having my license — ” At this point an objection was raised which was sustained, and the plaintiff’s sentence was not completed. It is not alleged in the complaint that the defendant, in May, 1890, libeled or slandered the plaintiff, and it was incompetent for the plaintiff to prove the utterance of prior slanders or the publication of prior libels, actions for which were not barred by the Statute of Limitations. (Distin v. Hose, 69 N. Y. 122.) The plaintiff did not offer to show that the defendant wrote or said any particular thing to the excise board in May, 1890, or in May, 1891. If the letter was deemed to be competent it should have been offered, so as to enable the court to determine whether it was admissible or not. If the plaintiff wished to show that the. defendant entertained malice towards him, he should in some way have indicated that the testimony called for related to that subject. There was no foundation for the plaintiff’s motion for a new trial on the ground of surprise or newly-discovered evidence. The defendant justified in his answer the speaking of the words alleged in the complaint, and the plaintiff should have been prepared to meet this issue, and he was, for he gave evidence upon that issue. The fact that witnesses not called and sworn on this issue, will testify that they knew the place and did not know that it was the resort of disorderly persons, is no reason for granting a new trial.' The plaintiff kept this ¡olace for three years, knew liis customers and the persons who were accustomed to resort there, and he should have been prepared -to, meet the issue tendered by the answer.

After reading the evidence we are satisfied, first, that it was not established that the defendant uttered the precise words charged in the complaint; second, that if he did they were true ; and, tJdrd, that whatever the defendant did or said ivas to rid the premises of disorderly tenants who were in occupation under a lease from a former owner. The verdict was right on the merits, and the judgment and orders should be affirmed, with costs.

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

Judgment and orders affirmed, with costs.


text:
    David V. Howell, Respondent, v. John Schuyler Crosby, Appellant.

      Action at 1cm to recover under a contract — when an accounting in equity is unnecessary— necessary parties — referee’s conclusions different from the claims of either party.

    In an action brought to recover a sum oí money alleged to be due under a contract between the plaintiff and the United States, by which the plaintiff agreed to construct a pier for a lighthouse, and to secure the faithful performance of which the defendant and one Leonard W. Jerome executed an undertaking conditioned to that effect, it appeared that the plaintiff had appointed the defendant his attorney to collect from the United States all sums of money which should come due on the contract, and that defendant at the same time had entered into a contract under seal with the plaintiff, by which he bound himself to pay to the plaintiff forty per cent of all the profits made on the contract, and to one Emil Yon Trentini twenty per cent; the remaining forty per cent to be retained by the defendant as compensation for furnishing the surety and for his services.
    In respect to the items making up the sum in dispute the evidence was very unsatisfactory and inconclusive. The books and vouchers, which were kept by the defendant and Yon Trentini, had been carried to Europe, and were not produced on the trial, although notice to produce them had been given. Yon Trentini, by his evidence, admitted that he had received the full share to which he was entitled from the defendant, and the defendant did not set up in his answer that Yon Trentini was a necessary party to the action, or that an accounting among the three was necessary.

      Held, that the defendant could properly bo hold liable in this action for the amount found duo by him to the plaintiff, and that it was not necessary for the plaintiff to resort to an equitable action for an accounting;
    That the fact that notice had been given by the plaintiff to the defendant to produce the books of account, and that they had not been produced, might be considered by the referee in determining the validity of the defendant’s account;

      That, although the referee’s conclusion might be inconsistent with the evidence given cn either side, in view of the meagre material furnished for a judgment, the books-and vouchers being absent and under the defendant's control, and of the fact that the referee was compelled to determine what items should be allowed and what disallowed by substantially allowing such as were agreed upon between the parties, that he did not err in not adopting the claims of either side.
    Appeal by tbe defendant, Jolm Schuyler Crosby, 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 18th day of March, 1893, upon the report of a referee.

      DeLancey Nicoll and Noel Gale, for the appellant.

      Frederick H. Man, and John C. Coleman, for the respondent.
   Follett, J.:

This action was begun December 18, 1882, to recover a sum of money alleged to be due under a contract entered into between the litigants January 15, 1875.

September 24, 1874, the plaintiff entered into a contract with the United States, by which he agreed to construct a pier for a lighthouse at Middle Ground, Stratford Shoals, L. I. On the same day the defendant and Leonard W. Jerome, a$ sureties, executed an undertaking to the United States conditioned that the plaintiff should faithfully perform his contract. January 15,1875, the plaintiff appointed the defendant his attorney to collect from the United .States all sums of money which should become due on the contract, the defendant at the same time entering into a contract, under seal, by which he bound himself to pay to the plaintiff forty per cent and to Emil Yon Trentini twenty per cent of all the profits made on the contract. The remaining forty per cent was to be retained by the defendant as compensation for furnishing the security to the government and for his services in collecting and disbursing the money in the construction of the pier. Yon Trentini’s twenty per cent was to compensate him for keeping the accounts necessary to be kept in the prosecution of the work. In November, 1875, the contract was performed and the work accepted by the government, which paid to the defendant, as attorney for the plaintiff, $81,301.85.

The foregoing facts are not in dispute, and are found by the referee. The plaintiff testified that the defendant had paid out $60,705.11. Yon Trentini testified that he had paid out $69,161.34, there being a difference of $8,456.23. The referee found that the defendant had paid out $60,805.11.

The referee reached his conclusion on the following basis :

Received by defendant. $81,301 85
Expended by defendant. 60,805 11
Oasli in defendant’s hands. $20,496 74
Property.
Schooner “ Lorillard ”. $3,000
Steam engine. 675
Tools. 300
- 3,975 00
'$24,471 74
Plaintiff’s share, forty per cent. $9,788,696
Defendant’s share, forty per cent. 9,788.696
Yon Trentini’s share, twenty per cent.... 4,894.348
- 24,471 74

The referee found that the plaintiff had received from the defendant $2,000 in cash; that the plaintiff had the schooner and the tools, valued at $3,300, making the total of $5,300 which the plaintiff had received, leaving a balance due him of $4,488.69, for which a judgment was ordered, with interest from December 18, 1882, the date of the commencement of this action.

The principal controversy before the referee was over the difference of $8,456.23, which sum the defendant asserted he had paid out over and above the amount admitted by the plaintiff to have been paid out by the defendant, and over the value of the schooner Lorillard. The witnesses who testified as to the value of the Lorillard varied in their estimates from $1,000 to $5,000. Two of defendant’s principal witnesses valued the boat at $3,000. The value fixed by the referee, $3,000, is fully sustained by the evidence, and it cannot be successfully asserted that under it the vessel was undervalued to the injury of the defendant. In respect to the items making up the disputed sum of $8,456.23 the evidence is very unsatisfactory and inconclusive, and it is quite impossible to say that the referee erred in disallowing this sum. The books and vouchers which were kept by the defendant and Yon Trentini had been carried to Europe and were not produced on the trial, although notice to produce them had been given. This was a circumstance which the referee had a right to take into consideration in determining the validity of the defendant’s account as presented.

"Whether the litigants and Yon Trentini were partners as to third persons is not material. Under their written contract they were not partners as between themselves. It nowhere appears that the defendant and Yon Trentini assumed any liability in case the enterprise proved to be unprofitable. Each of them was to have a definite proportion of the profits for his services, and the defendant agreed by his written contract, under seal, that lie would collect all sums due from the government and pay over to the plaintiff forty per cent of the profits of .the enterprise. Yon Trentini by his evidence admits that he has received his full share from the defendant and makes no claim, so there is no accounting to be had as among the three. A decision of the controversy simply required the ascertainment of the amount received by the defendant, admitted to. be $81,301.85, and the amount which he had expended. The defendant did not set up in his answer that Yon Trentini was a necessary party to the action, or that an accounting among the three was necessary, and he was permitted to give all the evidence which he offered tending to establish payments on his part, and we think, under the written contract, the defendant could be properly held liable in this action for the amount found due from him to the plaintiff -without resorting to an equitable action for an accounting.

In August, 1878, the plaintiff filed a voluntary petition in bankruptcy, to which was annexed an inventory of his assets. The defendant offered to show that under the head of “ dioses in Action” the plaintiff did not include any claim against the defendant arising out of the contract on -which the action was brought. This evidence was excluded, and it. is urged as a ground of error. It is argued that the fact that the plaintiff then swore that he owned no such claim as he seeks to enforce in this action, was competent. It would have been, had not the fact been fully explained. In March, 1881, the plaintiff wrote .the defendant that he had assigned this claim, which letter was put in evidence by the defendant, and upon the cross-examination of tlie plaintiff it was shown, and not disputed, that be bad previously assigned the claim and that it had been re-assigned to him. It is urged that the referee’s conclusion is inconsistent with the evidence on either side. It is quite evident from the meagre materials furnished for a judgment, the books and vouchers being absent and under the defendant’s control, that the referee was compelled to determine wliat items should be allowed and what disallowed by substantially allowing such as were agreed on between the parties, and that he did not err in not adopting the claims of one side or the other.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Michael Bowen, Respondent, v. Michael Sweeney and Catherine Gallagher, Appellants, Impleaded with Others.

      Probate of a will entered pursuant to the verdict of a jury upon issues tried— not a bar to an action attaching the validity of a will as to real estate devised thereby.

    One Mary T. Hatten died, seized of a piece of real property situated in the city of Hew York. She left a last will and testament which was admitted to probate by the Surrogate’s Court of New York county. Subsequently the decree of the Surrogate’s Court was reversed by the General Term of the Supreme Court, which ordered certain issues to be tried before a jury in the Court of Common Pleas. Upon the trial of the issues in the Court of Common Pleas, the validity of the will was sustained, and the proceedings upon the trial having been returned to the Surrogate’s Court, a decree was entered confirming the probate of the will. No appeal was taken from the final decree of the surrogate admitting the will to probate.
    Subsequently the present action was begun to partition said real estate upon the ' theory that the plaintiff was an heir at law of the said Mary Hatten, and that the apparent devise of the property by the will was void.
    By their answers the devisees in the will denied that the devise was void, and set up as a bar to the action the final decree of the Surrogate’s Court admitting the will to probate. This action was tried at a Circuit Court before a jury which found that the testatrix, at the time she executed the alleged will, was not of sound mind, and that said instrument was not her last will and testament.

      Held, that although the will was admitted to probate after the trial of issues before a jury which found in favor of the validity of the will, upon which an adjudication -was entered by tlie Surrogate’s Court decreeing the probate to be valid, nevertheless that an heir might, notwithstanding such decree, retry the question oí its validity as to the realty, and might obtain a verdict and a judgment that the will was invalid ; and that a decree entered in this case upon the verdict of the jury in the Court of Common Pleas was not a bar to the present action for partition.
    Appeal by the defendants, Michael Sweeney and another, from a final judgment of partition of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of March, 1895, upon the report of a referee, with notice of an intention to bring up for review on such appeal an interlocutory judgment of partition and sale entered in said clerk’s office on the 13th day of July, 1893, upon the verdict of a jury, and also an order made at the New York Special Term and entered in said clerk’s office on the 6th day of November, 1893, denying the defendants’ motion to set aside the verdict.
    August 27, 1885, Mary T. ITatten died seized in fee simple of a piece of land situate at the northwest corner of First avenue and Thirteenth street, in the city of New York, which is forty-threi^ feet and three inches wide on the avenue and eighty feet long on the street. She left a last will executed April 17, 1880, by which she devised and bequeathed all of her estate to Michael Sweeney and Catherine Gallagher, to be divided equally between them. The will was admitted to probate October 18, 1886, by the Surrogate’s Court of the city and county of New York. (3 N. Y. St. Repr. 213.) August 20, 1887, the decree of the Sux-rogate’s Coui't was reversed by the Genei’al Term of the Supreme Court (10 N. Y. St. Repr. 19), which ordered that the following issues be tried before a jury in the Court of Common Pleas:

      First. Whether the decedent ever saw the paper propounded for probate as her last will and testament until it was presented to her for execution.

      /Second. Whether the paper propounded for probate as the last will and testament of Mary Tei’esa Hatten was read by her or any one aloud in her healing previous to the signing thereof.

      Third. Whether the decedent, at the time of signing the paper propounded for probate as her last will and testament, had full knowledge of the contents of the said paper.

      Upon the trial of these issues all of them were answered in the affirmative by the jury. On the 16th of November, 1888, the proceedings upon the trial were returned to the Surrogate’s Court, and on that date a decree was entered confirming the probate of the will. The litigants in this action were parties to the proceedings in the Surrogate’s Court and appeared on the trial in the Court of Common Pleas. No appeal was taken from the final decree of November 16, 1888, of the Surrogate’s Court.
    October 10,1888, this action was begun to partition said real estate, pursuant to section 1537 of the Code of Civil Procedure, upon the theory that the plaintiff was an heir at law of Mary T. Iiatten, and that her apparent devise of the property to Michael Sweeney and Catherine Gallagher, was void.
    The contesting defendants, Michael Sweeney, Catherine Gallagher and Francis Gallagher, her husband, denied in their answers that the devise was void, and set up as a bar to this action the final decree of the Surrogate’s Court admitting the will to probate. The other defendants who answered admitted the allegations in the complaint.
    In November, 1889, the action was tried at Circuit before a jury and the following questions submitted:
    (1) Did Mary T. Iiatten know that the paper she executed was a last will and testament ?
    (2) Was'Mary T. Hatten procured to execute the paper, purporting to be a will, by the conspiracy of Michael Sweeney, Catherine Gallagher and others?
    (3) Had Mary T. Hatten capacity to make a will ?
    The first two questions were answered in the affirmative and the third question in the negative by the jury. Thereafter the trial was concluded at Special Term, the verdict confirmed, and a judgment of sale ordered, in accordance with which a judgment was entered September 22, 1890. Upon an appeal to the General Term this judgment was reversed, and a new trial granted, on the grounds that the Circuit Court erroneously allowed the complaint to be amended and excluded competent evidence. (63 Hun, 224.)
    In March, 1892, the plaintiff, pursuant to leave granted, served a second amended complaint, and the issues joined thereon were tried at Circuit in June, 1893, and the following questions submitted to the jury:

      1. At or immediately after tbe time wlien Mary Teresa Hatten signed tlie said paper writing, dated tbe 17 th. day of April, 1880, purporting to be ber last will and testament, and mentioned in tbe complaint herein, did sbe publish and declare tbe same to be ber last will and testament ?
    2. Was tbe said paper writing obtained from said Mary Teresa Hatten by undue influence exercised upon ber by the defendants, Michael Sweeney, Catherine Gallagher and Eraneis Gallagher, some or one of them ?
    3. Was the said paper writing obtained from said Mary Teresa Hatten by a conspiracy entered into by tbe defendants Michael Sweeney and Catherine Gallagher and some other person or persons for tbe purpose of fraudulently procuring a will in favor of said Michael Sweeney and Catherine Gallagher, in pursuance of which conspiracy they procured the said paper writing to be signed by tlie said Mary Teresa Hatten ?
    4. Was the said testatrix, Mary Teresa Hatten, at the time she executed said paper writing, of sound mind ? ’
    5. Is or is not the said paper writing executed by tlie said Mary Teresa Hatten the last will of the said testatrix ?
    The first question was answered in the affirmative by the direction of the court, the second and third, in the affirmative, by the jury, and the fourth and fifth, in the negative, by the jury. Upon the rendition of tlie verdict a motion was made in behalf of Michael Sweeney and Catherine Gallagher to set it aside, which was denied, and an order entered. Thereafter the trial was continued at Special Term by which the verdict ivas confirmed and a decision rendered directing an interlocutory judgment, which was entered July 13, 1893, adjudging that the property be sold. By tlie interlocutory judgment it is adjudged that the plaintiff is entitled to one-fourth of the premises, Thomas Bowen, defendant, Michael Bowen, Fanny McQueeny, one-twelftli each, Patrick Ford, Francis Ford, Michael Ford, Thomas Ford, one-sixteentli each, Mary Ann Cane and Catherine Ward, one-eightli each.
    In June, 1894, a motion for a new trial was made on the judgment roll and a case at General Term in behalf of Sweeney and Gallagheri The motion was dismissed for want of jurisdiction (19 ITun, 614), and an order entered which was affirmed by the Court of Appeals. (143 N. Y. 349.) .Eebraary 7, 1895, the property was sold, pursuant to the interlocutory judgment, for $51,000, and on filing the report of sale a final judgment was. entered IVIarcli 4, 1895.

      Wm. H. Arnoux, for the appellants.

      Flamen B. Chandler and Robert W. Candler, for the plaintiff, respondent.

      S. B. Chittenden, for Thomas Bowen and others, defendants, respondents.

      William J. Kelly, for Mary Ann Cane and others, defendants, respondents.
   Follett, J.:

As all of the litigants assume that Mary T. Batten died seized in fee simple of the whole' of the premises, we shall rest our judgment on that assumption without considering its validity.

All of the litigants in this action were parties to the proceedings in the Surrogate’s Court to probate the will, to the appeal to the General Term, and to the trial before the Common Pleas. The first question presented is, whether the decree of the Surrogate’s Court, affirming the original probate, entered on the verdict rendered in the Court of Common Pleas, is a bar to this action. At common law the probate of a will in an ecclesiastical court was not conclusive against the heir, and a judgment in an action at law at the suit of the heir, that the testator was incapable of making a. will, was not conclusive against the executor as to the personalty, who, notwithstanding the judgment at law respecting the realty, might, if he could, establish the will as to the personalty in an ecclesiastical court. (Montgomery v. Clark, 2 Atk. 378; Hume v. Burton, 1 Ridg. P. C. 277 ; Bogardus v. Clarke, 1 Edw. Ch. 266; S. C., sub. nom. Bogardus v. Clark, 4 Paige, 623.) Lord Hardwick said in Montgomery’s case: I have often thought it a very great absurdity that a will which consists both of real and personal estate, notwithstanding it has been set aside at law for the insanity of the testator, shall still be litigated upon paper depositions only in the Ecclesiastical Court, because they have a jurisdiction on account of tlio personal estate disposed of by it.” By chapter 77, 20 and 21 Victoria (1857), the rule of the common law has been changed in England, and a decree of a Probate Court admitting a will to probate, which relates to realty and personalty, is binding on the- heir in case he had notice. (§ 62, chap. 77, 97 Pick. Stat. at Large, 420-437.) The rule of the common law arose from its tenderness to heirs and from the idea that none should be deprived of land except by a judgment of a court of law after trial of the issues of fact before a jury. Tinder the first Constitution of this State wills relating to realty might be proved in the Court of Common Pleas (1 R. L. [1801] 179), and after 1813, in the Supreme Court or in the Court of Common Pleas (1 R. L. [1813] 364), and surrogates had the power' to admit to probate wills relating to personalty and to real estate" so far as it was necessary to authorize the issuing of letters testamentary. (1 R. L. [1801] 317; Id. [1813] 444.) Persons aggrieved by any decree of a surrogate were authorized to appeal to the Court of Probates. ‘ (1 R. L. [1801] 325 ; Id. [1813] 454.) Under the second Constitution the Court of Probates was abolished and persons aggrieved by the decree of a snrro-gate were authorized to appeal to the chancellor. (Chap. 70, Laws of 1823.) But the Court of Chancery could not, by its decree, bind the heir in respect to the validity of a will unless the question of fact had been determined in a court of law on the issue devismit vel non, an issue directed by a court of equity to be tried by a jury in a court of law to determine the validity of a will. (Rogers v. Rogers, 3 Wend. 505.) Vanderheyden v. Reid (1 Hopk. 408) was an appeal from a surrogate’s decree admitting a will to probate which related to real and personal property, and turned upon the question of the sanity of the testator. The question arose as to whether this issue could be sent by the Court of Chancery to a court of law to be determined by a jury In discussing this question the learned chancellor said: “ Thus, a will of personal and real estate may be there adjudged both valid and void by different tribunals. This result of an artificial division of jurisdictions can never be proper where it may be avoided. That a will should be adjudged valid because the testator who made it was of sound mind, and that flie same will should be adjudged void because the same testator was insane, is a result which should never take place under one system of laws. But still more singular would be the anomaly if the same court were, in tlie case of a contested will of real and personal estate, bound to send the disputed question to a jury in respect to tlie land, and also bound to decide the same disputed question without a jury in reference to another species of property.

“ Such an incongruity is avoided by taking one course of investigation, whether the will is of real or of personal estate, or of both comprised in one instrument. This court now having jurisdiction of wills of personal goods and also of wills of land, it may most fitly apply the same method of investigating facts to both cases.”

This language seems to indicate that the chancellor was of the opinion that a decree entered upon the verdict,would be conclusive upon the heir. This judgment was, however, reversed (5 Cow. 719), but not upon the point discussed in the foregoing quotation.

In Brick's Estate (15 Abb. Pr. 12, and in 1 E. D. Smith, xvii) will be found a learned and instructive history of the Probate Courts of this State, prior to the Revised Statutes, by Chables P. Daly, the accomplished chief judge of the Court of Common Pleas.

binder the Bevised Statutes wills of reel and personal property, or both, were provable before the surrogate of the proper county. (2 R. S. 51, § 7; Id. 60, § 23.) Any person deeming himself aggrieved by the decree of a surrogate was authorized to appeal to the Circuit judge of the Circuit (2 R. S. 66, § 55), who, in case of a reversal upon a question of fact, was required to formulate issues of fact and order them tried before a jury (§ 51), which were to be tried in the same manner as issues awarded by the Court of Chancery, and new trials could be granted by tlie Supreme Court. (§ 58.) By section 59 (2 B. S. 6b) it was provided : “ The final determination of such issue shall be conclusive as to the facts therein controverted, in respect to wills of personal estate only, upon the parties to the proceedings.” In case the decree of the surrogate was affirmed or was reversed on questions of law by the Circuit judge, an appeal could be taken to the Court of Chancery. (2 R. S. 609, §§ 9b, 100.) Under these statutes it is clear that a judgment, entered on a verdict establishing a will, after a trial of issues of fact before the Circuit, was not conclusive upon the heir, to whom the right remained to contest the validity of the devise in an action of ejectment, and by chapter 238, Laws of 1853, be was authorized to contest the validity of a devise by an action in partition.

Under the Constitution of 1846 the statute authorizing an appeal to a Circuit judge was changed, and an appeal was authorized to be taken to the Supreme Court, and, in case the decision of the surrogate was reversed upon a question of fact, the questions were directed to be tried before a jury. (§ 17, chap. 280, Laws of 1847.) The statutes remained in this condition until the adoption of the Code of Civil Procedure, by which the Surrogate’s Court is made a court of record, and is vested with the power to probate wills relating to realty and personalty. By section 2626 of the Code of Civil Procedure, the decree admitting a will to probate is conclusive as to the personalty, unless it is reversed on appeal or revoked by the surrogate, but the decree is not conclusive upon the heir, but is presumptive evidence only of the validity of the devise. (Code of Civ. Proc. § 2627.) When an appeal is taken to the Supreme Court it may affirm or reverse the decree, and, if modified or reversed upon a question of fact, a trial before a jury of the issues of fa.ct must be awarded. (§§ 2587, 2588.) The provision of the Bevised Statutes, that the decision to be entered upon the issue so awarded shall be conclusive as to the personalty only, is not continued by this Code, nor do we find any provision stating the effect of a judgment so rendered.

By section 1537 of the Code of Civil Procedure the provisions of chapter 238, Laws of 1853, were continued in force, and an heir of a devisor is authorized to maintain an action for the partition of land apparently devised to another, upon the ground that the devise is void. In addition to these provisions, any person interested in a will which has been admitted to probate in this State may maintain an action to cause the validity thereof to be determined. (Code Civ. Proc. § 2653a, enacted in 1892; Long v. Rodgers, 79 Hun, 441.) It is apparent that under our boasted reform procedure a will relating to realty and personalty may be declared void because of the insanity of the testator, or for any other cause, in respect to one species of property and valid in respect to the other kind of property, upon the ground that the testator was sane, and so there may be two final adjudications, both supposed to be verities, one affirming a will to be valid and the other affirming it to be void. And in case a will relating to realty and personalty is admitted to probate in tlie Surrogate’s Court, and tbe decision is-reversed by the Supreme Court and the issues are tried before a jury, which are found in favor of the validity of the will, upon which an adjudication is entered by the Surrogate’s Court decreeing the probate to be valid, the heir may, notwithstanding, retry the question as to the realty, and possibly, as in the case at bar, obtain a verdict and a judgment that the will is invalid. But the remedy for this incongruous and absurd procedure by which judgments diametrically opposed to each other may be recovered in respect to the same will, does not lie with the courts, but with the Legislature. We are compelled to hold that the decree entered upon the verdict of the jury in the Court of Common Pleas is not a bar to this action.

This action was not brought under section 2653a, Code of Civil Procedure, enacted in 1892, but was brought four years prior to its enactment, under section 1537 of the Code, and the provision of section 2653a, that “ the party sustaining the will shall be entitled to open and close the evidence and argument,” is not applicable to this ease, and the court did not err in denying the appellants’ motion to be given the right to open and close the. case.

It is urged that.the court erred in refusing to direct the jury to find the second, third, fourth and fifth issues of fact in favor of the contesting defendants. Upon reading the evidence we are of the opinion that it required the court to submit every one of these issues to the jury, and that no error 'was committed in refusing to direct a verdict, or in denying a motion for a new trial on the ground that it was contrary to the evidence. The learned trial judge instructed the jury fully and carefully in respect to the law relating to the issues submitted, and it was not error after the delivery of his charge to refuse to reinstruct the jury on these issues in the language of counsel as expressed in nearly fifty requests. The ninth and tenth requests are typical of all. By these requests the court was asked to instruct the jury in respect to the rules of law relating to undue influence, which requests were declined. The court had already carefully instructed the jury upon this issue, and it was not error to refuse to reinstruct the jury on the same subject in the language of counsel. Under sections 970 and 1544 of the Code of Civil Procedure the verdict of the jury was not merely for the information of the court, but was conclusive until set aside or a new trial granted, and the Special Term, upon its continuation of .the trial, bad no power to set aside the verdict and find the facts contrary thereto. (Jones v. Jones, 120 N. Y. 589.) Our attention is called in the appellants’ twelfth point to thirteen exceptions to the admission and exclusion of evidence. To discuss each one of them and show why they were not well taken would unnecessarily prolong this opinion, and it is, we think, sufficient to say that none of them calls for the reversal of this judgment entered upon the conclusion of a prolonged and carefully'conducted trial.

The judgments and order should be affirmed, with costs.

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

Judgments and order affirmed, with costs.


text:
    Simon Sterne, Respondent, v. Elisha H. Talbott and Maurice Maas, Appellants.

      Undertaking on appeal— a surety cannot defend an (action brought thereon on the ground that the debt can be collected from the principal — nor because of collaterals held by the creditor — merger— Oode of Civil Procedure, § 1309, does not apply to undertakings given upon appeal to the Court of Appeals.

    A surety who has unconditionally promised to pay the debt of another cannot defend on the ground that the debt can be collected of the principal debtor, or on the ground that the creditor has in his hands property of the principal debtor out of which the debt can be collected.
    In an action brought against the sureties on an undertaking on appeal to the Court of Appeals, given to secure a stay of execution upon a judgment, the answer denied knowledge or information sufficient to form a belief as to the truth of the allegations that the judgment entered upon the decision of the Court of Appeals had been recovered and entered, that due notice of entry thereof had been served or that no part of said judgment had been paid.
    As a further defense it was alleged that the judgment in question was recovered on a loan of money made by the plaintiff to the judgment debtor, who pledged as security therefor certain collaterals, which the plaintiff retained and the avails of which he had failed to apply to the payment of the judgment. The defendants also set up the existence of the pledge as a counterclaim, but did not claim an affirmative judgment based thereon. No reply was served. Before any evidence was given the defendants moved, on notice given pursuant to section 515 of the Code of Civil Procedure, for judgment on the alleged counterclaim, which was denied. The plaintiff introduced in evidence the judgment records and the original undertaking and offered evidence to prove that the judgment entered on the remittitur had been served personally upon the judgment debtor. No evidence was offered by the defendants, and the court directed a verdict in favor of the plaintiff for the full amount.

      Mdcl, that upon the entry of the judgment against the judgment debtor the debt on -which it was recovered was merged in the judgment for the payment, of which the sureties upon the undertaking on appeal became liable in case it was affirmed, and the necessary steps were taken to charge them;
    That the fact that the plaintiff might have enforced the judgment by the sale of the property of the judgment debtor on which the judgment had become a lien was no defense to an action on the undertaking.
    That the securities in the hands of the plaintiff, belonging to the judgment debtor, were not available to the sureties on the undertaking on appeal, as a counterclaim;
    That section 1309 of the Code of Civil Procedure, requiring notice of the entry of judgment to be served on the appellant’s attorney before an action on antmder-taking can be maintained, has no application to undertakings given on appeal to the Court of Appeals;
    That, in the absence of any allegation of payment of the judgment in the answer, and in the absence of any evidence of payment given or offered by the defendants, a pi'ima facie case was made out.
    Appeal by the defendants, Elisha II. Talbott 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 25th day of January, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit, and also from an order bearing date the 25th day of January, 1895, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes of the court.

      A. A. Greenhoot, Caleb M. Hillman and Leopold Wallaeh, for the appellants.

      E. Ellery Anderson, for the respondent.
   Follett, J.:

The plaintiff alleged in the complaint that November 2, 1892, he-recovered a judgment against Charles F. Beach, Jr., in the Supreme Court for $2,587.96, from which the defendant appealed to the General Term, where the judgment was affirmed, and February 27,. 1893, a judgment of affirmance was duly entered in favor of the plaintiff and against Charles F. Beach, Jr., for eighty-two dollars. ■and forty-five cents costs. That in March, 1893, Charles F. Beach, ■Jr., appealed to the Court of Appeals from the last-mentioned judgment, and on said appeal the defendants herein duly executed and filed a written undertaking, pursuant to sections 1326 and 1327 of the Code of Civil Procedure, by which they did jointly and severally, pursuant to the statute in such case made and provided, undertake that the appellant will pay all costs and damages which may be awarded against the apjiellant on said appeal, not exceeding five hundred dollars, and do also undertake that if the judgment so ■appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the sum directed to be paid by the judgment, or the part thereof as to which judgment shall be affirmed.”

It is also alleged that in June, 1894, the judgment appealed from was affirmed by the Court of Appeals, and June 28, 1894, a judgment .of affirmance was entered on the decision in favor of the plaintiff and against Charles F. Beach, Jr., for $129.95 costs, and that more than ten days prior to the commencement of this action notice of the entry thereof was duly served, and that no part of any of said judgments has been paid. The defendants answered separately, but their answers are identical. They denied knowledge or information sufficient to form a belief as to the truth of the allegations (1) that a judgment entered upon a decision of the Court of Appeals for $129.95 had been recovered and entered; (2) that due notice of the entry thereof had been served; (3) that no part of said judgments had been paid. None of the other allegations in the complaint were put in issue. As a further defense it was alleged that the judgment for $2,587.96 was recovered on a loan of money made by the plaintiff to Charles F. Beach, Jr., who pledged as security therefor a bond for $1,000, and fifteen shares of stock of $100 each, all of the value of $2,500, which the plaintiff retained and had failed to apply the avails thereof to the payment of the judgments. The defendants also set up the existence of the pledge .as a counterclaim, but‘did not demand an affirmative judgment. A reply was not served. Upon these issues the case was tried. Before .any evidence was given the defendants moved, on a notice given, pursuant to section 515 of the Code of Civil Procedure, for a judgment on the alleged counterclaim, which was denied, and an excep-1 tion taken. The plaintiff then introduced the judgment records and the original undertaking, and called a witness who testified, among other things, “I served the judgment entered on the remittitur on Charles E. Beach, Jr.; I served it personally; I know Mr. Beach. It was served on the 28th day of June, 1894, together with a notice of entry indorsed on the paper I served. I have made a computation of the amount due on the various judgments to to-day. * * * The principal and interest amount in the aggregate to $3,160.63.” The witness was not cross-examined and the defendants offered no evidence. Thereupon the defendants moved to dismiss the complaint on the ground that the plaintiff had failed to make out a cause of action, and specified (1) that the service of the notice of judgment upon the party, but not upon his attorney, was insufficient; (2) that the plaintiff had not shown that the judgments had not been paid. The motion was denied, and an exception taken. The court thereupon directed a verdict in favor of the plaintiff for $3,160.63.

Upon the entry of the judgment of November 2, 1892, the debt on which it was recovered was merged in the judgment for the payment of which these defendants became liable in ease it was affirmed, and the necessary steps taken to charge them. The fact that the plaintiff might have enforced the judgment by the sale of property of the judgment debtor, on which the judgment had become a lien, would be no defense to an action on the undertaking. (Wood v. Derrickson, 1 Hilt. 410; Heebner v. Townsend, 8 Abb. Pr. 234; Johnson v. Ackerson, 40 How. Pr. 222; affd., 3 Daly, 430; Sperling v. Levy, 1 id. 95; Boomer v. Laine, 10 Wend. 525.)

It is a general rule that a surety, who has unconditionally promised to pay the debt of another, cannot defend on the ground that the debt can be collected of the principal debtor, or on the ground that the creditor has in his hands property of the principal debtor out of which the debt can be collected. (Corn Exchange Ins. Co. v. Babcock, 57 Barb. 231; First National Bank v. Wood, 71 N. Y. 405; Third National Bank v. Shields, 55 Hun, 274.) This case is not within any of the exceptions to the rule, no special equities being alleged in the answer, not even that Charles F. Beach, Jr., was insolvent. Securities in the hands of the plaintiff, if there were any, of which no evidence was given or offered, were not available to these defendants as a counterclaim (Wright v. Austin, 56 Barb. 13-16), nor even as a set-off. (La Farge v. Halsey, 1 Bosw. 171; St. Louis Perpetual Ins. Co. v. Homer, 9 Metc. 39; Waterman on Set-off [2d ed.], 56, et seq.)

Whether a counterclaim can be pleaded in an action on a statutory undertaking is a question on which the cases are not agreed. (Atwater v. Spader, 12 N. Y. St. Repr. 506; Cornell v. Donovan, 14 Daly, 295; Furber v. McCarthy, 54 Hun, 435; Wickham v. Weil, 43 N. Y. St. Repr. 155; Delaney v. Miller, 78 Hun, 18; S. C., on second appeal, 84 id. 244.)

The court did not err in refusing to order a judgment for the defendants on the alleged counterclaim which had not been replied to by the plaintiff.

Section 1309 of the Code of Civil Procedure, requiring notice of the entry of judgment to be served on the appellant’s attorney before an action on an undertaking can be maintained, has no application to undertakings given on appeals to the Court of Appeals. This section relates only to appeals taken as prescribed in the third, fourth and fifth titles of chapter 12, which do not embrace appeals to the Court of Appeals, which are provided for in the second title of chapter 12. (Weil v. Kempf, 12 Civ. Proc. Rep. 379 ; Johnstone v. Conner, 13 id. 19.) Why a notice is not required before an action can be maintained on such an undertaking is not apparent.

Some evidence was given by the plaintiff of the non-payment of the judgments. The uncanceled judgments were received in evidence and a witness testified that $3,160.63 was due on them. The witness was not cross-examined, and we think, in the absence of any allegation of payment in the answers, and in the absence of any evidence of payment given or offered by the defendants, that a prima facie ease was made out. It is quite apparent that the defendants have no defense to this action on the merits.

The judgment and order should be affirmed, with costs.

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

Judgment and order affirmed, with costs.


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    The People of the State of New York ex rel. Michael Linehan, Relator, v. James J. Martin and Others, as Police Commissioners of the City of New York, Respondents.

      Diseha/i'ge of a patrolman — refusal by the police commissioners to adjourn a hearing — when not an abuse of discretion.

    Tha relator, a patrolman upon tlie New York city police force, was dismissed from the service for intoxication. A written notice of the charge made against him, and that it would he investigated, was personally served on him five days prior to the time set for the investigation. He appeared before the hoard at the time specified with counsel and asked for an adjournment to procure witnesses, hut did not mention the name of any person whom he desired to call as a witness.
    The charge against him was proved by two witnesses, and the relator was not sworn in his own behalf, nor did he make any defense. Five days after the hearing he made and filed an affidavit with the commissioners, in which he stated the names of three persons by whom he could disprove the charge made against him.

      Held, that it was not an abuse of discretion upon the part of the board of police commissioners to refuse to grant the adjournment asked for.
    CeRtioeaRI issued out of tbe Supreme Court and attested on tbe 17th day of January, 1894, directed to James J. Martin, Charles F. MacLean, John McOlave and John C. Sheehan, commissioners composing the board of police commissioners of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their action, decision and proceedings in the removal of Michael Linehan, a member of the police force of the city of New York.

      Louis J. Grant, for the relator.

      Terence Farley, for the respondents.
   Follett, J.:

The relator,, a patrolman, was dismissed from the police service for intoxication. A written notice of the charge .made against liim, and that it would be investigated November 15, 1893, was personally served on the relator November 10,1893. He appeared before the board with counsel and asked for an adjournment to procure witnesses, but did not state the name of any person whom he desired to call. The charge was proved by two witnesses, the captain of the precinct and a police surgeon. The relator was not sworn in his own behalf and made no defense. Five days after the hearing, he made and filed an affidavit with the commissioners, in which he stated the names of three persons by whom he swore that he could disprove the charge made against him. Why the names of the witnesses were not given on the hearing, or not earlier furnished, is not disclosed. It is not asserted that erroneous rulings were made on the hearing, and the only ground upon which we are asked to Reverse the proceedings is because an adjournment was refused. We think the board did not abuse its discretion. ITe had five days’ notice of the hearing, and, so far as the case shows, made no effort to have his witnesses subpoenaed. When confronted with the charge, he declined to be sworn and gave no evidence that he had any defense on the merits.

The writ should be dismissed, with costs.

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

Writ dismissed, with costs.


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    Emmanuel Lyons, as Administrator, etc., of Sarah Lyons, Deceased, Respondent, v. Second Avenue Railroad Company, Appellant.
    Negligence—cause of death, when a question for the jury — damaqes, when not excessive.

    In an action brought to recover damages resulting from the death of the plaintiffs intestate, caused by the defendant’s alleged negligence, it appeared that the plaintiffs intestate was injured, by a team, which escaped from the defendant’s driver, to such an extent that she never fully recovered from its effect. The immediate cause of her death was Bright’s disease, but the physician who attended her during her last illness, and who had been her family physician for a year or more preceding the accident, testified that the disease of which she died was traceable to and was caused by the injury.
    Each side swore the same number of medical witnesses, but those who were sworn in behalf of the plaintiff had the best means of knowing the facts and forming their opinions, which were supported by the evidence of the plaintiff, who was the husband of the deceased, in respect to her previous health.

      Meld, that, under the evidence, the question whether the injury was the cause of the death was a question for'the jury.
    It appeared further that the decedent was sixty-three years of age at the time of the accident, in good health, and performed all the labors in plaintiff’s household; that she left her surviving a husband and one unmarried daughter of full age, her only next of kin, the three, before her death, living together as one family. The daughter, before her mother’s illness, had employment elsewhere.

      Held, that the estimate of damages sustained in such cases is necessarily based upon probabilities, and can never be ascertained with accuracy or to the satisfaction of both parties, and that a judgment in favor of the plaintiff for §5,000 should not be set aside upon the ground that the damages awarded were excessive.
    Appeal by tbe defendant, tlie Second Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of January, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 7th day of February, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Payson Merrill and George C. Holt, for the appellant.

      Sumner B. Stiles and Francis L. Wellman, for the respondent.
   Follett, J. :

This action was begun July 2S, 1894, to recover damages resulting from the decedent’s death, caused, it is alleged, by the negligence of the defendant and of its employee. The defendant on this appeal does not challenge the finding of the jury that the decedent was injured September 8, 1892, by the negligence of the defendant and of its servant, and that she did not by any act or omission contribute to the accident. There was no conflict in the evidence in respect to the accident, its cause or the decedent’s conduct on the occasion. None of the exceptions taken to the charge or to the rulings upon the admission or exclusion of evidence are questioned, and we are asked to reverse the judgment solely on the grounds: (1) That the accident was not the cause of death; (2) that the damages awarded,, $5,000, were excessive.

September 8, 1892, the decedent, while walking on the sidewalk of East Twenty-eighth street, was knocked down and injured by a team which escaped from the defendant’s driver. Her right leg was considerably injured — to such an extent that she never fully recovered from its effects — and she sustained so severe a shock that she remained in a semi-unconscious condition for two or three-days. At this time the decedent was sixty-three years of age, and had, before the accident, been possessed of good health, but from the time of the accident to May 2, 1893, when she died, she was in feeble health. The immediate cause of her death was Bright’s disease, induced, it is asserted, by the shock. The physician who attended the decedent during her last illness, and had been the family physician for a year or more preceding the accident, testified that the disease of which she died was traceable to and caused by the injury. Another physician, an instructor for seven years at the College of Physicians and Surgeons at Columbia College, testified that in his opinion the accident caused the disease of which she died. A physician, who had been employed by the defendant in its accident cases for two years, testified that he saw the decedent four days after her injury; that he found three contused and lacerated wounds on her right leg below the knee. lie testified that he saw no evidence that the patient was suffering-from shock, but noticed that her legs were swollen, but that the swelling could not, in his opinion, have been produced by the injury. lie said that, in his opinion, the decedent then had chronic Bright’s disease and died from its effects, and that the disease was not caused by the injury. A physician, who has been a professor of clinical medicine and therapeutics for several years, was called by the defendant and testified, as an expert, that in his opinion, founded upon the evidence, the injury was not the cause of the disease of which the woman died. This witness had never seen the patient. Each side swore the same number of medical witnesses, but those sworn in behalf of the plaintiff had the best means of knowing the facts and forming an opinion, and their opinions were supported by the evidence of the plaintiff in respect to the previous good health of his wife. We think, under the evidence, that the cpiestion whether the injury was the cause of death was a fair question for the jury, and that its verdict cannot be disturbed. Nor do we think the verdict should be set aside because the damages were excessive. The decedent was sixty-three years of age, in good health, and performed all of the labors in plaintiff’s household. She left her husband and one unmarried daughter, of full age, her only next of kin, the three before her death living together as one family. The daughter, before her mother’s illness, had employment elsewhere. The estimate of the damages sustained in such cases is necessarily based upon probar bilities, and can never be ascertained with accuracy or to the satisfaction of both parties. Under the decisions of this court we cannot reverse the judgment and set aside the verdict upon the ground that the damages awarded were excessive.

The judgment and order should be affirmed, with costs.

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

Judgment and order affirmed, with costs.


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    Stephen Leach, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant.

      Breach of cont/ract — a/mount of recovery where the damages a/re uncertain — how determined — evidence.
    When it is uncertain whether damages have been sustained by the violation of a contract none can be recovered, but when it appears that damages have been caused by the breach of a contract, the amount of which, however, is uncertain and incapable of ascertainment by computation or by direct evidence, the injured party is entitled to recover such damages as he can show to be the direct results of the breach of the contract.
    Where the damages can be ascertained by computation, or are in their nature capable of being definitely fixed, the parties are confined to direct evidence, and are not permitted to prove collateral facts from which inferences as to the amount of the damages sustained may be drawn.
    Where the damages cannot be fixed by computation or by direct evidence, the kind and character of evidence admissible for the purpose of proving the damages depends upon the circumstances of each case.
    Evidence which would be competent in one case would be utterly incompetent in another, and the inquiry always is whether, under the circumstances of the case in hand, evidence has been given which would authorize a jury to award more damages than are shown to flow directly from the breach of the contract.
    Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of February, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 20th day of February, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Henry W. Taft, for the appellant.

      Ira B. Wheeler, for the respondent.
   Follett, J.:

This action was begun March 29, 1893, to recover damages for an alleged breach of a contract to carry the equipment of a theatrical company. The plaintiff was the owner of a theatrical troupe called “ Dark Secret Company,” and was engaged in performing a play called “ The Dark Secret ” in various cities in the New England States and in this State. On Saturday evening, December 31, 1892, the plaintiff gave a performance at Norwich, Conn., and after its conclusion loaded his scenery and properties forming the stage outfit on one of defendant’s cars to be forwarded to the eity of New York. Had the car been sent forward in due course it would have reached the city of New York not later than half-past six o’clock on the morning of Monday, January 2,1893. The plaintiff had advertised to exhibit his play at Yonkers, N. Y., in the afternoon and in the evening of Monday, January 2, 1893, and sold tickets for both exhibitions. The defendant did' not deliver the car at the Grand Central Depot in the city of New York until thirty-two minutes past seven o’clock in the evening of Monday, January second, so that the plaintiff was unable to give either exhibition advertised at Yonkers, and was compelled to refund the money received for tickets sold. The plaintiff alleges that the defendant contracted to deliver the car at the Grand Central Depot by half-past six in the morning of January 2, 1893. The defendant admitted that it received the plaintiff’s goods on board its car at Norwich, Conn., before midnight of December 31, 1892, but denied that it agreed to deliver the car at New York by six-thirty a. m. January 2, 1893, and set up that the reason of its failure to move the car from New London, where it arrived Sunday evening at seven-thirty-five, was because the plaintiff had failed to prepay the charges for the use of the car. On the trial the defendant urged that the contract to transport the car was a mere incident to a contract to carry the persons composing the troupe from New London to New York, and, in violation of an implied agreement that the troupe should go by the defendant’s road, they went by boat from New London to New York. This defense was not set up in the answer. There was a sharp conflict in the testimony over the terms of the contract. The-witnesses sworn in behalf of the defendant testified that the agreement was that the charges for the car should be prepaid before it should leave Norwich, Conn. The witnesses sworn in behalf of the-plaintiff testified that there was no such agreement. The witnesses-agree that the car left Norwich, Conn., at seven o’clock p. m., Sunday, January 1, 1893, and arrived at New London thirty-five minutes later. The witnesses also agree that in the forenoon of January second, the plaintiff called at the Grand Central Station at the city of New York to inquire after his car, and, finding it had not arrived,, called on one of, defendant’s officers, who inquired by telegraph or telephone of the defendant’s agents at New Haven, and learned that the car was held for the prepayment of forty-seven dollars and fifty cents charges. The plaintiff thereupon paid the charges to the defendant. There was a sharp controversy as to the time when the charges were paid, the plaintiff testifying that they were paid at about twelve-fifteen p. m., and the witnesses for the defendant testifying that they were paid at about two-tliirty p. m. It is conceded that if the charges were paid at twelve-fifteen p. M. the defendant might have, with due diligence, delivered the car at New York at half-past four in the afternoon of the same day, but if they were paid at half-past two the car could not have been delivered at New York before seven-thirty-two in the evening, at which time it did arrive. These questions of fact were sharply contested on. the trial, but were found for the plaintiff, and a verdict for $630’ damages rendered, which cannot, under the well-settled rules, be set-aside as contrary to the weight of evidence. The evidence being-sufficient to require the submission of the case to the jury, it was-not error for the court to refuse to nonsuit the plaintiff.

The exceptions taken by the defendant to the admission and exclusion of evidence relate (1) to evidence bearing upon the plaintiff’s right to recover; (2) to the amount of damages recoverable in case he established a cause of action. The exceptions of the first sort do not require much consideration. The defendant, by a series of questions to its general passenger agent, sought to show that it was customary for the members of theatrical troupes to travel on the line-which transported the scenery and paraphernalia of the proprietor of the exhibition. This evidence was offered for the purpose of raising the issue tbat the plaintiff violated an implied condition of the contract by having the members of his troupe carried from New London to New York by boat instead of by the defendant’s railroad. No such defense was set up in the answer. Besides, the contract, as testified to by the witnesses on both sides, does not refer to the carriage of persons or of personal baggage such as travelers are entitled to have carried in consideration of their payment of fare. The contract was to furnish a car at Norwich, Conn., for the purpose of transporting the plaintiff’s property to New York. After the ear was loaded tli'e plaintiff was given the keys, and there is no evidence in the case, and none was offered, from which it could have been inferred that the contract was for the carriage of the personal baggage of the members of the troupe, for which an extra charge was made by reason of its amount. The articles in the car -were not checked, neither were they carried as an incident of .the carriage of the passengers, but they were transported under a special contract for which a fixed compensation was charged. No error was committed in not permitting the defendant to prove the custom of its road, or of other transportation companies, nor was it competent for the defendant to prove that it would not have made the contract had it known that the members of the troupe were to go from New London to New York by boat.

The refusal to permit Southard to answer the question, “ whether Mr. Mackenzie immediately repeated to you what the person at the other end of the telephone stated to him ? ” was not error. He had testified that he overheard the telephonic communication between the plaintiff and Mackenzie (the superintendent of the New London and Northern railroad), and testified to what he heard. Mackenzie testified to what was said between himself and the plaintiff, and that Southard overheard the conversation and commented on it at the time of its occurrence.

When it is uncertain whether damages have been caused by the violation of a contract, none can be recovered, a jury not being permitted to speculate whether damages may not have been occasioned; but when it appears that damages have been caused by the breach of a contract, the amount of which is uncertain and incapable of .ascertainment by computation or by direct evidence, the injured party is entitled to recover such as he can show to be the direct results of tlie breach of the contract. In many cases the damages can be 'ascertained by computation, or are in their nature capable of being definitely fixed, aud in such cases the parties are confined to direct evidence and are not permitted to prove collateral facts from, which inferences as to the amount of damages sustained may be drawn. In cases where the damages cannot be fixed by computation or by direct evidence, the kind and character of evidence admissible for the purpose of proving the damages depend upon the circumstances of each case. Evidence which would be quite competent in one case would be utterly incompetent in another, and the inquiry always is whether, under the circumstances of the case in hand, evidence has been given which would authorize a jury to award more damages than are shown to flow directly from the breach of the contract. In this case the amount of the plaintiff’s damages was incapable of being accurately fixed, but that was no reason why he should be deprived of all damages. It was shown that before it was known that the car would not arrive he sold tickets for the.performances advertised for the afternoon and evening of January second. This money (between $350 and $400) the plaintiff was compelled to refund. It is well known that only a portion of tickets for entertainments are purchased long in advance of exhibitions, and we do not think it was error to permit the plaintiff to prove, by a person who had for several years been engaged in the sale of tickets for this particular place of amusement at Yonkers, and who sold these tickets, to testify that about one-fourth of the whole amount of tickets sold were usually sold in advance of entertainments. The damages awarded in this case were not large, and, under the evidence, probably not more than the plaintiff would have received for either entertainment.

The fact that the plaintiff was permitted to testify that the property contained in the car was worth about $8,000 was not error. It was stated that it was offered for the purpose of showing that the defendant had ample security for carrying the goods, and that there was no reason for stopping them in transit to secure a prepayment of charges.

The judgment and order should be affirmed, with costs.

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

Judgment and order affirmed, with costs.