Volume 18 — New York State Reporter

This action, which arose out of a claim against the estate of the defendant’s testator, was referred to Hon. George G. Scott and tried by him, but before the cause was summed up, Judge Scott died without having disposed of the same. A motion was made to refer the matter to another referee,, which motion was granted and an order thereon entered referring it to Walter L. Vandenburgh, from which order defendants appeal.

<p>1. Insurance (pire)— Apportionment op loss.</p> <p>The plaintiff had an insurance policy issued by the defendants, which insured him against loss or damage by fire in an amount not exceeding $2,000 on merchandise contained in the basement of a certain building. He also had additional insurance in other companies at the same time to the amount of $4,000 limited to the same property, and to the further amount of $11.500 also covering the same property, jointly with other property on the third floor of the same building, besides which there was a further insurance to the extent of $5,000 limited to the third floor property. A fire which broke out on the third floor occasioned a loss of $12,015.53 on that floor, and a damage by water to property on the first floor covered by defendant’s policy to the'amount of $1,131.19. The defendant’s policy contained a clause as follows: “This company shall not be liable for a greater proportion of any loss sustained by the assured upon any property described in the policy than the sum hereby insured thereon bears to the whole sum insured thereon whether such insurance be by policy specific or otherwise, or whether prior or subsequent to this insurance, or whether such other insurance be valid or not, and without reference to the solvency of other insurance companies. In case there shall be insurance under specific policies, or under general policies embracing any subject or subjects insured herein, this policy shall be liable for the loss on any or all such subjects only in proportion as the amount or amounts so insured herein shall bear to the sum of all the insurances, general or specific, which may include the said subject or subjects.” Meld, that the joint insurance should be apportioned as follows, so that a corresponding percentage of it will be applicable to the first floor damage, namely, by 8 6-10 per cent of $11,500 is equal to $989; add to the defendant’s policy, which was exclusively upon the damaged property, $2,000; also add the other specific insurance upon the same, $4,000; making total insurance first floor $6,989; which are to contribute to the damage involved, which would make defendant liable for 2,000-6,989 per cent of $1,131.19, $323 70-100.</p> <p>2. Same—Rule as to apportionment op loss.</p> <p>The rule is, in substance, that for the purpose of apportioning the loss in case of over insurance, where several parcels are insured together by one policy for an entire sum, and one of the parcels is insured separately by another policy, the sum insured by the last mentioned policy is to be distributed among the several parcels in the proportion which the sum insured by that policy bears to the total value of all the parcels. So here the $11,500 joint insurance was properly distributed among the several parcels damaged in the proportion that sum bore to the total value of the whole damage sustained, to wit, 8 6-10 per cent to the first floor and 91 4-10 per cent to the third floor.</p>

<p>1. Witness fees—Taxation of costs.</p> <p>The court will, in but few cases, permit more than five or six impeaching witnesses to be called on either side. Even where witnesses are offered to prove a principal fact, the court may, in the exercise of a wise discretion, limit the number to be examined.</p> <p>2. Same—Impeaching- witnesses.</p> <p>Where there were thirty-three witnesses subpoenaed to impeach plaintiff’s character, none of them being examined, as the complaint was dismissed at the opening of the trial, Held, that the court would not allow fees of more than five to he taxed.</p>

<p>1. Taxes and assessments—Constitutional law—Power oe legislature to levy assessments—May determine what property shall be assessed.</p> <p>Objection was made to the constitutionality of Laws 1883, chap. 114, because it did not provide for any apportionment of the taxes, assessments or water rates to be levied thereunder and required their levy upon a portion of the city of Brooklyn only. 11 Id, that it was within the power of the legislature to determine not only the amount of a tax to be raised but the property to be assessed and upon which it was to be apportioned.</p> <p>3. Same—Legislature may prescribe form of notice of intention to LEVY ASSESSMENT.</p> <p>The act was not unconstitutional because it provided for a notice of intention to levy by the assessors which did not describe the owner of the property nor designate the land to be affected. The legislature might fix the form of notice to be given.</p> <p>3. Same—Legislature mat prescribe form of notice of sale.</p> <p>The act was not unconstitutional because it did not require the registrar of arrears to advertise the property by block and lot numbers on the ward map, or describe it in the advertisement of sale,</p>

<p>Subbogate’s cotjbt—Refebence to pass on intebmediate account of adMINISTBATBIX AND OBJECTIONS—GbOUNDS FOB SUSPENSION OF APPLICATION FOB.</p> <p>, Certain objections to an intermediate account of an administratrix having been filed, an application was made for the appointment of a referee to pass upon the account and objections. This application was opposed by the administratrix because nearly a year had elapsed since the issuance of letters to her, and at the expiration of that period she could be compelled to render a final account, and the granting of the application would involve needless expense to the estate. Held, that this furnished sufficient grounds for the suspension of the motion until the expiration of the year.</p>

<p>1. Ancillary letters testamentary—Testatrix at the time of her-DEATH OR THE EXECUTION OF THE WILL MUST HAVE RESIDED WITHOUT THE STATE—CODE ClV. PRO., § 2695.</p> <p>In order to grant ancillary letters testamentary, the court must be satisfied that the testatrix, at the time of her death or of the execution of the will, resided without the state.</p> <p>2. Letters of administration — Application to set aside — What NECESSARY.</p> <p>An application was made to set aside letters of administration upon the-estate of a decedent, by one claiming to be executor under a will of the said decedent, admitted to probate in the state of New Jersey. Held, that it the alleged testatrix resided in this state at the time of her death or the execution of the will, and the next of kin were not cited to attend the proceeding admitting the will to probate in New Jersey, the letters of administration should not be disturbed until a proceeding was instituted in the courts of this state to admit the will to probate here.</p>

<p>1. Different assignments of same chose in action by same person— That prior in time protected—Notice unnecessary.</p> <p>As between different assignees of a chose in action by express assignment from the same person, the one prior in point of time will be protected though he have given no notice to either the subsequent assignee or to the debtor.</p> <p>% Same—Date of delivery—Presumption.</p> <p>The law presumes, there being no evidence to the contrary, that an assignment was delivered on the day of its date.</p>

<p>1. Evidence—Parol evidence not admissible to vary written contract.</p> <p>Parol evidence is not competent to add to or affect the meaning of a written agreement.</p> <p>2. Contract—Construction of—Meaning of "‘ available phosphoric acid.”</p> <p>By the terms of the contract the plaintiff agreed to manufacture certain material supplied to him into “ available phosphoric acid.” Hdd. that there was nothing in that agreement providing that the phosphoric acid, when thus manufactured, should possess any quality other than that meant and described by the word available. That the sale of the phosphoric acid was sufficient proof that it was available.</p>

<p>1. Promissory note—Evidence—Real consideration may be shown by PAROL.</p> <p>The contract of a promissory note cannot he varied hy paroi, hut the real consideration of it can he proved hy paroi.</p> <p>3. Same—Admissibility of evidence.</p> <p>Evidence that at the time of giving a note the payee said he would not enforce it until, etc., can he used as a piece of testimony to show, with other facts, for what the note was given.</p>

<p>Appeal from an order made at the Niagara circuit, on the defendant’s motion, postponing the trial of the cause for the term. At the time the notice of appeal was served by the plaintiff, he was in default in the non-payment of costs awarded by two separate orders previously granted at special term in the sum of ten dollars each. The order appealed from contains a direction that the plaintiff pay the costs awarded to defendants in each of the said orders within thirty days from the time of the service of the order appealed from. The previous orders allowing costs, were granted and served more than thirty days prior to the service of the notice of trial by the plaintiff. In the notice of appeal, it is stated that the appellant intends to bring up-for review the two orders mentioned.</p>

<p>1. Will—Undue influence—Feelings of gratitude not an undue influence.</p> <p>Where a perfectly competent testator is induced to make a will by feel1 ings of gratitude, the will is not obtained by what in law is styled undue influence, where there is no fraud, imposition, constraint or coercion.</p> <p>2. Same—Testator’s meretricious relations with legatee does not INVALIDATE .WILL.</p> <p>The law does not condemn a will made in favor of one with whom the testator’s relations wore meretricious. Where such relations exist, all the circumstances attending the execution of a will which may be shown to have been induced thereby, will be carefully scrutinized, but the right of a competent testator to make any disposition of his property which pleases-him, although it may be unjust and unnatural, will not be curtailed.</p> <p>3. Same—Allowance of costs to unsuccessful contestant of probate DISCRETIONARY—CODE ClV. PRO , § 2558.</p> <p>The widow of the testator contested the probate of the will in question and was unsuccessful. The surrogate did not allow her costs and did not impose costs upon her. Held, that whether or not he should allow her costs rested in his discretion under Code Civil Procedure, section 2558; that while under subdivision 3 of that section, if he found her contest was-in good faith, he could have awarded her costs to be paid out of the estate, he was not bound to.</p>

<p>1. Will—Execution op—Subscribing witnesses must see testator’s SIGNATURE.</p> <p>Subscribing witnesses to a will are required by law, for the purpose of attesting and identifying the signature of the testator, and that they cannot do, unless at the time of the attestation, they see it. To this end, the witnesses should either see the testator subscribe his name, or he, should, the signature being visible to him and to them, acknowledge it to be his signature.</p> <p>2. Same—When subscribing witnesses do not see testator’s signature THE WILL NOT ENTITLED TO PROBATE.</p> <p>The subscribing witnesses came to the dwelling house of the testator by previous appointment, and while seated at his writing desk, he said to them, “ Gentlemen, what I sent for you for was, to sign my last will and testament." Thereupon he took from his writing desk the instrument offered for probate, and laying it before the witnesses said, “It is now all ready awaiting your signature.” He then presented the instrument to the witness McO. for his signature, and he signed it saying, as he did so, “I am glad Father McKay you are making your will at this time. I don’t suppose it will shorten your life any.” He replied, yes, he wanted it done and off his mind, and then the witness M., who had joined in this conversation, signed the instrument as a witness. At the time of exhibiting the instrument to the subscribing witnesses, he told them it was his will, but he handed it to them so folded that they could see no part of the writing except the attestation clause, and they did not see either his signature or seal. Held, that it was not properly executed, and that probate thereof was rightfully refused.</p>

<p>1. Elections—Polling of votes in the city and county of new york MUST STOP AT FOUR. O’CLOCK IN THE AFTERNOON OF ELECTION DAY.</p> <p>This was an application for a writ of mandamus, directing the inspectors of the thirty-second election district, in the twenty second assembly district, to allow all voters, in line at four o’clock in the afternoon, on election day, who were previously unable to vote because of the number of voters in the district, to cast their vote after that hour. The election district in question is located within the city and county of New York. It is provided by the Consolidation Act, Laws 1883, chap. 410, § 1843, that at all elections thereafter held in the city and county of New York, the polls shall be opened at six o’clock in the morning and close at four o’clock in the afternoon. Held, that the closing of the polls meant not the closing of the polling place, but of the polling of votes, and that at four o’clock in the afternoon, the polling of votes must stop.</p> <p>3. Same—The provision requiring closing of polls at four o’clock IN THE AFTERNOON OF ELECTION DAY IS CONSTITUTIONAL.</p> <p>Held, that the provision in question was constitutional, and did not conflict with the constitutional guarantee to every citizen possessed of the requisite qualifications of the right to vote at a general election.</p>

<p>2. Negligence—What will amount to contributory negligence.</p> <p>The plaintiff was permitted to use the tracks of a railroad for the purpose of a foot passage, he knowing the ordinary use of the tracks by the company, and the risks and dangers incident to the use which he was making of the tracks. In an action for damages for injuries received by him, the defendant asked the trial court to instruct the jury “that the plaintiff, in walking the track, assumed the risk of being injured by the ordinary operation of trains on the defendant’s road,” which was refused. Held, to be error.</p> <p>9. Same—Quere as to liability of defendants, where the road was USED DIFFERENTLY FROM WHAT MIGHT BE EXPECTED, OR PROPER PRECAUTIONS OMITTED.</p> <p>This instruction, however, left the question open whether the accident to the plaintiff resulted from any operation of the trains which he was not bound to anticipate or from the omission of any precaution which he had the right to expect.</p>

<p>The court refers actions, brought by attorneys to recover the value of legal services, with much reluctance, and! only when it appears that, in consequence of the nature of the demand, and of the proof required to-sustain it, it would'be impracticable to try the case with a jury.</p>

<p>1. Contracts—Performance—Evidence Sustaining finding of.</p> <p>This action was brought to recover the balance of the contract price of several hundred gross of glass bottles sold and delivered to the defendant under an oral contract by which the goods were to be delivered on board the cars at the place of making and the price payable on delivery, and a balance of the contract x>rice of several thousand gross of bottles manufactured and shipped by the plaintiffs to the defendant, under a written contract by which the plaintiffs agreed to manufacture and deliver five thousand gross of bottles according to a sample and description, in quantities as called for by the defendant, within one year from August 25, 1883, for which the defendant agreed to pay at the times and in the manner therein set forth. The answer admitted both contracts with the qualification in respect to the i rst, that it included a stipulation for the repacking of the bottles in a particular manner, and denied that either contract had been performed by the plaintiff, and denied that the defendant was indebted to the plaintiff in any amount, containing also appropriate aver- . ments for the recoupment of damages for breakage resulting from the failure of the plaintiffs to repack and properly place on board the cars the bottles purchased under the first contract, and also for the breakage of the same and for imperfection in weight and color of others of the bottles manufactured and delivered under the second contract. The cause was tried before a referee. Held, that the bottles sold under the first contract having been seen and examined by the president of the defendant at the time the sale was made to him, and the manner in which they were packed in trays being at that time plainly visible, the evidence sustained the finding of the referee that the package of these bottles was in conformity with the contract, and that they were properly stowed in the cars at the place of shipment, so that the risk of breakage in transportation was the defendant’s.</p> <p>2. Contracts—Interpretation of—Evidence of custom of trade is COMPETENT TO DEFINE TECHNICAL TERMS.</p> <p>Held, that evidence of the custom of trade in respect to variations in the color and weight of the bottles was properly admitted, not to contradict or vary the contract but to define such words therein as might be regarded as technical.</p> <p>3. Same—Construction of—Contract for delivery of goods by installments.</p> <p>Held, that the latter contract was not entire but plainly for the delivery of goods by installments, the time and quantity of each delivery to be determined by the order to be given by the defendant, and that the addition of the words “ and within one year from this date ” did not give the plaintiff the right to deliver the goods faster than they were called for, but was 'rather a stipulation on the part of the defendant to call for all the goods within the year.</p> <p>4. Same—Circumstances excusing performance.</p> <p>Held, that the notification of the plaintiffs by the defendant that it would receive no goods delivered after August 30, 1884, except such as should be ordered after that time, was sufficient to absolve the plaintiffs from further attempt to perform or tender of performance.</p>

<p>Practice on appeal—What appellate court can consider</p> <p>The court on appeal can only examine the action of the court helow upon the matters actually presented upon the trial.</p>