Volume 31 — Abbott's New Cases

<p>1. Sale.] Bankers, who have accepted for a merchant a bill of exchange drawn upon them for the price of goods, and taken the bill of lading therefor in their own name, are the owners of the goods until the merchant remits funds to cover their acceptance ; and their right to the goods or their proceeds is not lost as against the merchant or his assignee for the benefit of creditors by their surrendering the bill of lading to the merchant under an agreement that until their advances have been paid he will hold the goods, or their proceeds if sold, “ under lien ” as agent of the bankers.</p> <p>2. Pledge!] It seems, that a pledgee • may make the pledgor his agent to hold or sell the goods for the pledgee's benefit.</p>

<p>1. Sales.] Coffee was purchased for export by a merchant upon the credit of a bank under an agreement that the bill of exchange drawn upon the bank therefor should be accompanied by the bill of lading for the coffee in the bank’s name, the merchant also agreeing to deposit with the bank a sufficient sum to meet the bill of exchange. Before it become due, the bank surrendered the bill of lading to the merchant, taking a receipt therefor, by which the merchant agreed to hold the coffee as property of the bank, with liberty to sell the same, and to account to the bank for the proceeds until the bill of exchange should be paid. The merchant sold the coffee, and deposited the proceeds to his own credit in another bank. Held, that the bank having advanced the whole purchase money, it was the owner of the coffee, and was entitled to the proceeds as against the merchant’s assignee for the benefit of creditors.</p> <p>2. Trusts (and Trustees); Remedies of Benejlciaiy.] Proceeds of principal’s property which an agent has deposited in a bank to his own credit may be recovered by the principal.</p> <p>3. Evidence j Usage.] Where it is expressly agreed upon, the transfer of a bill of lading that the property shall be held as the property of the transferee, and if sold, that its proceeds shall be accounted for to him until certain bills of exchange are paid, it is not to be presumed that the parties contracted with reference . to a custom by which the transferee should not look to the proceeds of the goods for payment.</p> <p>4. Costs; in Discretioti of Court.] Where an assignee for the benefit of creditors, defended in good faith an action to recover the proceeds of trust property which his assignor had deposited in a bank to his own credit,—held, upon plaintiff’s recovery, that the assignee should be allowed a fair compensation for his own services and that of his counsel.</p>

<p>I. Attorney; how far process protects.] A complaint in an action against an attorney alleged the seizure of plaintiff’s property under an execution issued by defendant upon a judgment in ejectment which had been entered upon the remittitur of the Court of Appeals, but which did not conform to the judgment directed ins not excepting a certain grant from the land recovered : the complaint also set forth the denial of plaintiff’s motion to set aside the execution, and the allowance of an amendment nunc pro tunc.—Held, in sustaining demurrer, that the execution was not void, but merely irregular, and until set aside was sufficient to protect acts done under it.</p> <p>2. The same.] In such a case, the denial of plaintiff’s motion to set aside the execution and the allowance of its amendment nunc firo tunc makes the question whether the process was void res adjudicata.</p>

Motion to discontinue an action without costs. Action by James H. Parkinson, an infant, by James E. Parkinson, his guardian, against John Scott for personal injuries. The further facts are fully stated in the opinion.

<p>Trials j mode of trial.] Where a complaint set forth the provision of a will directing defendant as executrix to contribute to the support of plaintiff a sufficient sum to keep him from want, in case he was unable to support himself, or was in need, and alleged plaintiff's helplessness and poverty, the refusal of defendant to contribute to his support, and her ability to do so; and demanded judgment that defendant be directed to pay plaintiff the sum of twenty dollars a week, or such reasonable sum as may be proper out of the property in her hands as executrix,— Held, that the action was to establish and declare a trust, and not an action for a sum of money only, triable by jury under Code Civ. Pro. § 968.*</p>

<p>.Parent and child; custody of child.] Although after the first spouse is discovered to be living, continued cohabitation under a second marriage contracted under 2 R. S. 139, § 6 ; 8th ed. Id. Vol. IV., p. 2596,—providing that a second marriage contracted in good faith, where the former husband or wife has absented himself or herself for five successive years without being known to the other party to be living, shall be void only from the time its nullity shall be decreed,—may furnish to the first spouse no ground for divorce, until the second marriage is annulled ; yet such cohabitation is improper upon moral grounds, and where it has been indulged in, neither party upon the annullment of the second marriage can be regarded as the “ innocent party,” entitled to the custody of the children under Code Civ. Pro. § 1745, but in such a case the court may award their custody to - either parent as the interest of the children requires.</p>

<p>Appeal from a judgment on demurrer.</p> <p>The complaint in effect alleged that seven children and' heirs of Hugh Murphy (plaintiff’s grandfather) inherited as tenants in common, their father’s lands; and that (they being all of full age) “ by a common agreement and understanding between them it was understood and agreed that the said lands and building constructed thereon, were to-be held by them as property in common, for the joint use o.f all, as from time to time they might be living ; and on the decease of any of them the interest of such deceased person was to vest in the survivor or survivors for the purpose aforesaid, until the title and interest in the same was and was to be concentrated on the last of such survivors ; and that the title and interest of and in said prop-, erty on the death of the last of such survivors, was to pass to and become vested in the said Hugh Merancy Murphy (plaintiff’s father) as the sole representative of the family name and estate of the Murphy family afore-, said; that such transmission of interest and estate was to be made through descent or will as might best serve to accomplish the purpose so agreed upon.”</p> <p>Further'facts appear in the opinion.</p>

<p>1. Reference.] A referee appointed by the surrogate’s court in an executor’s accounting is not confined to an action in order tO' recover his fees, if he is unable to collect them ; but upon his application the surrogate’s court may, in the exercise of its. authority over the executor as an officer of court holding a fund subject to its control, make an order directing the executor to pay the fees forthwith.</p> <p>Following Attorney General -v. Continental Life Ins. Co., 93 N. Y. 45 ; and distinguishing Geib v. Topping, 83 Id. 46,</p> <p>2. The same.] If after the reference a stipulation between the parties, made before the reference, that the referee should be allowed a fair compensation, but not fixing the amount, is repudiated, the referee can only be allowed the statutory compensation.</p>

<p>Phillip B. Vieller sued Edward L. Oppénheim and -others ; the nature of the action as stated in his affidavit to obtain discovery and inspection of accounts, was to. recover a percentage of gross profits of the defendant’s business to which he claimed to be entitled under a contract between them which required the plaintiff to give his undivided attention to the defendant’s business and particularly to procuring new customers, he to receive ■fifteen per cent, of the net profits of the defendant’s general business, to be calculated by deducting, from gross profits, the expenses, interest on cash capital, and on value of the seats in exchanges, and moneys due on bad and doubtful accounts (the percentage, however, to be paid on bad or doubtful accounts ultimately collected), and he not only to have an interest in the profits but also to be responsible for firm losses on speculative business equal to fifteen per cent., but to have no voice in the management of the business, and not to be a partner nor have a right to sign the firm name.</p> <p>A first motion for discovery and inspection was denied on the ground that although a general and sweeping order was asked for, it did not appear exactly what relief plaintiff sought or why the inspection was necessary to enable him to prepare his complaint, and that it did not appear whether he intended to frame his action to open settled accounts which had been set up in the opposing affidavits, or simply to sue for an accounting.</p> <p>On a second motion he alleged that it was his purpose to set aside an agreement which defendants relied on as a liquidation and to open the accounts if the same should be deemed to be settled and to effect a proper accounting and settlement.</p> <p>The court at Special Term granted the motion, the following opinion being rendered :</p>

Action by Charles S. Murphy against William C. Jack and Millard F. Payne to recover the price of goods sold.

<p>Appeal by defendant from a judgment entered on a verdict.</p> <p>Romane Depew sued Celina B., Anna M., and Caroline E. Ketchum, alleging that in January, 1891, the defendants leased the plaintiffs their “home farm,” consisting of about 234 acres of land, for a term of five years from April 1st., to be occupied by plaintiff and worked by him upon shares. The lease contained provisions on the usual subjects of the expense of furnishing seeds, division of produce, payment of taxes, the furnishing of stock and the number of animals to be kept, mending the fences, and the like ; and it further contained this provision:</p> <p>“ The parties of the first part reserve the right to sell this farm at any time during said term, and the party of the second part agrees to surrender possession of the same on the first day of April of any year during said term, in case said sale is made, and the parties of the first part hereby agree to pay any damages that the party of the second part may sustain by reason of a sale, said damage to be determined, if the parties cannot agree, by each, party selecting a man who shall assess the damages.”</p> <p>Plaintiff took possession about April I, 1891, and in February, 1892, defendants gave plaintiff notice that they had sold the premises and requested him to surrender possession on April 1, 1892, which he did. Plaintiff served a. bill of particulars of the damages sustained by reason of being deprived of the unexpired portion of the contract set forth in the complaint, describing it as “ being the net profit to be made therefrom, to wit: Four years, commencing April 1, 1892, at an average of $750.00 per year— $3,000.00. Said sum of $3,000.00 being the value of said contract to plaintiff at the date of its interruption by-defendants, April 1, 1892.”</p> <p>On the trial before Mr. Justice ADAMS and a jury, plaintiff proved a contract that he had made with a milkman to take from plaintiff from April 1st at least two hundred quarts a day. He also proved the amount,, uses and value of - the timber and other produce of the farm during the year of his possession- The suitableness-of the farm for grazing and grain raising was also shown, and the number of cows it could keep, and the number of acres that could be kept under the plough, at the same time.-</p> <p>Defendants adduced evidence, which they relied on, to show that the lease was not of value to the plaintiff because of mismanagement of the farm on his part, and. failure to make any profits.</p> <p>The judge in his instructions to the jury, said, among other things:</p> <p>He [plaintiff as a witness in his own behalf] says that, with proper management, he was able to earn the sum of about $1,000 a year for his own use. From that sum should be deducted, probably, the- value of his own services. This evidence has been permitted, not for the ■purpose of establishing the actual value of this lease, because it does not have that effect. As practical farmers, you will understand, without suggestion from the court, that it by no means follows, because in the year 1891 the plaintiff was able to net himself the sum of §991, that he would be able to realize the same amount for any ■other year of the term. It might be that he would have realized more. It is quite possible that he would have realized less ; but you have the fact that he realized this amount, according to his story, for the year 1891. You have had some evidence as to the condition of the farm, and of the season, and this evidence, all taken together, will enable you to determine what would be the value of the lease for the four years which were to follow. It will, perhaps, in addition to your actual experience in such matters, enable you to say how much, under ordinary circumstances, the plaintiff would have been able to earn for himself, by the use of the farm during the unexpired years of his lease. This is only an item of evidence from which you may infer what the value of the lease is.....</p> <p>“ If you find that the plaintiff was deprived, by this sale of the farm, of something of value to himself, you will determine what that value was, and what it would be likely to be for the remaining years of the lease, and you will award to the plaintiff such damages as will fairly represent the net value of the farm to him. If you find that the farm was of no value to him, and he has suffered no damage, your verdict will be for the defendants.”</p>

<p>1. Pleading.] Where the first amended complaint has been stricken out, plaintiff is not entitled to serve a second amended complaint as of course, under Code Civ. Pro., § 542,—authorizing a pleading to be amended once as of course.</p> <p>2. The same.] It seems that a complaint may be amended under Code Civ. Pro., § 542, so as to set up an entirely new cause of action.</p>

<p>Pleading.] Leave to serve a supplemental complaint in an action for divorce setting up additional acts of adultery since the commencement of the action and joining- of issue, cannot be granted.</p>

The plaintiff, Daniel E. Bartlett, brought his action •against James W. Mudgett in the justice’s court in Cattaraugus County, and claimed in his complaint as his first cause of action that the defendant was indebted to him for work and services in pressing into bales 280 tons of hay, at the agreed price of $1.75 a ton, and that there became due to him therefor $490 ; that the defendant had not paid any part thereof, except the sum of $300, and that there remained due on…

Trial by-the court without a jury. The action is brought by Charles H. Colton and another against the N. Y. Elevated R. R. Co. and another, to obtain an injunction against the maintenance and operation of defendants’ elevated railway in a street in front 01 plaintiffs’ premises, and for the damages caused thereby.

Sarah Knisley sued Pascal P. Pratt, Josiah Letch worth and Ogden P. Letchworth, to recover damages for personal injuries sustained by the plaintiff whilst in the employ of the defendants in their factory in the city of Buffalo. She was engaged in operating what is known as a punching machine. The machine was placed upon a bench thirty-two inches from the floor. It was twenty-two inches wide and four feet high. The machine was of iron and was securely bolted to the bench.

Triál by.the court. Action by Marther M. King to annul her marriage with Thomas C. Brewer on the ground that her consent had been obtained by fraud. The further facts are fully stated in the opinion.

Motion to confirm a referee’s report, disallowing a preference claimed by a .creditor of the assignors for wages, or salary earned by him as an employee of the assignors, prior to their assignment. The claimant, Gustav Muller, had been for upwards of five years, and was, at the time of the execution of the-assignment, an employee of the assignors.

The action was brought for the conversion of certain personal property consisting of lithographic drawings dr engravings upon stones originally owned by the Hatch Lithographic Company, and which came into defendant’s possession through the foreclosure of a chattel mortgage executed by that company. The complaint was dismissed at the trial. Upon an- application to the trial judge for a new trial,, the following opinion was rendered :

Motion by plaintiff to continue temporary injunction granted in an action brought by Isaac Cahn, a mortgagee, against Mary S. Hewsey, the mortgagor, to restrain the commission of waste, impairing the value of the mortgage security.

The action was brought by Anthony Solarz, as art employee of the defendant, the Manhattan Railway Company, to recover damages for personal injuries caused by the giving way of a scaffold upon which he was directed to work. The further facts are fully stated in the opinion.

Appeal by plaintiff from a judgment of the General Term of the New York City Court, which affirmed a judgment for defendant upon a verdict in its favor ; and also from the affirmance of an order denying plaintiff’s motion to set aside the verdict and for a new trial. The action was brought by Abey Gündlin as a passenger of the defendant, the Ham burg-American Packet Company, to recover for the loss of certain pieces of baggage.