Volume 32 — New York State Reporter

<p>Appeal from portions of the decree of the surrogate of Monroe county, entered December 9, 1889, settling the accounts of the executor.</p>

<p>Bill of particulars — Negligence.</p> <p>In an action for negligently setting fire to plaintiff’s house, when the answer alleges that the fire was caused by volatile and dangerous materials kept on the premises by plaintiff, and (that his negligent keeping of them contributed to the loss, Held, that plaintiff was not entitled to a bill of particulars as to the manner wherein the materials were negligently used or exposed by him so as to cause the fire, and defendant can only be required to specify the materials referred to, or if unable to do so, to give the reason therefor, and give a description thereof as nearly as possible.</p>

<p>1. Evidence — Agreement made in absence ov plaintive cannot be SHOWN UNLESS AGENCY SHOWN. |</p> <p>In an action upon a written instrument for the payment of $500 to plaintiff in case he was not repaid an advance made for rent of a corporatian in a specific time, the defense was that plaintiff had been paid. Defendant offered to prove an arrangement made with one F., when plaintiff was not present. Held, that the court properly overruled questions as to what the arrangement was, as there was no proof at the time they were asked that F. was plaintiff’s agent in respect of the matter in controversy.</p> <p>2. Same.</p> <p>Counsel stated that the understanding was that the rent should have a prior lien under a mortgage made by the company to F. as trustee, and that he was to see that any collections made should be first applied to its payment. Held, that this did not make the evidence admissible, as such arrangement would not result in payment of the rent until collections were made and applied to repay the amount that had been paid for rent.</p>

Action by the plaintiff to be released from a contract for the purchase of the premises described in the complaint. As an incident to such relief, he asks for the return of the ten percent. paid by him at the sale, the auctioneer’s and salesroom fee, and his counsel’s fee for examining the title. The defendants asked a judgment for specific performance.

<p>Appeal from an order at a special term reviving and continuing this action against Emilie Huber, Otto Huber and Louis V. Schuler, executors of the last will and testament of Otto Huber, deceased, as defendants, in place of the said Otto Huber, deceased, and bringing in the executors as defendants by a supplemental summons and complaint, and ordering that the action proceed as one action against the survivors of the original defendants and the said executors.</p> <p>Action upon a number of promissory notes made for the accommodation of and delivered to the firm of Peter Lenk. & Co., and now held by plaintiff. The original defendants were Peter Lenk, Carl P. Lenk, Budolph Lenk, Otto Huber and John Lindenmeyr. The complaint alleges that the defendants were all general partners in said firm of Peter Lenk & Co., the defendants Huber and Lindenmeyr becoming such by reason of their failure to pay in cash to the said firm the respective amounts of $50,000 and $20,000 certified by them to have been contributed as special partners to the common stock of said firm, and by reason of the falsity of their certificates of such payments. Subsequently defendant Huber died, and letters testamentary were, upon probate of his will, issued by the surrogate of Kings county to Einilie Huber, Otto Huber and Louis Y. Schuler. Upon these facts the order in question was made.</p>

<p>1. Municipal corporations — Assessments—Laws 1880, chap. 550.</p> <p>The provision of § 1 of chap. 550, Laws of 1880, requiring all assessments for local improvements theretofore completed to be finally passed upon in six months from the passage of the act, is directory merely and not mandatory, and an assessment for such improvements may be laid within a reasonable time after the expiration of such six months.</p> <p>2. Same — Interest.</p> <p>Interest to the end of such six months is properly included in the assessment.</p> <p>{Matter of Deering, 3 N. T. State Rep., 593, followed.)</p>

<p>Legacy — Interest.</p> <p>A legacy bears interest only from the time when it becomes due and payable, which in cases where no time is fixed for payment by the will is one year after granting of letters testamentary, and not from one year after testator’s death.-</p>

This is a special proceeding instituted against Philomene Chevalier, as administratrix with the will annexed, etc., by a next of kin-and devisee, etc., of said deceased, consolidated, under § 2728-of the Code of Civil Procedure, with the proceeding for the-judicial settlement of the accounts of the said administratrix, etc., made upon her own application.

<p>Appeal — Festal judgment.</p> <p>After the entry of judgment in this action an order was granted to the! effect that it should not be deemed to determine whether a certain clause! in the agreement in question was abrogated. That question was re-| ferred and the referee found such clause abrogated and his report was! confirmed and an order made declaring the clause abrogated and directing! distribution accordingly. Held, that the order was in effect a final judg-l ment and appealable.</p>

<p>1, Fobeclosube — Equities between defendants not affecting plaintiff CANNOT DELAY BECOVBBY.</p> <p>In an action of foreclosure the appellant’s answer alleged that in 1888 she conveyed the premises to certain of the defendants on an agreement that they should advance moneys to pay debts and the interest on the mortgage and reconvey in two years on repayment of the sum advanced, and also a breach thereof, and asked that the agreement be reformed and decreed to be specifically performed, and that defendants keep the premises free from the mortgage in suit. Held, that affirmative relief of this nature was not authorized by § 631 of the Code; that there was no defense to the mortgage and that appellant was not entitled to delay the foreclosure.</p> <p>3. Reference.</p> <p>So long as the order of reference remains in force the referee is fully empowered to act, and it is proper for him to overrule objections to his power to determine the issues between the parties.</p> <p>3. Costs — Extra allowance.</p> <p>The exercise of the discretion of the court in granting an extra allowance will not be reviewed where there has not been an abuse of it.</p>

<p>1. Negligence — Railroads—Charge.</p> <p>Plaintiff was injured by the starting of defendant’s train as she was alighting therefrom. The court charged that if the jury found that defendant was negligent in starting the train, they should examine the question as to whether plaintiff was guilty of contributory negligence; and that if, under the circumstances, she acted ns a prudent and careful person would have done she was not negligent.</p> <p>53. Witness — Credibility,</p> <p>The mere fact that there is a difference in the testimony of the plaintiff on different trials of the same action does not, as matter of law, discredit that last given. Such fact may be proper to call to the attention of the jury, but they are to determine the credibility of the evidence.</p>

<p>Stay — Nonpayment oe costs.</p> <p>A stay of proceedings cannot be granted under § 779 of the Code for non-payment of costs of an appeal from, an order granting a new trial on the merits.</p> <p>(Following Fhsenlord v. Clum, 34 N. Y. State Rep., 103.)</p>

<p>Contract — Book canvassers.</p> <p>In an action for commissions as canvasser for books, plaintiff claimed that he was entitled to pay when his orders were sent in, while defendants contended that he was not entitled thereto until the subscription was proved. This plaintiff denied. It appeared that the contract was not the same with all canvassers, and that there were some that would not work on proved orders. It was also shown that plaintiff had a good name as a canvasser. Plaintiff was corroborated by other witnesses. Held, upon all the evidence, that there was a preponderance in plaintiff’s favor, and that he was entitled to judgment.</p>

<p>Vendor and purchaser — Cloud on title — Covenants.</p> <p>A deed from the city of lands under water recited that it was the inten. tian of the parties that there should forever remain adjoining said premises certain slips for the use of vessels, and contain'd a covenant by the grantee, for himself, hisjheirs, representatives and assigns, to erect and maintain wharves or streets twenty-five feet wide along said slips into the river on the premises so conveyed. It also contained a reservation by the city of the right to open one or more streets across the premises so granted without compensation. Subsequently a further grant was made extending further into the river, and on the latter premises the wharves and streets were constructed. The city has exercised its option and opened streets on said premises. Held, that the aforesaid covenants do not constitute a cloud on the title of a subsequent grantee of a portion of the premises first granted.</p>

<p>1. Evidence.</p> <p>In an action for goods sold, where the answer sets up a counterclaim for logs cut under an agreement, and the reply is a general denial, evidence of non-performance by defendant of a prior contract is not within the issues and is not admissible.</p> <p>2. Same — Explanation op swokn statement.</p> <p>Testimony of a witness as to the meaning of a sworn statement made by him is inadmissible. The operation of his mind is not competent.</p> <p>3. New trial — Newly discovered evidence — Diligence.</p> <p>An affidavit for a new trial on the ground of newly discovered evidence, which states that deponent lrid forgotten that the newly discovered witness was present at the transaction in question; and that although he used every effort to discover everything he thought would, be of service on the trial, he was unable to procure this evidence until after the trial, is not sufficient to show diligence; the affiant should show what he, in fact, did and what effort he put forth to procure testimony.</p> <p>4. Same.</p> <p>Where the reply to a counterclaim is simply a general denial, newly discovered evidence of a settlement or payment of such claim is not a ground for a new trial, as such issue is not presented by the pleadings.</p>

Kavanagh to distribute among his next of kin within ten days from the service of a copy of the order, the sum of $9,062.85 after deducting seventy-five dollars from the share of each person to provide for the expenses of an appeal by another party, and in case of default on their part then 'directing their punishment for a contempt upon the filing of an affidavit of such default.

The action was brought to set aside an alleged illegal assessment upon real property, and to recover back taxes and other moneys, paid out on account thereof. The findings of fact by the trial court are in accordance with the evidence in the case, and are substantially as follows: The assessment was made in 1864 upon real estate in the second ward of Oswego, to, and in the name of, one William Averill, and the tax levied thereon.

<p>Railroads — New York City — Laws 1860, chap. 10.</p> <p>A railroad cannot be built in the city of New York under the general railroad act. Chap. 10, Laws 1860, is not confined to street railroads, but applies to all railroads which cross the streets, whether below or above the surface, except those specially exempted therefrom.</p>

Appeal by defendants from a judgment on verdict. Action to recover for damages inflicted upon plaintiff in a collision between two trains of cars on the Hew York & Brooklyn bridge, alleged to have occurred through the gross carelessness of the employees of the cities upon the bridge.

<p>Legacy. — Interest.</p> <p>In the absence of an express direction in the will as to the time of payment of a legacy, it becomes due and interest begins to run at the end of one year from the issuing of letters testamentary, and not from the expiration of one year from the death of the testator.</p>

<p>1. Negligence. — Railroad crossing.</p> <p>On the trial of an action for damages caused by a collision of plan tiff’s carriage with defendant’s train at a crossing, the court declined to charge that Ihe particular gait at which the plaintiff was driving as he approached the crossing, which was described as a slow trot, was of itself negligence on his part. Held, no error.</p> <p>2. Same. — Evidence.—Trial.</p> <p>An objection to the form of a question and the order of proof are both in the discretion of the court.</p>

<p>1. Wills — Construction of — Provision as to death without issue.</p> <p>Where there are indications in a will which tend to show a different intention on the part of the testator, the phrase “dying without issue” will not be construed as meaning a death in the lifetimé of testator.</p> <p>2. Same.</p> <p>The will provided that if any of testator’s children, except one daughter, should die without leaving child or children or heirs of the body, the share of the one so dying should go equally to the other children, “ but in the manner and subject to the like limitations as the specific bequests to each of them as has been hereinbefore provided and given.” As to the share of the excepted daughter it had been provided that on her death without leaving a will her share was to be divided among the other children. Seld, that this restriction applied to a death after that of testator and the bequest to the other children being subject to like limitation the share of a child dying without issue after the death of testator went to his other children.</p>

Appeal by defendants from an interlocutory judgment in favor of plaintiffs rendered at special term. Defendant Pease was a merchant in New York. The plaintiffs issued to him letters of credit on their Paris house, under some of which one George St. Amant was authorized by Pease to draw “for the cost of merchandise to be exported to the United States,” the merchandise being security for the drafts.

<p>Pleading — Denial in answer.</p> <p>A complaint alleged that plaintiffs consigned goods to defendant; that he sold them and received a certain amount, which he refused to pay on demand. The answer admitted plaintiffs’ copartnership; that 'defendant was their agent; that they consigned goods to him; that he sold some of the goods and received some of the sale price, and denied each and every other allegation. Held, that this was a denial of the allegation that he had not paid the money over.</p>

<p>Arrest — Allegations oe complaint — Code Civ. Pro., § 549.</p> <p>An order of arrest cannot, be granted in an action to recover moneys collected by an agent or factor, unless the complaint contains an allegation that such money was received by him in a fiduciary capacity.</p>

<p>1. Chattel mortgage — Rights and priorities as between mortgagee, JUDGMENT CREDITORS AND RECEIVER OF MORTGAGOR.</p> <p>A chattel mortgage, given as security for notes falling due at different times, provided that if any instalment was not paid or if any judgment was entered against the mortgagor, the whole sum should become due, and that-the mortgagee could take possession and sell on giving five days’ notice. One of the notes fell due and was unpaid,and three judgments were recovered and executions levied on mortgaged property three days before a receiver of the mortgagor was appointed. By consent of all parties the receiver sold the property, the proceeds to be held subject to the rights of the respective parties. Held, that the mortgagor had no interest in the property upon which the executions could be levied,and the judgment creditors were entitled to no part of the fund; that the mortgagee was entitled to be paid the amount of the mortgage and the surplus held by the receiver as-part of the general fund for creditors of the mortgagor.</p> <p>8. Same — Commissions on sale.</p> <p>So far as the receiver sold solely for the benefit of the mortgagee he acted as agent of the mortgagee and was entitled to commissions thereon, which should be allowed to the mortgagee for that purpose; but his commissions upon the balance of the sale is to be determined upon his final accounting.</p>

<p>Executors and administrators — Where claimant had an express contract HE CANNOT RECOVER ON QUANTUM MERUIT.</p> <p>Where there was an express contract between the deceased and the claimant, the latter on failure to prove its terms cannot abandon it and seek to recover on a quantum meruit.</p>

<p>Appeal from judgment sustaining demurrer to a counterclaim in the answer.</p>

<p>Wills — Construction of — Distribution of surplus among legatees.</p> <p>Testator bequeathed to one S. a note made by her and to a church the residue of the proceeds of the household furniture after paying funeral expenses and then directed the residue of his estate to be applied to the payment of certain legacies named in that clause and provided that if any residue was left it should be divided among “the said legatees in the same proportion that the several legacies bore to each other ” and if a deficiency it should be borne in the same manner. Held, that the excess was intended to go only to the class of legatees named in the last clause and that S. and the church could not share in the surplus.</p>

<p>1. Insurance (lies) — Forfeiture—Reinstatement.</p> <p>After the certificate in suit had lapsed for over a month the premium was paid .and a receipt taken, which stated that it was given on condition that the member was living and of temperate habits, and in as good health as when originally received as a member, and that otherwise the payment, receipt and original certificate should be null and void. The deceased member was not of temperate habits and died the following day of fatty degeneration of the heart. Held, that the payment and receipt constituted a new contract; that the insured was bound by the terms and conditions of the receipt whether he or his agent read it or not, a'nd the facts not being as stated therein, the certificate was not reinstated, but remained null and void.</p> <p>3. Same — Waiver.</p> <p>A mere request for proofs of loss, which does not require extra expense and effort on the part of the beneficiary, will not amount to a waiver of such an existing forfeiture.</p>

<p>1. Railroads — Forfeiture of charter.</p> <p>By § 12 of chap. 585, Laws 1874, the company to whose rights the petitioner succeeded was required to commence the construction of its road within two years and complete it in three years thereafter, and “ failing therein shall forfeit the rights acquired by them under this act.” The time to complete was extended until 1883, but the road was not completed until 1885. Held, that the default would not of itself divest the company of its franchise, but that a judicial determination was necessary for that purpose.</p> <p>3. Same — Elevated—Construction of.</p> <p>Said act provided that iron columns should be placed on each side of the street “ on a line with the curbstones” and iron girders “placed across the streets and avenues.” In 1875 it was amended so as to require the columns to be placed on each side of the street “ as near as practicable on a line parallel with the curbstones,” and the girders to be placed “above” the streets. Held, that the words " near as practicable” related, not to the curb, but to the parallelism of the line of columns with that of the curb, and that a structure the columns of which were 8 ft. 8 in. from the curb on each side was such as was authorized by the act as amended.</p> <p>S. Same — Eminent domain.</p> <p>A railroad may acquire land outside of its proper route for the purpose of making connection with an intersecting or connecting road.</p>

<p>Vendor and purchaser — Extension op time — When specific performance WILL NOT BE DECREED.</p> <p>One B. having brought action for specific performance of a prior contract efor the sale to him of the same premises and obtained a stay on appeal from a judgment against him, the parties hereto agreed to extend the time of performance until the final termination of the controversy between defendant and B., and if it was determined in defendant's favor plaintiffs were to take title and pay all taxes, etc., levied in the meantime". The action brought by B. is still pending in the Court of Appeals. Plaintiffs have offered to deliver a consent by B. and his attorney that the lispendens should be cancelled and an agreement by B. acquiescing in the delivery of a deed to plaintiffs with a covenant to warrant and defend their title. Held, that specific performance would not be decreed; that until the final termination of B’s action defendant was under no obligation to carry out her contract with plaintiffs and her rights in that respect were not affected by the agreement between plaintiffs and B.</p>

Action brought by the plaintiff against the defendant to recover the sum of $1,483.33, with interest from the 8th of February,1884, for a balance alleged to be due to the plaintiff from the defendant for unpaid salary at the rate of $2,000 per annum, claimed to be due to plaintiff as salary while acting as treasurer of the defendant

<p>Brokers — Commissions.</p> <p>Where the evidence as to plaintiff being the procuring cause of the sale of defendant’s real estate under an employment for that purpose is conflicting, and is submitted to the jury under a proper charge, a verdict in plaintiff’s favor will not be disturbed.</p>

<p>1. Vendor and purchaser — Title—Mortgages.</p> <p>The mere fact that there are mortgages on the premises which are overdue is not a defect which will relieve a purchaser from his bargain under a contract which calls for a deed free and clear from incumbrances, as money could be substituted therefor or a deduction on that account made from the purchase money.</p> <p>2. Same — Fences.</p> <p>An incumbrance in the shape of an obligation to maintain a fence between the lands and a railroad is not sufficient to affect the title offered, where the growth of the city has rendered it improbable that any fence - could or would be required.</p> <p>3. Same — Opening streets.</p> <p>The fact that proceedings have been instituted to open a street across the premises is not a valid objection to the title so long as the vendor has not been deprived of her title by those proceedings.</p>

<p>Business corporations — Directors—Resignation—Service or. process.</p> <p>Summons was served on one L., who had been a director, secretary and treasurer' of defendant. In 1880 defendant’s board of directors passed a resolution to transfer all its property to the stockholders, who then surrendered their stock. Thei'e were no formal resignations, but the president declared that they were no longer stockholders or directors and that the board was dissolved. L. subsequently noted in the minutes his resignation as treasurer. No further meeting or election was held. Held, that there was no legal resignation of the directors ; and that they still remain such officers, and that the service on L. was valid against the company.</p>

Action to restrain the use by defendant of certain words in the title of its publication. Both plaintiff and defendant are publishers at the city of New York of periodicals devoted to engineering and railroad interests.

<p>Insurance (life) — Assignment of policy by married woman.</p> <p>In 1874 one F,, claiming to act as attorney for his wife, assigned a policy on his life in her favor to one FT. as collateral security for his note. FT. paid the premiums, and in 1880, at the request of F. and his wife, surrendered the policy and took a paid up policy. Subsequently, Mrs. F. assigned the policy to defendant Van Campen, and defendant Eads advanced money thereon. Held, that the act of the husband in assigning the policy to FT. was ratified by the acts of Mrs. F. in 1880 after her disabilities were removed, and that such assignment was valid and effectual to the extent of the premiums paid by FT.</p>