Volume 38 — New York State Reporter

<p>Master and servant—Negligence.</p> <p>Plaintiff, who was employed by defendant, was injured by reason of the breaking of a slat of a ladder he was climbing which caused him to fall upon the ice beneath. In an action for such injuries he did not show that there was any defect which was discoverable by inspection or known to defendant. He testified that it would not have broken if the upper part had been properly nailed, hut it appeared that it split lengthwise. Held, that there was no evidence to show that defendant was negligent, and that the complaint should have been dismissed.</p>

<p>Appeal from decree of surrogate, awarding to claimant $1,000 for services rendered to decedent.</p> <p>The testator died at his home in Mount Kisco on the 3d of August, 1888, leaving him surviving his widow Hester M. Ryder, and his daughter by a former wife, Sarah E. Hall, and the claimant, who is a daughter by his last wife. Mrs. Hall has been for many years residing away from home with her husband. The testator owned a house and lot in which' he and his wife with the youngest daughter resided alone together, until the latter was married to Mr. Dromgoole, in or about the year 1881, when he also became a member of the family. Ho special agreement with him is shown, but while the claimant’and her husband continued to live in testator’s house Mr. Dromgoole and Mr. Ryder both contributed in furnishing supplies for the family. About February, 1887, the testator became so ill from softening of the brain as to require considerable care. As the disease progressed more and more attendance and services were required until, toward its latter stage, they were almost unremitting in their character. Attendant upon and as a consequence of the disease he lost control over his organs of evacuation, and a large part of the time was devoted by Mrs. Dromgoole to the cleansing of his person, his linen and other clothing, bedding, and the carpet of his room. He required watching lest he should wander away, and much of the latter part of the period had to be confined in his room. The most of these necessary offices were rendered by Mrs. Dromgoole, as it was difficult to keep a servant on account of the fetid condition of the atmosphere of the house.</p> <p>By his will, made prior to his illness, and in which his wife and Mrs. Dromgoole were appointed executrices, he divided his property equally between his wife and two daughters.</p> <p>Mrs. Dromgoole presented a claim for these services in October last amounting to §2,160, but she had previously presented one for the same services, amounting to only $1,080.</p>

<p>Demurrers to complaint.</p>

<p>Appeal, by contestants, from a decree of the surrogate of Ontario county, admitting the will to probate.</p>

<p>_ Appeal from a judgment entered on the report of a referee, dismissing the complaint as to the respondent</p>

Action to establish a partnership between plaintiff and defendant in the purchase, improvement and sale of certain real estate, for an accounting in relation thereto, and a recovery of a half interest in the profits. The facts appear fully in the opinion of the referee, which is as follows:

<p>Appeal from a judgment in favor of defendant Atkins, dismissing the complaint</p> <p>Action for an accounting between plaintiff and defendant Atkins and others in relation to the expenses incurred by plaintiff in supplying steam and hot water to defendants' houses. The common source of title conveyed to plaintiff’s grantor a house in the cellar of which was a boiler and steam heating apparatus connected with the adjoining houses. The deed contained a covenant on the part of the grantee to furnish “ steam for heating and the hot water for the adjoining buildings on the east of the premises hereby conveyed as now connected," so long as the expense thereof should be paid by dividing the same among the buildings using the steam and hot water.</p>

<p>Exceptions ordered heard' at general term, in first instance, after direction by the court that the jury find a verdict in favor of the defendant</p> <p>The action was brought to recover $1,360, with interest thereon, for salary alleged to be due the plaintiff as inspector of masonry on the new aqueduct during several periods of suspension.</p> <p>It was claimed by appellant that the commissioners had no power to suspend him without pay. It appeared that on January 23, 1889, during a period of suspension, he signed an agreement reciting his appointment and providing in consideration thereof to faithfully discharge his duties, and that in case of discharge or suspension his pay should cease from the time of such suspension.</p>

<p>1. Trial—Exception to charge.</p> <p>In an action for wrongful discharge, the court charged that if the oath uttered by plaintiff was the child of irritation created by the circumstances and was not a matter of disrespect to the employer, and excusable under the circumstances, it was not a cause of discharge; but if it was deliberate disrespect to the employer, and so intended, and was not called out by anything that had happened, it was for the jury to say whether or not it was a cause for discharge. Held, that an exception “ to that part of the charge” where it was said “if the oath was the child of irritation, etc., and not called out by anything liable to irritate him, then it was a proper cause of discharge, otherwise not," was not sufficient to present the objection that the court allowed the jury to say that the oath, even though a deliberate disrespect, was n< t cause for discharge.</p> <p>2. Master and servant—Compensation—Evidence.</p> <p>Plaintiff was to be paid a certain salary and commissions on sales made by him directly or indirectly. He procured an order for inspection of defendants’ books, or a sworn statement of such sales. An exhibit was presented by plaintiff, claimed to have been given in compliance with the order, but which was shown to have been given on request of his counsel on his furnishing a list of names. Held, that such exhibit was only evidence of defendants’ sales, and not of sales made by plaintiff.</p>

<p>Appeal from judgment of the supreme court, general term, first department, reversing order requiring appellant, an attorney of this court, to pay over certain moneys or be committed for a contempt.</p>

<p>Divorce—Application for increased alimony.</p> <p>While the court has power to increase alimony in actions for divorce, such increase should not be granted unless new facts are shown which did not exist or were not known to the applicant when the former order was made; otherwise such an application is in fact an appeal from the discretion of one justice to that of another.</p>

<p>Appeal from judgment of the supreme court, general term, second department, affirming order directing a peremptory mandamus-to issue against appellant, directing it to make a call and continue making and calling an assessment upon its members to pay a judgment recovered by respondent.</p> <p>The defendant, a corporation organized under the laws of this state as a mutual benefit association, issued to one Isaac Meyers a certificate, payable to the relator or his legal representatives, in the nature of a policy of insurance for $3,000, or for such proportion of the said sum as was provided for in the bylaws of the association. The consideration for such certificate was the representations made by the party insured in his application for insurance and the payment of a certain sum as admission. fee, and the further payments provided in the by-laws. Printed on the back of the certificate was a copy of article 6 of the bylaws, providing for making an assessment on members, as therein stated, to pay death losses. But one assessment, under the by-laws, could be levied for any one death loss. Isaac Meyers died while the certificate was in force and while he was a member in good standing in the company. The certificate then became due and payable to the relator. One assessment was made upon the members in conformity with defendant’s by-laws and regulations, and the relator was paid a certain proportion of the amount -of the certificate, which he acknowledged as payment in full of his claim by reason of the death of said Isaac Meyers. Subsequently the relator brought an action against the defendant to recover the balance alleged to be due on such certificate, and that action resulted in a judgment against the defendant for the recovery of such balance. The findings of the court made upon the trial of such action are contained in the record herein, from which it appears that an assessment was made for the purpose of providing a fund with which to pay the amount named in the -certificate, and such assessment had been paid, and the defendant had on hand, or should have had, as the court found, the moneys derived therefrom, which were sufficient to pay the amount stated in the certificate, but which payment had only been made in part. It was further found that the defendant had sufficient surplus funds in its possession for the payment of the plaintiff’s claim in full, and which claim would have been fully paid and satisfied therefrom, and the defendant had promised to pay the claim from such surplus fund in its possession. The company failed to pay, however, and judgment for the balance was given, which was duly entered, and no appeal was taken. The plaintiff in the action duly issued execution upon the judgment, and it was returned wholly unsatisfied.</p> <p>The relator then commenced these proceedings to compel the •defendant by mandamus to make another assessment upon the members holding certificates in the defendant company and to continue making them to an amount equal to the sum of the j udgment until it was fully paid and satisfied. The special term granted the writ substantially as asked for and its order was affirmed at general term, and from the order of affirmance the defendant has appealed here.</p>

<p>Appeal by defendant from judgment entered on findings and conclusions made at special term.</p>

<p>1. Chattel mortgage—Assignment for creditors.</p> <p>Where a debtor gives chattel mortgages which are not properly refiled and after the mortgagee has taken possession, makes an assignment for the benefit of creditors, creditors who thereafter recover judgment cannot attack the validity of such mortgage. The mortgagor has no interest in the property; it has either passed under the mortgage, if valid, to the mortgagee, with the right of redemption in the assignee, or if invalid the whole title passes to the assignee.</p> <p>2. Same.</p> <p>After default in a chattel mortgage the mortgagor has a beneficial interest in the property which ho can convey even though the mortgagee has taken possession thereof.</p>

<p>1. Executobs and administbatobs—Sale oe decedent’s estate.</p> <p>Neither the petition by creditors of an estate to subject testator’s land to the payment of his debts, nor the citations contained the name of Hyland, a mortgagee; afterwards an affidavit of the petitioner to the effect that other persons named, not including Hyland, were interested, was duly filed, and the surrogate issued citations to them and one to Hyland, which was duly served upon him. He appeared and objected to the jurisdiction of the surrogate, and the creditors introduced evidence of the filing of a notice of lis pendens and bringing of an action by them within three years in conformity with the statute. Held, that Hyland, by his appearance generally and taking part in the proceeding, became a party to it, and assuming that the surrogate had jurisdiction of it, the power as against Hyland to make a decree was as effectual as if he had been an origina, party.</p> <p>2. Same.</p> <p>A piece_ of_ land in Steuben county belonging to testator was described in the petitition, but not included in the Us pendens. It was specifically devised by the will and the surrogate found that the failure by Us pendens to subject that land_ to this proceeding was not excused on the ground that it could not by diligent inquiry have been ascertained by the petitioner. Held, that Hyland should have been relieved by direction that the specifically devised real estate described in lis pendens be mortgaged for only the same proportionate amount of the deficiency appearing in the sale of residuary lands with which it would have been charged if the Steuben land had not been omitted.</p> <p>3. Same.</p> <p>About $5,000 in personal property came into the executor’s hands which he used; the debts were upwards of §30,000. The debt in question developed only a short time before the expiration of the three years after letters testamentary were first issued. Held, that the' inference was permitted that in view of the situation the personal property was not by the exercise of reasonable diligence available ior application on the debts within the time required or up to the time of filing the petition.</p> <p>4. Same—When surrogate not qualified to sit.</p> <p>An action had been brought on the debt, in which the surrogate was relator, against the estate and judgment obtained, but the claims upon it had been rejected by the surrogate. Held, that it could not be assumed that he had any personal interest in it or had any relation to it which could make the question raised for the first time on review available.</p> <p>5. Same—Will—Equitable conversion.</p> <p>The testator gave the residence of his estate to his “heirs and next of kin in the same portions in which ” it “ would be divided or distributed ” in case of his death intestate, directed it to be distributed and paid in cash in five years from his decease, and for that purpose gave to the executors power of sale. Held, that there was no equitable conversion.</p>

<p>Appeal from judgment entered upon order of the general ..erm of the supreme court, in the first judicial department, affirming judgment entered on a verdict in favor of the plaintiff.</p> <p>The action was brought to recover $10,000 alleged to have been advanced by the plaintiff to the defendant to be used in the promotion and construction of a cable railway in the city of New York upon the promises of the defendant to repay the amount on demand. The demand and refusal are alleged and by the answer admitted. The other allegations of the complaint are denied.</p>

<p>Appeal from order denying motion to vacate attachment</p>

Reargument of appeals from orders or decrees of the surrogate of the county of New York, overruling exceptions to, and confirming the report of a referee.

<p>Appeal by the defendants from a judgment entered upon the report of a referee in favor of the plaintiff for $11,108.30.</p>

<p>Appeal from order dismissing the proceeding and the alternative writ of mandamus theretofore granted.</p>

<p>Appeal from a judgment entered in Orleans county, October II, 1890, on report of a referee dismissing the plaintiff’s complaint on the merits. The general term affirmed the judgment on the opinion of the referee, which is given below.</p>

<p>Appeal by_ plaintiff from order setting aside judgment entered as of default and compelling plaintiff to receive defendant’s answer.</p>

<p>Appeal by defendants from a judgment in favor of the plaintiff, entered upon the report of a referee.</p>

<p>Appeal from judgment rendered at equity term.</p>