Volume 51 — New York State Reporter

<p>Motion to amend remittitur.</p>

<p>Execution — Amendment—Mistake.</p> <p>The court has power under § 723 of the Code to amend an execution by including interest inadvertently omitted, even after it has been collected and returned.</p>

The action is in replevin, brought by the plaintiff to recover ■cloaks alleged in the complaint to be of the value of $4,700. The complaint sets forth that the plaintiff is the owner and entitled to the immediate possession of certain property described in a schedule annexed thereto, and that the defendants wrongfully took and wrongfully became possessed of the saíne and refused to return the same on demand.

The following is the opinion of Rumsey, J., acting as county j udge, in this and five other actions brought by plaintiffs against different parties.

<p>1. Attachment — Recitals—Correction of.</p> <p>Where the affidavits for an attachment set forth that defendant has been tried and convicted of an offense, which conviction was reversed by the general term, but affirmed by the court of appeals, and that on hearing of such affirmance defendant immediately fled to Canada, a recital in the attachment that he has departed from the state with intent to defraud creditors is at most an irregularity without injury to the defendant or subsequent attaching creditors, and, therefore, to be amended as a matter of course or disregarded.</p> <p>3. Same.</p> <p>Such facts show that he deparled to avoid imprisonment and with an intention not to return, and hence show non-residence.</p>

<p>Partition — Appeal—Waiver.</p> <p>After the entry of interlocutory ancl final judgment in partition, the defendants appealed. Two days afterwards the referee executed the deed and received the entire purchase price, and two days later paid two of the defendants $72,500 each, their share of proceeds, hut which did not include their costs. The defendants, B. and W., as executors, have not received. anything under the judgment. Held, that as defendants have received nothing to which they would not be entitled iu any event, and as the only share in question has been deposited with a trust company, etc., defendants have not waived their right to prosecute their appeals.</p>

<p>Appeal from judgment of the supreme court, general term, first department, affirming judgment rendered at circuit on verdict of jury in favor of defendant</p>

<p>Bill of particulars — Marriage.</p> <p>In. an action for admeasurement of dower, where the issue is as to plaintiffs claim to be decedent’s widow, a bill of particulars setting forth the time, piace and witnesses to a non-ceremonial marriage, is sufficiently comprehensive, and plaintiff should not be required to give the last known address of said witnesses; the hour of the marriage, or particulars of acts, declarations or acknowledgments of deceased in proof of such marriage, as this would call for a disclosure of evidence and transcend the office of a bill of particulars.</p>

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

<p>Appeal by plaintiff from judgment dismissing the complaint us against defendant McArdle.</p>

<p>Appeal from judgment for plaintiff entered on verdict directed by the court</p>

<p>Costs — Taxation—Waiver op objection.</p> <p>An objection to the reception of additional proofs at special term on appeal from a taxation of costs, cannot be raised for the first time at general term. The right to object, if not taken at the time such proofs are offered, is waived.</p>

<p>1. Brokers — Commissions—Agency.</p> <p>Defendant’s brother was her general agent and had authority to sell certain premises owned by her for $19,500, provided he received compensation from the buyer for his services, and gave the same to plaintiff, as broker, for sale. Plaintiff found a purchaser who was willing to pay $19,900, and presented the offer to defendant’s brother, who signed the contract, and finally a deed was given by defendant, to said purchaser. Held, that the brother had authority to accept such offer, and that plaintiff was entitled to his commissions.</p> <p>2. Reference — Report—Direction of judgment.</p> <p>Where the terms of the judgment to which the successful party is entitled is evident from the referee’s report, his report is sufficient under § 1082 of the Code, although it does not expressly direct such judgment.</p>

<p>Appeal from order directing that the cause be placed on the short cause calendar.</p>

<p>Appeal — Judgment.</p> <p>Where the evidence is conflicting on all points, and there was sufficient, if believed, to sustain the findings of the court, the judgment will not be disturbed on appeal.</p>

<p>Appeal from order adjudging defendant guilty of contempt</p>

<p>Appeal from order vacating and setting aside the service of the summons herein.</p>

<p>Appeal from a judgment entered on the verdict of a jury in favor of the plaintiff, on the 9th day of May, 1892, for the sum of $310.98, and also from an order denying the motion for a new trial.</p>

<p>Partnership — Sale .</p> <p>In an action for goods alleged to have been sold to a firm, one of the defendants denied all the allegations of the complaint except the partnership of defendants. The other partner, W., testified that he bought the goods for the firm, and was corroborated by plaintiff’s witness; while the answering defendant testified that he did not purchase the goods, but they were put in as a part of W.’s capital stock, and that there were no goods purchased to his knowledge of these people. Held, that W. as partner had full power to purchase goods for the firm, and upon such purchase the firm became liable therefor; and that the court properly directed a verdict for plaintiff.</p>

This action is brought to recover damages for personal injuries alleged to have been sustained by the plaintiff, by reason of defendant’s driver running into the wagon of plaintiff, and was heard before the court and a jury. The jury rendered their verdict for the plaintiff on the 25th day of October, 1892, for the sum of five hundred dollars ($500). Judgment was entered thereon on the 26th day of October, 1892. An order was entered denying defendant’s motion for a new trial.

<p>Composition — Fraud—Secret advantage.</p> <p>Plaintiff refused to sign a composition deed entered into by defendant with his creditors, unless it should receive a note for $500 in addition to the compromise sum fixed in the deed, and, upon so signing, received from defendant such note with notes for its percentage, without the knowledge or consent of the other creditors. Held, that such transaction was fraudulent and permeated the entire series of notes, and that none of them were valid or enforceable.</p>

<p>Appeal by defendant from judgment for plaintiff - entered on verdict of a jury, and from order denying new trial.</p>

<p>Contract — Construction of.</p> <p>Defendant being engaged as attorney for one of the defendants in a foreclosure action, and wishing to be retained by the other defendants, engaged plaintiff to procure a retainer from such defendants, and executed a written contr ict, by which he agreed to pay him one-fourth of the compensation received by defendant which might accrue by reason of a surplus over and above a mortgage in said foreclosure action, naming the parties, and directing the referee to pay him said share. Thereafter defendant, on denial of a motion to have the land sold in parcels, obtained a stay of the foreclosure, and commenced partition, in which the lands were sold, and brought a large surplus. In an action to recover one-fourth of the compensation received by defendant, Held, that the contract applied only to the foreclosure action, and gave plaintiff no right to claim a part of any fee earned by defendant in any other action, and that the complaint should have been dismissed.</p>

<p>1. Arrest — Fraud.</p> <p>Where the allegations of fraud in plaintiffs’ papers are such that they will hear an interpretation consistent with defendant’s innocence, the arrest will be set aside for the insufficiency of plaintiffs’ papers.</p> <p>3. Same — Bar.</p> <p>A prior judgment for the price of goods sold is a bar to an action to recover damages for fraudulently inducing said sale, notwithstanding the fact that the fraud is discovered after the recovery of the prior judgment.</p>

<p>Bill of Particulars — Inability to give.</p> <p>Where the defendant positively swears that he is unable to give the particulars called for, and the plaintiff does not show that defendant can give the information, a bill of particulars should not be ordered.</p>

<p>Appeal from an order made December 2, 1892, requiring the defendant, J. H. Furber Co., to furnish a bill of particulars.</p>

<p>Husband and wipe — Services rendered to wife in proceedings for NON-SUPPORT.</p> <p>A husband cannot be held liable for legal services rendered to his wife in a proceeding brought by the People against him for non-support of his wife, in which she is merely a witness for the People.</p>

<p>Reference — Compulsory—Long account.</p> <p>Plaintiff’s cause of action consisted of a bill for coal and wood sold upon fifteen different dates, amounting to $248. Defendant’s answer admitted the delivery of the coal and wood, but denied knowledge or information as to the quantity or value, or that he had promised to pay. Held, that this did not involve a long account within the meaning of the term as used in the law.</p>

<p>Appeal — Stipulation for judgment absolute.</p> <p>The fact that a provision was added to an order of the general term affirming a judgment, at a subsequent session of said court, by which it was directed that it should be of no force as against H., one of the parties in whose favor a new trial was awarded, in no respect alters the situation from what it would have been if the provision had been contained in the original order granting a new trial, and the plaintiffs cannot sever a provision in the order that on such new trial the accounting between the other parties should not bind H. from the direction for a new trial, and appeal from that alone, and in this way escape from the necessity of stipulating for judgment absolute.</p>

<p>1. Pleading — Striking out irrelevant matter — Code, § 545.</p> <p>Plaintiff commenced an action against defendant Wight, alleging the recovery of two judgments against Wight and Newell, as copartners, in New Jersey, upon service upon Newell only, and by an amended complaint aliened the original indebtedness and the recovery of judgments thereon. Wight demurred, on the ground that the judgments had been procured without service upon him, but judgment for plaintiff being ordered on the demurrer, on the ground that the allegations as to the judgments were surplusage,a motion by Wight to strike them from the complaint as surplusage was granted. Held, error, as not the proper form in which to raise the question.</p> <p>3. Same.</p> <p>The question as to whether the complaint contains a cause of action, taking in all the allegations, ought to be raised either by a demurrer, or else upon a trial of the cause, when evidence is offered, or at the close of the case, by a motion for a nonsuit, or in some other proper way.</p>

<p>Appeal — Motion to amend remittitur.</p> <p>A second motion for reargument which is in fact an appeal from the other division of this court, made over a year after the remittitur was handed down, will not he considered by this court.</p>

<p>Appeal by plaintiff from a judgment in his favor for $100.</p> <p>The action was brought to recover the sum of $1,392 and interest under a certain contract made with defendant’s firm.</p>

<p>Appeal — Supreme court rule 41.</p> <p>Where an appellant fails to serve the printed copies of the appeal papers in accordance with the provisions of rule 41, the disposition of a motion to dismiss the appeal rests entirely in the discretion of the court helow.</p>

Trial of issues in proceedings for the probate of an alleged last will and testament pursuant to the provisions of § 2547 of the Code of Civil Procedure.

<p>1. Trust — Purchase of property by trustees appointed to act for BONDHOLDERS.</p> <p>Certain persons who severally held bonds secured by a general mortgage on hotel property, on which mortgage a decree of foreclosure had been granted, entered into an agreement by .which they appointed M. & H. trustees, who were thereby authorized by their bondholders severally to ■ attend the foreclosure sale and act for them, and purchase the property, and “ to take and hold the legal title thereto, with all the rights as absolute owners, being at all times accountable for the due and proper performance of their trust.” They bought the property, which was conveyed to them as trustees. Thereafter the subscribers to that agreement entered into a second agreement ratifying the former. Held, that the legal title to the property was vested in M. & H., subject to the rights and equities of the assenting bondholders as expressed in the agreements.</p> <p>2. Same — Rights of bondholders to certificates.</p> <p>M. & H. issued certificates to the bondholders stating that they were entitled to a certain beneficial interest in the property, and that “apurchaser may receive a certificate on return of this to the trustees properly indorsed.” One R-. received such a certificate, and in writing assigned it to 0., who demanded a new certificate, and was refused. Held, that 0. was not entitled to a certificate.</p>

<p>Res adjudicata — Evidence.</p> <p>After suing for work and material under a special contract, plaintiff ' brought action for extra work which plaintiff was not bound to include in the former action, and the bill of particulars stated that the extra work was not involved in such action. Held, that plaintiff was entitled under the pleading to prove that the bill for the extra work was due and unpaid, together with any fact or circumstance showing that it was not drawn in issue and passed on in the other action.</p>

<p>False representations — Proof requisite to sustain action.</p> <p>An action for false representations cannot be maintained in the absence of proof that the representations were false at the -time they were made, and that defendant knew or had reason to believe that they were false, and intended to .deceive the plaintiff.</p>

<p>Bbokees — Commissions.</p> <p>Plaintiff was employed by defendant to sell her property, and produced a purchaser with whom she made a contract, but the sale was not carried out by reason of her inability to convey. Held, that plaintiff had performed lus duty and was entitled to his commission.</p>

<p>Appeal from judgment in favor of plaintiff, entered upon verdict.</p>

<p>Appeal from judgment in favor of plaintiffs, entered upon verdict directed by the court.</p>

<p>Appeal from judgment entered on verdict in favor- of the plaintiff.</p>

<p>Appeal from a judgment entered on verdict in favor of plaintiff.-</p>

<p>Costs — Offer of judgment — Waiver by proceeding to triad.</p> <p>A party by proceeding to trial before his time to accept an offer of judgment has expired in effect elects not- to accept the offer, and by such election waives any rights he may have had under the offer.</p>

<p>Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial.</p>

<p>jBilm and notes — Ibbegtolab indoesement.</p> <p>Defendant indorsed the note of another person before it was delivered to the payee, who thereafter indorsed and transferred it to plaintiff. Before taking it plaintiff called on defendant and inquired as to his indorse.ment and whether the note was good, and was told it would he all right when due. At maturity the note was protested. Held, sufficient to authorize a judgment against defendant as indorser.</p> <p>(Fitzsimons, J., dissents.)</p>

<p>Appeal from judgment in favor of plaintiff, entered upon verdict directed by the court, and from order denying motion for a new trial on the minutes.</p>

<p>Appeal from judgment in favor of plaintiff.</p>

Action against the heirs and executors of Emily E. Butler, deceased, to have plaintiff declared the owner of the property described in the complaint. The complaint demands judgment for specific performance of a promise made by decedent that the property should be plaintiff’s on her death, or if performance could not be decreed; for judgment against the executor for the sums advanced by her in fulfilment of such agreement or promise.

<p>Appeal from order of the Columbia county judge, vacating a warrant of attachment granted to the plaintiffs, made on motion of Charles A. Yan Deusen, a junior attaching creditor.</p>

<p>Appeal from order of surrogate refusing to open and amend a decree settling the accounts of executors.</p> <p>The,petition of John A. Bryan stated, among other things, that he is an attorney at law ; that in the year 1880 the deceased died, leaving a last will and testament which was duly admitted to probate, by which he appointed Sara N. Worthington, William L. Bull, Harry F. Worthington and Charles C. Worthington, executors and trustees, all of whom qualified; that immediately thereafter, said Harry F. Worthington retained the petitioner as attorney and counsel for himself both in his individual and representative capacities, from which time until February, 1888, when said Harry was declared a lunatic, the petitioner rendered valuable services for him, and claims a balance due to him of at least $10,000 over and above all payments made to him on account; that in February, 1885, his client, individually and as executor and trustee, for the purpose of securing the petitioner for the moneys then due and to become due, assigned, through the medium of a third person, whatever he, said Harry, might then or thereafter be entitled to receive as commissions in his capacity of such executor and trustee'; that in March,'1888, notice of such, assignment was given to the executor, Bull, and to the attorneys for Frances T. Worthington, the wife of said Harry, who was then the committee of bis person and estate. The petitioner then proceeds to detail services which he rendered for said Harry as executor, and alleges that he died insolvent in March, 1889, and that he will be remediless unless he can collect such commissions. He further alleges that, on the application of the surviving executors and on the 4th day of November, 1891, a decree was entered settling their accounts, knowledge of which was purposely kept from him; that it was adjudged in and by the decree that said Harry had taken no part in the management of the estate and was entitled to no commissións. Then follow allegations to the effect that said Harry did render services as executor, etc., and which allegations are denied by the surviving executors. The petitioner prays that the decree may be ppened and amended in respect to such commissions, and that when the right thereto shall have been fixed, they shall be paid to him, the petitioner.</p> <p>The widow of Harry F. Worthington was executrix1 of his will and was made a party to the accounting proceeding of November 4, 1891. Her husband was removed from his office of executor and trustee in February, 1888, as being wholly unfitted and incompetent, both physically and mentally, to properly perform his duties as such.</p>

<p>Appeal from order of the special term, striking out part of the answer.</p> <p>Action for the construction of the fourth paragraph of the will of Edmund B. Peaslee, which was as follows:</p> <p>Fourth. I give to my daughter, Fanny M. Peaslee, twenty thousand ($20,000) dollars in money or its equivalent in stocks, as my executors may decide, and twenty thousand ($20,000) dollars in trust, the same to revert at her death, if without issue, equally to my wife and son.</p> <p>Judgment was asked as to the latter sum; that one-half thereof be determined to vest absolutely in plaintiff, and that defendant Peaslee has a contingent remainder in the remaining $10,000, subject to being divested by the marriage of plaintiff and-her having lawful issue, and also by his death in her lifetime, and that in either case the whole vests absolutely in plaintiE</p>

Howell to pay over to said William Lang said deficiency of $54, said commission of $93.75, said costs, $421.50, and said claim of $1,445.72, or either of them. That said William Lang be paid said amounts out of any assets remaining in his hands as executor, or which may hereafter be received by him as executor.”

<p>Sale — Acceptance—New trial.</p> <p>In an action brought to recover for the purchase price of an engine it appeared that there had been no acceptance by defendant of the engine up to November 28, when defendant notified the plaintiff to remove it as "not being satisfactory, and defendant continued to use it thereafter. One of the plaint! iffs testified that on November 30th he informed JR., the secretary of defendant, that plaintiffs’ man had adjusted the valve and it would be advisable to suspend the notice of November 28 until it had been tried, and that R. consented to it. R. denied having any such interview. Reid, that this raised an issue of fact which should have been submitted to the jury or found by the court as to whether the notice of November 28 had been suspended, or whether the continued use of the engine was the consequence of an implied understanding between the parties that it was there upon trial, and as the evidence in respect to this question of fact was capable of opposing inferences, the general term had jurisdiction to grant a new trial.</p>

<p>Appeal from judgment of the supreme court, general term, first department, overruling plaintiff’s exceptions, and ordering judgment in favor of defendant.</p>

<p>1. Executors and administrators — Commissions as trustees.</p> <p>Where the executors or trustees are empowered by the will to continue the testator’s business, the payment of moneys for expenses of such business, which are repaid by the receipts, are not such a receiving and paying out as is contemplated by the statute to entitle them to commissions, but merely a reinvestment of the capital.</p> <p>2. Same — Premature withdrawal oe commissions — Interest.</p> <p>Where executors or trustees withdraw sums for commissions before they are allowed, they are liable for interest upon such sums.</p>

The contestants claimed and endeavored to prove that in September, 1884, during the lifetime of George W. Valentine, a settlement was had between himself and the two other devisees and legatees, in which all the estate which was then capable of division was divided between them after payment of the debts, and that certain real estate at Islip, L. I., afterwards sold for $20,000, and at Greenville, N. J., afterwards sold for $3,175, and a few hundred dollars in bank, were…

<p>Appeal from order confirming report of commissioners awarding nominal damages to the property owners.</p>

<p>Appeal from order of the supreme court, general term, third department, affirming orders restraining defendant fiom using, selling or disposing of partnership property, and appointing a receiver.</p>

Appeal by defendant from judgment entered in favor of the plaintiff on verdict of a jury, and from order denying new trial.

<p>This action was brought to foreclose a mechanic’s lien, for balance due on contract, and for extra work; and judgment was entered in favor of the plaintiffs for the sum of two hundred and eighty-five dollars (<§285) for extra work, upon the findings of fact and conclusions of law made by the trial justice, at an equity term of this court.</p>

<p>Appeal from judgment dismissing complaint,.</p>