Volume 57 — Jones & Spencer's New York Superior Court Reports

<p>Appeal from order enjoining the defendants during the pendency of the action.</p>

<p>Appeal from judgment, entered on verdict of jury, for plaintiff.</p>

<p>Appeal from an interlocutory judgment overruling a demurrer to the amended complaint.</p>

Appeal by plaintiff from interlocutory judgment, entered upon orders sustaining demurrers interposed by each of the defendants to the plaintiff’s complaint. Appeal from order allowing defendants appearing by different attorneys, their costs severally. Appeal from an order vacating the injunction theretofore granted in the action.

Appeal by defendants from an interlocutory judgment overruling a demurrer to the complaint entered upon an order for such interlocutory judgment.

<p> Judgment creditor, action by, to recover moneys due to judgment debtor. </p> <p>It appeared on the trial that the judgment debtor had deposited the moneys in question with the Union Trust Company ; that the account was with “William N. Griswold in trust,” and there was no designation of any kind as to the trust, nor as to any person for whose benefit the trust was created. It was an obligation on the part- of the Trust Company to the judgment debtor, personally, and would remain such in its character until legally applied to the legitimate claim of a third person. On these facts alone the plaintiff as judgment creditor would be entitled to a judgment, and the appellant was bound to establish, on the trial, affirmatively, that equitably, the moneys should be paid to her, as being the remainder of moneys that belonged to her. The trial judge found that the appellant had not established by credible witnesses that her money had been deposited, but did find that the moneys belonged to the judgment debtor, and it is not material that this finding was found as a conclusion of law. It must be sustained and upholds the judgment.</p>

<p>Appeal by plaintiff from judgment dismissing complaint.</p>

Exceptions taken by the plaintiff ordered to. be heard at general term in the first instance. Also appeal by plaintiff from order vacating order of arrest.

Appeal by defendant from judgment in favor of the plaintiff entered upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

Appeal by defendant from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

<p>Appeal by plaintiff from judgment, entered on a dismissal of the complaint -at trial term.</p>

<p>Appeal by plaintiff from judgment entered upon the dismissal of the complaint at the trial.</p>

<p>Appeal from a judgment entered in favor of defendant, upon the dismissal of the complaint,</p>

<p> Negligence—Recovery of damages sought. </p> <p>If the plaintiffs had adhered to their custom of shutting off the water on plaintiffs’ floor every night, the overflow of water complained of could not have happened. No duty was imposed upon defendants, of taking any precaution to avert the accident, which they could not have expected or foreseen, and under such circumstances there was no negligence on their part. The accident was wholly caused by the negligence of plaintiffs’ servant.</p>

<p> Written agreement in the form of a letter to reserve and pay rrmneys from a </p> <p> described fund. </p> <p>Plaintiff and defendant were respectively engaged as attorneys, in the matter of a loan of $860;000, by the New York Life Insurance Company to the firm of Pliyfe & Campbell. Tho plaintiff was the attorney for said firm, and the defendant the attorney for said company.</p> <p>On May 22d, 1886, all but #130,500 of the loan, had been paid over to said firm by defendant, and on the latter date defendant at the request of said firm of Phyfe & Campbell signed and delivered to defendant the following letter:</p> <p>“New York, May 22, 1886.</p> <p>“ W. H. Arnoux, Esq.</p> <p>Dear Sir:</p> <p>At the request of Messrs. Phyfe <fc Campbell, I write this to say that in case of your loaning them $2,500, and furnishing me with their request I will reserve for you that sum out of the next payment made them by the New York Life Ins. Co.</p> <p>Bespeclfully yours,</p> <p>H. A. Bogert.”</p> <p>On the receipt of the letter the plaintiff lent Phyfe & Campbell, $2,500, who gave him an order or request upon defendant, for the payment of that sum to plaintiff, from the next payment to be made to said firm by the said company, and the defendant had due notice of the order or request. Subsequently the whole amount of said loan was paid to said firm, and defendant did not reserve nor pay plaintiff therefrom the said $2,500, and plaintiff was not paid the same by Phyfe & Campbell.</p> <p>Held, that this was an undertaking by the defendant, to reserve, or cause to be reserved and paid to plaintiff, the amount of $2,500, the loan in question, and, failing to do so, he is liable to judgment in this action for the amount and interest, the matters set up in defence not being sufficient to change the construction which, as matter of law, must be put upon this undertaking.</p>

<p> Beal estate broker, commissions of.—When entitled to same. </p> <p>The duty the real estate broker undertakes, and the obligation he assumes as a condition to entitle him to commissions for his service, are not fulfilled until he brings the buyer and settler to an agreement. He must produce a purchaser ready and willing to enter into a contract with the employer and upon his terms. This implies the agreement of the buyer and seller, the meeting of their minds on the terms and conditions of sale produced by the agency of the broker.</p> <p>The commissions of the broker are earned and due to him from his employer when he has produced to his principal a purchaser for the property with whom the principal is satisfied, and who contracts for the purchase at an acceptable and satisfactory price.</p> <p>The words in the letter of defendant “ if sold through your agency ” must be understood and construed as meaning, if a valid agreement for the sale of the property shall be entered into between the defendant and a person or persons ready and willing to purchase, and with whom the defendant is satisfied.</p>

<p>Sailway company bonds and mortgage.—Provision for sinking fund therein . to provide for payment or cessation of interest.—Legal construction, &c.</p> <p>A bond issued by the defendant and held and owned by plaintiff contains a provision for its payment through a sinking fund, or the cessation of interest, as follows :—“ And the said company hereby covenants and agrees to provide, according to the terms and conditions of the said mortgage, a sinking fund, as follows : The sum of $ 10,000 shall be so provided and paid on the fifteenth day of November in each year, commencing on the fifteenth day of November, 1877; also, in addition thereto, such further sum in each year as shall be equal to the amount of interest on the retired bonds until the whole amount of the said bonds shall be paid and extinguished. The numbers of the bonds to be paid in each year, by the amount of the said sinking fund, shall be determined by drawings by lot at the agency of the company in the city of New York by a notary public, to be appointed by the said trustee, in the month of August, in the year eighteen hundred and seventy-seven, and in the same month in each year thereafter; and the company shall cause a notice of the numbers drawn to be posted in the office of the agent of the company in the city of New York at which the coupons of the said bonds are payable on or before the first day of September after drawing, and on the following fifteenth day of November, the principal of said bonds so drawn shall be payable, at the option of the holders, at the office and in the manner aforesaid, upon the surrender of the bonds drawn, with all the coupons thereto belonging ; and after the said fifteenth day of November, the interest upon the bonds so drawn shall cease.”</p> <p>In the drawing had in 1887, the plaintiff’s bond, to which were attached the interest coupons which this action seeks to recover, was drawn. The plaintiff refused to present his bond for payment when notified that the money to pay the same had been provided by defendant under this provision, claiming that the defendant’s right to pay and retire his bond was dependent upon his (plaintiff’s) option, and if he did not avail himself of the option the bond could not be redeemed, and plaintiff’s right to retain its possession and to demand and receive interest on the amount of the same (by and through the interest coupons attached) continued unimpaired.</p> <p>Held, that the option given to the plaintiff, by the terms of said bond, applied only to his right to retain possession of his bond and does not refer to the subsequent provision for the payment of interest, which stands alone and positive and imperative, and after the fifteenth day of November, 1887, the interest on the bond ceased, and no interest could be recovered thereafter by the plaintiff, although the bond had not been retired and paid, and still continued in plaintiff’s possession. By the said drawing and notice, the bond and interest became due in November, 1887, and interest then ceased, and coupons for subsequent interest were invalid.</p>

<p> Negligence.—Action for damages caused thereby. </p> <p>In regard to the question raised as to whether the defendants were obliged to build a shield or screen under their structure for the protection of persons in the street below from falling matter. Held, on appeal, that the following charge of the court below to the jury, contained all that the defendants had a right to require, and conveyed to the jury the correct rule of law on the question;—“Although originally the road was well built, yet if in the course of its operation the defendants found, or by the exercise of reasonable care and diligence should have found, that a certain way of operating the road inflicted certain injuries upon the public, it became their duly to take all reasonable measures to guard against such injurious consequences, even if that involved the making of additional fixtures not contemplated from the beginning, as long as their adoption did not involve a radical change in the general construction of the road. But they were not bound as against persons who were not passengers to add to the construction and equipment of their road and its cars, the best and most select safeguards which human skill and ingenuity from time to time have invented and brought into use to prevent accidents. Such rule applies only to passengers. As against all other persons who had a right to use the streets in common with them, and the plaintiff comes within this rule, they discharged their duty if they adopted that which, under all the circumstances, and in view of the peculiar structure of the road, inclusive of the danger to be apprehended, was reasonably adequate and safe. If they thus discharged their duty under all the circumstances, they are not to be held liable solely by reason of the fact that at the time and place of the accident they had no shield or screen under the structure.”</p>

<p>Appeal from a judgment entered in favor of plaintiff against the defendant.</p>

Exceptions of plaintiff ordered to be heard in the first instance at general term, a verdict having been directed for defendants.

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

<p> Lease of city real estate executed by comptroller, valid, as also bond executed by sureties for its performance. </p> <p>A lease of real estate, executed in behalf of the city of New York by its comptroller in accordance with resolution of the “ commissioners of the Sinking Fund,” is not void. Even if deemed informal it could have been cured on demand of either party, but if not objected to within reasonable time after execution, the parties thereto are estopped by their own laches from complaint or objection on the ground of informality.</p> <p>The current of judicial authority favors giving effect to corporate acts, even where formalities prescribed by law have been omitted, provided the manifest lawful intention has been carried into effect, and there is no element of fraud in the transaction, and no violation of justice or equity. This principle of law is held to apply with special force to the case at bar, where the contract in dispute has ceased to be merely executory, and has, in fact, been in part carried out, and where the party dealing with the corporation, having enjoyed the advantages of the contract, seeks to escape from the performance of obligations on the ground of a defect in formal execution.</p> <p>A bond executed to the corporation of the city of New York by sureties to secure the performance of such a lease by the lessee is valid, notwithstanding it was not executed by the lessee. Being joint and several, it binds all -who execute it, especially if the intention of the sureties sufficiently appears.</p>

<p>Appeal from an order vacating an order of attachment.</p>

<p>Appeal by defendant from a judgment and from the order directing such judgment to be entered.</p>

Appeal by plaintiff from order, interlocutory judgment and final judgment sustaining defendant’s demurrer to the complaint.

Appeal by plaintiff from judgment entered in favor of the defendant upon the verdict of a jury, and from order denying plaintiff’s motion for a new trial.

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

This is an appeal from a judgment entered upon a verdict in favor of the plaintiffs against the defendant, and from an order denying the defendant’s motion for a new trial. The action was brought to recover from the defendant a certain sum of money which the plaintiffs claimed the defendant had received to the use of plaintiffs.

Appeal by plaintiff from judgment entered on verdict in his favor, and from order denying a motion for a new trial, on the ground that the damages given by the verdict were sufficient. Section 99,-Code Civil Procedure. The facts sufficiently appear in the opinion and head notes.

Appeal by defendants from judgment entered on report of referee. The facts sufficiently appear in the opinion and the head notes.

<p> Banking.—Overdraft, when cause of action as for, does not arise.—Opening an account by a treasurer of a corporation in his own name, with the addition “ as Treasurer,” effect of.—Ratification, powers of trustees andofficers acting as individuals in respect thereof. </p> <p>Where a bank discounts for one of its depositors a note of a third party endorsed by such depositor, and credits him with the amount of the note, less the discount, in his account with the bank, and the depositor checks out the entire sum so placed to his credit, and thereafter the note, which was discounted, was not paid at its maturity, and was protested for non-payment, an action will not lie against the depositor in favor of the bank for the amount so credited, based on the theory that by reason of such facts there was an over-draft by the depositor to the extent of the amount so deposited. An account opened with a bank by a treasurer of a corporation in his individual name, with the addition ‘‘ as Treasurer,” there being no proof that such designation was with the knowledge of the corporation, or by its - direction, or that it had been ratified, is the individual account of the person who opened it, and not the account of the corporation; and the fact that creditors of the corporation were paid by the checks of the person who opened the account signing them “ as Treasurer ” will not make the account that of the corporation.</p> <p>Neither one nor several of the trustees or officers of a corporation can, as individuals, ratify an act done without corporate authority.</p>

Appeal by plaintiff from an order requiring him to give an additional undertaking as security for costs. Note.—It will be seen from the statement of the case, that the amounts, deposited by plaintiff under the first and second orders, were paid to the defendants by the clerk, pursuant to the order of the court.

<p> Negligence, death caused by.—Action to recover damages, etc.—Practice as to stating exceptions. </p> <p>The first objection of the appellant is, that there was no proof that the death was caused by the injury received through the negligence alleged. The immediate cause of the death was peritonitis. Plaintiff's medical witnesses testified that peritonitis may be caused in seven different ways, and there was no proof but that several of these causes existed in the case that could not be attributed to defendant’s case, but there was proof, however, that a certain cause actually existed which the jury might competently find ensued from the negligence.</p> <p>Held, that the rule to be applied in such a case is that, there being a sufficient, cause shown, causes that were not made to appear did not exist.</p> <p>Held, also, that it is irregular to make an exception by inserting in the case that ‘‘defendant excepts to foregoing italicized portion of the charge.” An exception must be taken at the trial, and at that time the charge is not in print, and no part of it can be italicized. This exception can be entertained only by supposing that on the trial there was an exception to a part of the charge represented by the italics in the printed case, and then proceeding to consider the supposed exception.</p>

<p>Appeal by plaintiff from judgment dismissing the complaint, entered upon direction at trial term.</p>

<p> Equitable action.—Injunction.—Measure of damages in. </p> <p>Each of the parties to this action was the owner of lots and buildings upon them in a block in the city of New York. The original owner of the block sold and conveyed it to different persons in various portions. In each of the original conveyances was a covenant by the grantee for himself and his assigns, that neither he nor they would erect, suffer or permit upon the premises conveyed, any tenement house, and it was agreed in the said conveyances that this covenant should run with the land. The parties to this action held title to their respective premises under some of those conveyances. The defendant built upon his lot a tenement house, and had maintained it as such, to the time of the commencement of this action. Held, that under the facts found by the trial judge, the plaintiff was entitled to an injunction restraining the defendant from maintaining the tenement house he had erected; and the plaintiff was also entitled to a judgment for such damages as he had suffered from the defendant’s violation of the covenant in past time.</p> <p>By the judgment in this action the plaintiff recovered as damages the difference in value of his house as it was affected by the tenement house, and the value it would have possessed if the lot on which the tenement house was built was a vacant lot. Held, that this rule of damages was erroneous. He could not have been damaged to such an amount. Also, that the measure of damages in an equitable action of this kind, is not different from the measure in a legal action for damages, and such damages as might be recovered in a legal action brought for the damages, may be recovered in an equitable action for an injunction and damages, because equity will give full relief but will not increase the amount that might be recovered by law.</p> <p>On the question, whether damages to the plaintiff’s premises in the future and for all time could be assessed in this action, Held, that they could not be so assessed.</p>

Appeal by each party from the judgment entered for plaintiff, upon the verdict directed for plaintiff, for the sum of $39,34.

<p>Appeal by plaintiff from a judgment dismissing the complaint, entered on the direction of a judge, made at trial term before a jury.</p>

The complaint alleged that, about November 1, 1880, plaintiff agreed to purchase of defendants, and defendants agreed to sell and deliver to plaintiff, one thousand shares of a certain stock, for the agreed price of $4,000, payable in four months, for which sum of $4,000, and interest plaintiff gave to defendants his promissory note ; that when that note became due, plaintiff paid to defendants $1,000, on account of principal and the interest on $4,000, to that date, and…

Appeal by defendant from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial. The facts sufficiently appear in the opinion.

<p>Appeal by plaintiff from an order and interlocutory judgment, overruling plaintiff’s demurrer to defendant’s answer, and directing final judgment for defendant, unless the plaintiff shall withdraw the demurrer and pay costs, &c.</p> <p>The facts sufficiently appear in the opinion.</p> <p>The following decision was rendered at special term :—</p> <p>“ Dugro, J.—The plaintiff to invoke the action of a court °of equity in his behalf states in his complaint what he considers to be the material allegations which, if true, entitles him to the relief he seeks. The answer in denying that the appraisers were misled and that Philbrook had any interest which made the suit mentioned in the complaint valuable at the time of the assignment for the benefit of creditors, and in denying the alleged conspiracy, puts in issue what the plaintiff must of necessity consider to be the basis of his action. I have assumed the sufficiency of the complaint, but of it have grave, doubt. The demurrer must be overruled.”</p>

Appeal by plaintiff from judgment entered upon a dismissal of the complaint at the trial. In addition to the facts stated in the opinion, it appeared on the trial that the plaintiff was of an age to appreciate and to have full knowledge of the danger of permitting her hand to be caught between the moving machinery, and was competent to perform the duty required of her.

The issues in this case were tried before the court and a jury November 7,1888, and a verdict rendered in favor of the defendant.

Appeal by defendant from judgment entered in favor of the plaintiffs upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

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

This is an appeal from an order made at special term vacating a preliminary injunction which had been granted at special term. The facts sufficiently appear in the opinion.

Appeal by plaintiff from judgment dismissing the complaint upon the merits, upon a direction of the court at trial term, that the jury find a verdict for defendant. This action is brought on a promissory note made by Joseph Husson, the defendant, dated December 11, 1878, for $750, and payable to the order of Henry S: Cohu five months after date.

This is an appeal from a judgment, entered on the verdict of a jury, and from an order denying a motion “ to set aside the verdict and grant a new trial on the exceptions taken, because the verdict was for excessive damages, because the verdict was contrary to the evidence, and because the verdict was contrary to law.” The action was brought to recover damages for injuries which the plaintiffs allege they have sustained by reason of the construction and operation of the…

<p> Evidence, admission of improper, when not cause for reversal.—Expert opinions, admissibility of evidence bearing on their value as testimony. </p> <p>Although in an action brought to obtain a judgment for a permanent injunction testimony upon that issue adduced by the plaintiffs is improperly admitted, yet if enough other testimony appears which, as matter of law, supports the judgment for an injunction, that judgment will not be reversed.</p> <p>Where experts have given evidence as to their opinions of the value of certain real estate, the testimony of owners of adjoining real estate, although not experts, as it is called, as to the value placed by them on their respective parcels, is competent.</p> <p>Where the judgment below adjudges that the defendants be perpetually enjoined from maintaining and operating their railroad in front of plaintiffs’ premises, and adjudges that the structure be removed, and then adjudges that the judgment, in so far as it enjoins and restrains the defendants, shall not be operative until the expiration of ninety days from service, and then adjudges that if defendants shall, within eighty days from service, pay to plaintiffs a certain sum for damages to plaintiffs’ premises, then the judgment, in so far as it enjoins and restrains the defendants, shall not be operative and take effect; the whole judgment should not be set aside because the judge below, in ascertaining the amount so to be paid by defendants, received evidence as to what values owners of premises on the same street attached to their own property, or that of others, even if such reception were erroneous.</p> <p>The points of counsel are voluminous and exhaustive. They are too lengthy to be reported in full; and cannot well be condensed with justice to counsel and benefit to the bar. They can be referred to in the library of the court. Reporters.</p>

<p> Finding of fact, inconsistent with conclusions of law and judgment, effect of on appeal.—Example of inconsistent finding. </p> <p>Where a finding of fact is in irreconcilable conflict with the conclusions of law and the judgment based thereon, the judgment must be reversed on appeal; this although there are other findings which fully sustain the conclusions of law and the judgment.</p> <p>So held where the whole theory of the action was that a certain use of a certain street was an excessive and inconsistent street use, and that the street had not been kept open in like manner as the other public streets in the city of New York are and of right ought to be; and the trial judge, among other findings, found, that the street, from the time of its opening, continuously had been and then was appropriated and kept open for a public avenue, highway and thoroughfare in the city of New York, in like manner as the other public streets in the said city are and of right ought to be; but, nevertheless, rendered judgment for the plaintiff.</p>

This action is brought to foreclose a mortgage, dated July 1, 1873; made by the defendant railway company. Held: that a judgment of foreclosure and sale which had been entered in January, 1855, was properly amended nunc pro tunc in 1864. The question, said the court, was one addressed to the discretion of the court below. In Hatch v. Central National Bank, 78 IV.

<p>Appeal from a judgment in favor of the defendants dismissing the complaint upon the merits, with costs', and also from an order vacating and setting aside the verdict of a jury in favor of the plaintiff, and directing judgment dismissing the complaint. The facts appear in the opinion of the court.</p>

<p> Terms used in contracts; evidence as to trade meaning admissible—JRebuttal by witnesses whose knowledge of the trade commenced subsequent to the contract, when admissible—Conditions precedent, relevant to the issue. </p> <p>Evidence that the word “orders ” in a contract whereby one is employed as a canvasser to obtain orders for serial publications at a compensation of a specified sum “for each and every order obtained” hada certain meaning in the trade of book canvassing, is admissible.</p> <p>The defendant in an action brought by the canvasser under such a contract to recover the specified sums for orders obtained by him, having called witnesses who testified that the words according to the usage and custom of the trade meant each order that proved good, by which was meant, that the orders should be bona fide signatures unconditionally for the complete work, and should prove good by the delivery of from one-quarter to one-third of the whole number of parts to, and the payment therefor by the subscribers, that such was the custom now ; and the custom in 1877 (when that contract was made) was the same as it is now. The plaintiff thereafter called witnesses who had been familiar with the business since 1878, or 1879, but not before, and asked, “ Do you know the customs and trade meanings in that business now ? ” The question was objected to and the objection was sustained. JBJeld error, for which the judgment should be reversed.</p> <p>Under the custom and trade meaning as testified to on behalf of defendants the Court held that proper deliveries to the subscribers was a condition precedent to payment by them, and therefore it was relevant to the issue to investigate whether or not the defendants had made the proper deliveries,</p>

Appeal by defendant from judgment entered upon verdict of jury, and from order denying motion for new trial, made upon the minutes.

<p>Appeal from judgment entered upon findings made at special term.</p>

<p>Appeal from judgment entered upon findings at special term.</p>

* The locus in quo is shown on the diagram below : Extract from map entitled “ Map of Fairmount, Upper Morrisania, County of Westchester and State of New York, made by Andrew Findlay, surveyor, dated Westchester, June 26, 1850, and filed in the office of the Clerk of the County of Westchester at White Plains.” On October 24, 1867, Christopher Robley was the owner of the plot of ground bounded on above diagram by the lines D. C. E. and F. On that day he and his wife conveyed…

Appeal by judgment creditor from an order vacating an order for the examination of a third person in proceedings supplementary to execution. The facts sufficiently appear in the opinion.

Appeal by defendants from a judgment entered upon a verdict directed against them at trial term.. A judgment of foreclosure and sale having been rendered in an action pending between Thomas MacKellar, the plaintiff herein, and George W. Rogers, impleaded, with others, the defendants in order to enable Rogers to stay proceedings on the judgment pending an appeal to the general term, executed the undertaking on which this action is brought.

The action was brought, as appears by the original complaint, to, among other things, establish a lien in favor of the plaintiff upon the share of the… Held: in substance, among other things, that it had no jurisdiction as against the New York Iron Mine to decree it to declare and pay such dividends as might appear on an accounting to be proper, and that the complaint did not state a cause of action as against the New York Iron Mine. (See 56 N. Y. Super. Ct. Rep. 236).

<p> Inconsistent findings of fact or conclusions of law, effect of. </p> <p>In the case at bar the court found as a fact, that the construction and maintenance of the elevated railroad by defendants in front of the premises of plaintiff, has diminished the rental value of plaintiff’s premises, etc., etc. That the damages to the plaintiff for such diminution was the sum of $5,198. Held, onappeal, that this finding is sustained by the evidence, and that plaintiff is entitled to judgment against defendants for that sum.</p> <p>The court also found, at the request of defendant, as follows : “ Thirty-first The evidence does not establish any definite amount of damage for which any judgment can be rendered.” The defendants claimed that the latter finding is inconsistent with the former, and for that reason the judgment should be reversed. Held, that this 31st finding does not state a fact, and by section 1022 of the Code the decision of the court must state the facts found and the conclusions of law separately. As to what the evidence does or does not establish is a conclusion of law. The fact'as to the damage, and the amount of same, was found, and if the said 31st finding is of any effect at all, it is as a conclusion of law, and is clearly erroneous and cannot affect or overrule the correct conclusion of law afterwards stated, that plaintiff was entitled to judgment for the amount of damage found as a fact by the court. A judgment should not be reversed because of inconsistent conclusions of law when the judgment is in accordance with the correct conclusion of law upon the facts found.</p>

<p>Appeal from judgment entered upon the decision of the court at special term.</p>

<p>Appeal from judgment entered upon the decision of the court at special term.</p>

<p>Appeal from an order of the court at special term setting aside the trial of this action and substituting Mary Senft as plaintiff therein in the place and stead of Christian Senft, and prescribing terms and conditions for such substitution.</p>

At the close of the evidence, the judge charged:—■ “I charge you that the defendant is not liable for the services rendered to those children except as she specially contracted to pay for them, if she did so contract, with this physician, the plaintiff. “ If you find that she did make a contract with the physician that she would pay for the services, then she is liable, and yon can find for the physician such an amount as you think would be a fair and reasonable compensation…

Exceptions taken by the plaintiff to the dismissal of the complaint ordered to be heard in the first instance at the general term.

<p> Evidence—Testimony of experts as to value of real estate in action for an injunction and damages because of the construction and maintenance of the elevated railroad of defendants in front of plaintiffs’ premises. </p> <p>One of the real estate expert witnesses of plaintiffs was asked by plaintiffs’ counsel on the trial to give the rental value of the premises with and without the elevated railroad, for the years 1883 to 1888, both inclusive. Counsel for defendants objected to the question as incompetent, irrelevant and immaterial, and not within the issues of the action and a proper method of proof. The court overruled the objection, and counsel for defendants excepted, and the witness answered the question fully and in detail.</p> <p>Held, on appeal, That the question as to the value of the premises at the time was clearly competent. The attention of the court was not called to the objection now urged, that the portion of the question that required the witness to give his opinion as to the rental value of the premises without the elevated railroad was incompetent, and no motion was made to strike out any portion of the answer of witness after it was given, and considerable testimony was subsequently given on the same subject by both plaintiffs and defendants without objection. Under these circumstances the objection to the question in the form it was taken was unavailing, and the</p> <p>■ ruling of the court thereupon sustained.</p>

<p> Action for injunction and damages against defendants for constructing and operating its railroad in front of plaintiffs' premises—Objections to opinion of real estate expert, what should be the form of same to be covered by the McGean Case. </p> <p>The following questions were put to a real estate expert witness on the trial; “What, in your opinion, would, be the rental value of those premises, No. 97 Pearl street, to-day, if there were no elevated railroad in front of them ; and what, in your opinion, would be the value of those premises if .there were no elevated railroad in front of them ? ” These questions were objected to on the grounds that they were hypothetical; that the witness was not competent to give an opinion, and also that they were immaterial and incompetent; and the objections were overruled by the court, and counsel for defendants excepted; and the answers of the witness were taken.</p> <p>Held, on appeal, that prior to the decision in the McGean Case, in the court of appeals, it was held under many decisions that such questions were admissible, and that the opinion of a witness, who has seen the premises in question and is acquainted with similar property and things, is not incompetent for submission to a court or jury. In the McGean Case, the court of appeals held, that objections like those taken in this case to like questions, did not apprise the court that defendants meant to object on the ground that the questions called for what the judge was to determine upon other testimony in the case. The questions in the ease at bar were not objectionable, therefore, on any ground taken at the trial.*</p>

<p>Appeal from judgment entered upon findings, etc., at special term.</p> <p>The questions involved and the facts in the case sufficiently appear from the opinions.</p>

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

Exceptions taken by the plaintiffs to the dismissal of the complaint at the trial term, ordered to be heard in the first instance at general term.

<p> Contract for the payment or vacation of an assessment—Deposit as security or indemnity—Forfeiture not favored in the law. </p> <p>The four different papers executed by Bronson, the assignor of the plaintiffs, namely, (1.) The contract of sale, (2.) The deed to the defendant, (3.) Agreement between Bronson and the N. T. Life Ins. Co. for the deposit of the money as security, and (4.) The agreement in regard to said money between Bronson and defendant, must be construed together in order to ascertain what the contract was between Bronson and the defendant; and when so construed, clearly establish a contract of indemnity and not a contract for the absolute forfeiture of the whole deposit, in excess of what was necessary to pay the assessment, in case Bronson failed to pay or to procure its vacation within one year.</p> <p>A forfeiture is not favored in the law, and it is a rule in the construction of contracts, under which forfeiture is claimed, that a conclusion that forfeiture was intended should be avoided if the facts and circumstance justify such a conclusion.</p> <p>In the case at bar, it clearly appears by the contract that ample security and indemnity were sought in the premises, and no forfeiture intended.</p>

<p>Appeal from judgment entered upon the decision of a judge at special term.</p>

<p> Costs, extra allowance of, discretion of the Court in regard to allowance. </p> <p>The plaintiffs moved for an extra allowance in addition to costs, upon the amount of past damages and the amount of damages to the fee value, if the defendants paid the same to avoid the injunction granted, and the court made an order giving them five per cent on the amount of past damages as found, and denied the motion otherwise, and plaintiffs appealed from so much of the order as denied a part of their motion.</p> <p>Held, That as an order granting or refusing an extra allowance rests largely in the discretion of the trial judge, if it is to be reviewed at all, the whole of the order should be presented for review, so that the exercise of discretion can be reviewed upon all the facts that bear upon it. The determination of the court below as to the amount of allowance to be granted, was within the discretion of the court.</p>

<p> Evidence—Disclosure of inf ormation acquiredby witness in attendance upon his patient in a professional capacity, employment in that capacity must </p> <p> t appear. </p> <p>In order to enforce the prohibition against disclosure contemplated by the statute, it must clearly appear that the witness was attending the party in a professional capacity, and the information acquired by him, and as to which he was called to testify, was acquired in that attendance, and was necessary to enable him to act in that capacity. The burden of proof' that such prohibition exists, rests upon the party claiming that such prohibition shall be enforced.</p> <p>In the case at bar the exclusion of the testimony held to have been error.</p>

<p>Appeal from judgment at special term.</p>

<p> Trespass—Can executors and trustees recover damages for injuries to real estate premises occurring after the death of their testator, and while tlie said premises were occupied by a tenant under a lease executed by the testator. </p> <p>Richard Mortimer, the testator of the plaintiffs, died May 30, 1882. At the time of his death the premises in question were in possession of one Gregg under a lease, executed by the testator, for a term of five years from May 1, 1880, to May 1, 1885, and continued in such possession until the expiration of said lease, paying the rent to the plaintiffs, as executors, after the death of their testator, to May 1, 1885, when plaintiffs took possession and leased the premises for five years to another tenant. This action was commenced July 28, 1886, to recover damages occasioned to said property, from the death of their testator, by the defendant’s railroads.</p> <p>At the trial the jury, under the direction of the court, found in favor of the plaintiffs in two separate amounts: (1.) For damages from June 1, 1882, to May 1, 1885, (during the unexpired term of the lease to Gregg) for $14,653.80. (2.) For damages from May 1, 1885, to July 28, 1886, for $5,875.20. The defendant moved to set aside the verdict for $14,653.80, which motion was granted by the court, “ on the ground that no damages are recoverable in this action for any injury to the rental value of the premises in' question from the death of the testator Mortimer, May 31, 1882, when the lease, which was outstanding at the death of the testator, expired. From that order setting aside the verdict for $14,653.80 this appeal was taken. Held on appeal, that the trespass committed by the defendant from June 1, 1882, to May 1, 1885, was an injury to the inheritance under section 1665 of the Code, which provides that “a person seized of an estate in remainder or reversion, may maintain an action founded upon an injury done to the inheritance, notwithstanding any intervening estate for life or for years.’ The plaintiffs were entitled to ecover for the damages caused by the trespass.</p>

<p>Appeal from a judgment entered upon the decision of the court at special term.</p>

<p>Appeal by defendant from an order vacating an order for the examination of plaintiff before answer.</p>

<p>Appeal from judgment dismissing complaint, entered upon findings made at special term.</p>

<p> Receiver appointedm supplementary proceedings—Jurisdictional facts should appear from 'the order or the papers on which it was granted—Motion for removal of .receiver. </p> <p>The order that the motion below sought to set aside was made in 1862. The principal ground for its vacation was that it did not appear on the face of the order that the judge granting the same had jurisdiction in the premises. That it did not recite the existence of facts necessary to jurisdiction. The moving papers did not set out the whole of the record of the supplementary proceedings on which the order was made. The order alone was set out, but, in some portion of the moving and opposing papers, it did appear that the necessary jurisdictional facts existed at the time of the entry of the order, and that the whole of the record at the time disclosed that the necessary facts existed and were proper. The power of the judge was derived from Section 298 of the Code.</p> <p>Held, that the judge having power and- jurisdiction to appoint a receiver, all other directions given in the order as to bond and matters of a like kind, were to be reviewed if they were erroneous by appeal, or, if matters of irregularity, by motion. The appellant has been unsuccessful in his attacks upon the order by appeals, and the irregularity as to the bond has been cured by the order now appealed from, which should be affirmed. Held, also, that it is not a substantial objection to the order that “ The N. Y. Superior Court” was named instead of the correct name, 11 The Superior Court of the city and county of New York.” The words used sufficiently identified the court.</p> <p>By the Code of Procedure, notice to the judgment creditor was not a condition precedent to the exercise of the power to appoint a receiver. If it be assumed that the receiver is not a resident of the state, and for that reason should be removed, there should be no removal without the same be accompanied by a substitution of a qualified receiver in his place.</p>

Appeal by plaintiff from order denying motion for continuance of temporary injunction, and vacating the same. The following opinion was delivered by the court at special term: “ Ingraham, J.—By the permit of September 7, 1888, the board of electrical control authorized the plaintiff to string four wires on existing poles in Sixth avenue from 18th street to Carmine street. At the time the permit was granted the Metropolitan Tel.

This action is brought to recover a certain sum of money alleged to be due the plaintiff, as assignee of one John Brady, under a contract made between said John Brady and the city of New York for regulating and grading Ninety-fifth street. Previous to the commencement of this action twp judgments had been recovered against this defendant upon the same contract, one by John Brady and the other by Bernard Brady, his assignee.

<p> Consignees to sell on commissions, as to right of to charge against consignors a sum paid by them to compromise a suit brought against them for undervaluation of the goods—Error producing no injury, not cause for reversal as xohen the appellants were erroneously allowed (to which no exception was taken) a certain sum which was in excess of the sums claimed to have been erroneously disallowed them. </p>

<p> Order cannot he vacated on motion of a party on the ground that it is erroneous—The general term on an appeal from an order denying such amotion cannot inquire whether there was error in the original order. ■ </p>

<p>Appeal from order referring the issues and from order denying defendants’ motion to vacate the order of reference.</p>

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

<p>Appeal from judgment entered on the verdict of the jury.</p>

<p>Motion by appellant for a re-argument, on the ground that the Court mistook a fact.</p>

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

<p>Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury and from an order denying a motion made upon the minutes “ to set aside the verdict and grant a new trial upon the exceptions taken on the trial, and because the verdict is for excessive damages and is contrary to the evidence, and is contrary to law.”</p>

<p>Appeal by defendant from judgment entered on report of referee.</p>

, by striking out from that order the words “ ten dollars ” leaving in lieu thereof a blank space for the insertion after taxation by the clerk of the amount of statutory costs allowed by the code on a motion for a new trial on a case.