Volume 71 — New York Supplement

Action by Emma J. Sheldon against the Fidelity Trust & Guaranty Company of Buffalo. From an order denying a motion for the framing of issues of fact for a trial by jury, plaintiff appeals. Reversed.

Action by Wilbert S. Birdsall against John P. Wheeler and others. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Petition by Bose Leroy for an order directing that the decree of settlement of the estate of John C. Miles, deceased, heretofore made, be opened, and that the administrators be directed to pay her claim. From a decree of the surrogate’s court (68 N. Y. Supp. 368) in favor of petitioner, the administrators, Lucina Miles and Andrew Oarmer, appeal. Beversed.

<p>Mandamus by the people, on the relation of one Goldstein, against Herman Bolte, as justice of the municipal court of the city of New York. Denied.</p>

<p>Mandamus by the people, on the relation of one O’Brien, against Herman Bolte, as justice of the municipal court of the city of New York, to compel removal of a cause. Denied.</p>

<p>Motion for Directed Verdict—Effect—Discharge of Jury.</p> <p>Where at the close of the evidence each party moves for the direction of a verdict, the court may discharge the jury, and either decide the case at the trial, or direct that briefs be submitted and arguments heard later, as though the trial had been without a jury.</p>

<p>On reargument. Affirmed.</p> <p>For former opinion, see 68 N. Y. S. 407.</p>

<p>Appeal—Review op Referee’s Decision—Findings.</p> <p>Where a referee’s decisions in two cases between the same parties are filed without stating separately either the facts found or the conclusions of law, on review by the appellate court as authorized by Code Civ. Proc. § 1022, the court, being required to assume that the referee found every fact and conclusion of law necessary to sustain his decision which the evidence warrants, will not look to the opinion to determine the reasoning of the referee, where the opinion is not made a part of the decision, nor examine the record in one case to see whether the findings necessary to sustain the judgment in such case are consistent with the findings in the other.</p>

Application by J. Spencer Hosford and another, as executors of the estate of Barent Van Alstyne, deceased, for the settlement of their accounts. From a decree settling the accounts, Henry Snyder ■and others appeal. Modified and affirmed.

<p>Actions—Change of Venue—Convenience of Witnesses.</p> <p>Where, on a motion for change of venue for convenience of witnesses, defendant’s affidavits alleged that 25 witnesses residing in another county were necessary to prove certain facts of defense, but did not state what facts any witness could testify to, and plaintiff alleged that 44 persons residing in the county where the action was pending were necessary witnesses, the order denying the motion will not be reversed.</p>

<p>Mechanic’s Lien—Statement—Excessive.</p> <p>Where a mechanic’s lien, as filed, claimed' In detail the furnishing of sand for an amount of brick greater than used in the building, the lienor having ceased delivering sand before completion thereof, and it was ■ concededly for more than double the amount due plaintiff, and no explanation was given, it was properly dismissed.</p>

Proceeding by the people, on the relation of A. H. Goetting, commissioner of public charities, against John Schnitzer for the abandonment of his wife, and to compel her support by the defendant. From a judgment of conviction in the magistrate’s court, defendant appeals. Affirmed. The defendant, John Schnitzer, brought action in the supreme court for a separation.

Action by Pedro A. Merino, as surviving partner of Pedro N. Merino & Sons, against Leontine G. Munoz, as executor, etc.,, of Jose M. Munoz, deceased. From an order granting plaintiff’s motion to take testimony on commission in England, defendant appeals. Modified. Plaintiff, who resided in London, England, applied for commission to take the testimony of certain witnesses in London.

<p>1. Accounting—Pledge op Stock—Pledge by Pledgee—Sale—Surplus— Division.</p> <p>Several customers o£ a brokerage firm deposited certificates of stock with the firm as security for their several indebtedness, and thereafter the brokers commingled the same, and pledged them for their own debt. Subsequently they made a general assignment, and those having the certificates sold them, and, after satisfying the brokers’ debt from the proceeds, a surplus remained. Held, in a suit for an accounting by one of the customers, that the fund should be divided in the proportion to the interest of each customer after deducting his indebtedness to the brokers.</p> <p>2. Same—Tender.</p> <p>A tender by any of the customers to the brokers after the pledge hi' the brokers could not eliminate the lien of the brokers as a factor in the accouht as against such customer.</p> <p>3. Costs.</p> <p>The costs of the plaintiff should be paid out of the fund, inasmuch as a disproportionate part of the burden of conducting- such action falls, on plaintiff, while, in a sense, it is for the common advantage of all.</p> <p>4. Same.</p> <p>Tliose with whom the brokers pledged the stock having been paid in full at the expense of the customers, the costs of the former should not be payable out of the fund.</p> <p>Action for an accounting by William Van Woert against George M. Olmstead and others. Findings of referee.</p>

<p>Appeal from, special term.</p> <p>Action by Charles Smith against the Hew York Cooperage Company, Limited. Demurrer to answer sustained, and defendant’s demurrer to reply of plaintiff overruled.</p> <p>The following is the opinion at special term (O’DWYER, J.):</p> <p>“Demurrer by the plaintiff to the first and second separate defenses set forth in defendant’s answer, upon the ground that they are insufficient in law upon the face thereof, and demurrer by the defendant to the separate defense set forth in the amended reply of the plaintiff to the counterclaim alleged in the defendant’s answer, upon the ground that the same is insufficient in law upon the face thereof. The action is brought by the plaintiff, a resident of the state of New York, as assignee of one Orrin R. Whitney, to recover damages for the breach of a contract for employment for the period of one year by the defendant, a foreign corporation, organized under the laws of the state of New Jersey. The first defense contained in the answer alleges that the plaintiff is not the real party In interest, and that his assignor is a nonresident of the state of New York, and the second defense alleges that the plaintiff is not the real party in interest, and that there is another action pending against this defendant, brought by one Roach as assignee of said Orrin R. Whitney. The complaint alleges in the eighth paragraph ‘that prior to the commencement of this action the said Orrin R. Whitney, for value, duly sold and assigned to the plaintiff as aforesaid the claim or demand against the defendant for damages for breach by it of the aforesaid contract of employment,’ and by proper denial this allegation is put in issue. The allegations that the plaintiff is not the real party in interest do not amount to separate defenses, inasmuch as the legal title to the claim is in the plaintiff, and under the denial of the assignment thereof the ownership of the claim can be fully investigated. Brown v. Powers, 53 App. Div. 251, 65 N. Y. Supp. 733. With respect to the. allegation in the first defense, that the plaintiff’s assignor is a nonresident of the state, that allegation does not amount to a defense.</p> <p>“If the plaintiff has the legal title to the claim in suit, the fact that the claim was assigned to him for the sole purpose of conferring jurisdiction upon this court as a more convenient way to get the relief desired than would be possible In the courts of the defendant’s residence is no bar to the plaintiff’s action. Assuming that the plaintiff’s assignor could not maintain this action in the courts of this state, the plaintiff, a resident, may nevertheless do so. Lindheim v. Sitt, 33 Misc. Rep. 62, 68 N. Y. Supp. 145; Bank v. Townley, 159 N. Y. 490, 54 N. E. 74. The statement In the second defense, that there is another action pending by one Roach, as assignee, to recover for the services actually rendered under the contract of employment, does not amount to a defense. The claim for wages earned and due before the dismissal, and for damages for a wrongful dismissal, constitute two separate and independent causes of action, and may be prosecuted separately. Perry v. Dickerson, 85 N. Y. 345, 39 Am. Rep. 663. The counterclaim set forth in the ninth paragraph of the answer alleges that on divers days between the 1st day of June and the 1st day of September, 1899, the defendant delivered, paid over, and intrusted to the said Orrin R. Whitney, as its manager aforesaid, to be expended by him for the benefit and for the account of this defendant, and in and about its business, certain sums of money, amounting in the aggregate to the sum of $1,617.61, and that the said Orrin R. Whitney received the same for the purpose aforesaid, and that he has accounted to this defendant for the sum of $984.08 only, which he expended for and on behalf of this defendant, and that at the time of the alleged assignment set out in the complaint, and at the time of the commencement of this action, there was due and owing to this defendant from said Orrin R. Whitney the sum of $633.43, which he has failed to account for to this defendant. This allegation is denied by the plaintiff in his reply, and then, for a further and separate defense to the counterclaim, alleges ‘that Orrin R. Whitney, the plaintiff’s assignor, has fully and fairly accounted for and paid over to the defendant, or to other persons, corporations, and firms to its use, any and all moneys which may have been delivered, paid over, or intrusted to the said Orrin R. Whitney by the defendant, as in said counterclaim alleged.’ In order to’ establish its counterclaim, all that the defendant is bound to show is that the moneys claimed to have been paid to the plaintiff’s assignor were in fact paid to him by the defendant for its use, and upon doing so it may rest. Under the denial the plaintiff would be permitted to disprove the receipt by its assignor of the moneys, and possibly that he had accounted to the defendant therefor, but he would not be permitted to show that he had paid the money so received by him either to the defendant, or to others for the defendant’s use; that being a matter of affirmative defense. Andrews v. Moller, 37 Hun, 481; Salisbury v. Stinson, 10 Hun, 242; Hicks-Alixanian v. Walton, 14 App. Div. 199, 43 N. Y. Supp. 541. The plaintiff’s demurrer to the first and second separate defenses contained in the answer of defendant must be sustained, with $20 costs, with leave to defendant to amend within six days upon the payment of costs, and the defendant’s demurrer to the separate defense contained in the reply of the plaintiff must be overruled, with $20 costs.”</p>

<p>Railroads—Accident at Crossing—Conflicting Evidence.</p> <p>Plaintiff was injured by being struck by an engine as he was attempting to cross the track. He had waited until a train had passed nearly out of sight, when he attempted to cross, after having looked and listened, and was struck by a train moving in the same direction, which had been following the first train. The engine whistle had been sounded once, when the train was at a standstill, about 500 feet from the crossing, for the purpose of having the brakes released, and the evidence as to the bell being rung was conflicting. Helé, that the question of defendant’s negligence was for the jury.</p>

<p>Appeal from municipal court of city of New York.</p> <p>Action by Susan Montross against Dennis Flynn. From a judgment of the New York City municipal court in favor of defendant, plaintiff appeals. Reversed.</p>

Action by James A. Stephens against the Nassau Electric Railroad Company for injuries received while in the employ of defendant. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Action by Sarah T. Willis against the Metropolitan Street-Railway Company. From a judgment in favor of plaintiff, and from am order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Exceptions from, special term, Westchester county.</p> <p>Action by George Palliser against Joel B. Erhardt and others to recover for services as an architect. There was a verdict in defendants’ favor, and exceptions ordered to be heard in the first instance by the appellate division. Exceptions overruled, and judgment on the verdict.</p>

<p>Bailment—Negligence of Bailee—Question for Jury.</p> <p>In an action for the value of a horse, which defendant hired and returned the following morning in a dying condition, plaintiff testified that the horse had not been properly cared for, and the veterinary who treated him testified that the disease was caused by “overfeeding, giving water when overheated, fast driving, and ill-treatment,” and that the horse might have been saved had it been properly treated when its condition was discovered, instead of being removed without treatment from defendant’s to plaintiff’s barn on a cold night. Held, that the question of defendant’s negligence should have been submitted to the jury.</p> <p>Goodrich, P. J., dissenting.</p>

<p>Appeal from trial term, Wayne county.</p> <p>Action by Catherine A. Hill," as executrix of George W. Hill, deceased, against Dwight S. Chamberlain and others, to recover damages resulting from the unlawful acts of defendant in purchasing real estate for an inadequate consideration at a mortgage foreclosure sale, by reason of false and fraudulent representations. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed.</p>

<p>:1. Eminent Domain—Taking Property for Street—Damages.</p> <p>Where real estate is subject to an easement requiring the owner to keep open a private way having all the characteristics of a public street, its subsequent taking for a public street entitles the landowner to nominal damages only.</p> <p>"-S. Easements—Abandonment—Estoppel.</p> <p>Where the owner of land sells a portion constituting a private way, and his grantee erects a house thereon, with knowledge of the grantor and without objection on his part, it is an abandonment which will estop the owner from afterwards claiming such right of way.</p> <p>■"8. Same.</p> <p>Where a property owner entitled to a private right of way having all the characteristics of a public street on adjoining lands knowingly permits the owner of the land to erect a house on the private way without objection, it constitutes a waiver of his easement in the way.</p> <p>"4. Adverse Possession—Title by.</p> <p>Where land forming part of a private right of way was sold in 1878, and the grantee entered thereon, and erected a house, and the persons entitled to the right of way did not object, though knowing such facts, :and the property was used for a residence until 1900, the grantee acquired valid title thereto by adverse possession.</p>

<p>Appeal from Cattaraugus county court.</p> <p>Proceedings by the city of Olean in the opening of Eleventh street. Prom the judgment of the commissioners awarding damages to Nancy A. Lamper, the city appeals. Affirmed.</p>

<p>1. Fraudulent Conveyance—Husband and Wipe—Creditors’ Suit.</p> <p>A husband fraudulently conveyed his goods to his wife and another, and such other conveyed to defendant, who purchased in good faith, and formed a partnership with the wife. Subsequently, after notice of the fraud and of pending actions to set aside the conveyance, the goods of the partnership were transferred to a corporation organized for the purpose, and in which the members of the partnership were the principal stockholders. Held, that the corporation, having purchased with notice, was bound by the judgments subsequently recovered in the creditors’ actions adjudging the conveyance void.</p> <p>3. Same—Subsequent Purchaser.</p> <p>The receiver was entitled to judgment against the corporation for the amount of the wife’s interest in the partnership at the time it was transferred to the corporation, and against the wife for the value of the property conveyed to her by the husband, but to no judgment against the wife’s partner individually.</p> <p>Rurnsey and Williams, TJ., dissenting.</p>

<p>• Transfer Tax—Appraiser’s Report—Determination of Amount—Order of Surrogate—Mistake—Vacation—Correction of Report.</p> <p>Under Laws 1896, c. 908, § 229, known as the “Tax Law,” and giving the surrogate’s court authority to determine any question arising under the provision of such act, a surrogate who by. mistake signs an order determining the amount of a transfer tax (the report of the appraiser stating the values as of a time six years after the testator’s death, such values as of the time of such death not appearing) may vacate the order and send the report back to the appraisers for correction.</p>

Application by Lawrence Schuman, an infant, by his next friend, to have an action against the Brooklyn Heights Bailroad Company given preference in the trial calendar. Denied.

<p>Action by Joseph B. C. Tuell against J. Overton Paine. Application by plaintiff to impose conditions on defendant. Application denied.</p>

<p>In the matter of the judicial settlement of the account of proceedings of Eliza J. Arkenburgh, as executrix, and Oliver M. Arkenburgh, as executor, etc., of Robert H. Arkenburgh, deceased.</p>

<p>Action by Elizabeth F. Ametrano, individually, etc., against Henry T. Downs and others.</p>

<p>Action by Henry Blum and another against Aug. M. Bruggeman, impleaded, etc. D. S. Updike, for appellant. E. Arnstein, for respondents.</p>

<p>Action Nancy E. Bliss against Charles L. Sherrill, impleaded, etc. No opinion.</p>

<p>Action by Irving T. Bush against John C’Brien and others. D. Emery, for appellant. L. L. Kellogg, for respondents.</p>

<p>Action by Henry W. Cane and others against the state of New York. From a judgment in favor of defendant, plaintiffs appeal. Modified.</p>

<p>Action by William M. Keeler against the Onondaga County Savings Bank.</p>

<p>Action by William Long against the Mutual Life Insurance Company.</p>

<p>Action by Edith A. Loomis against Margaret Stisser, impleaded, etc.</p>

<p>Action by Julius B. North, as trustee, etc., against Delbert A. Taylor and another.</p>

<p>Proceeding by the people of the state of New York against William J. Glen.</p>

<p>Proceeding by the people of the state of New York against Pqter J. Goon.</p>

<p>Proceeding by the people of the state of New York, on the relation of the city of Rochester, against George A. De Witt and others, assessors of the town of Henrietta, etc.</p>

<p>Action by Susan E. Pollard against Frederick Hebard.</p>

<p>Certiorari by the people, on relation of the Society of the Free Church of St. Mary the Virgin,"" to Thomas L. Feitner and others, commissioners of taxes and assessments, to review the action of respondents in assessing the clergy house and rectory, parts of relator’s church building, for taxation. From an order quashing the writ, relator appeals. Reversed. William G. Wallace, for appellant. ■ James M. Ward, for respondents.</p>

<p>Action by Elizabeth II. Servis against George Servis and Matilda Servis.</p>

<p>Action by John Statts against Thomas Garrett. Judgment for defendant on report of referee, and plaintiff appeals. Affirmed. Jacob H. Chite, for appellant Marcus T. Hun, for respondent.</p>

Action for personal injuries sustained by the plaintiff from a wagon of the defendants, which was driven upon and into a part of a street car where the plaintiff was seated. Nadal, Smyth, Carrere & Trafford (Herbert C. Smyth and Edwin A. Jones, of counsel), for appellants. Louis Steekler, for respondent.