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and 95 New York State Reporter.

10 days. Among the by-laws there was also one which the plaintiff translated to the effect that:

"Whenever a sick member shall not have faith in the doctor of the society, he can procure for himself any doctor he desires, but at his own expense. But if he wants to receive sick benefit he will have to notify, within twenty-four hours, the corresponding secretary, who can immediately notify the doctor of the society, who will then visit the sick member within eight hours, and, if he find that the member is sick, he will leave with him a memorandum, and the association will not recognize any other certificate but that of the society. It would be useless for any member who has been sick to try to prove his sickness through the certificate of another doctor than that of the society, as the committee will not recognize the same."

With this by-law the plaintiff neither complied nor attempted to comply, because, as he says, his illness was rush of blood to the head, and he could not, at 4 o'clock in the morning, go and notify the society, and because, as his counsel says, the by-law is unreasonable, and therefore not obligatory. Neither of these excuses may prevail. It is nowhere suggested that the plaintiff's inability to give notice lasted for the whole of the first 24 hours; much less for any one of the remaining 9 days. The by-law does not appear to be an unreasonable precaution for the protection of the society. Moreover, the plaintiff can hardly be heard to say that the by-law is unreasonable, for, as a member from the foundation, he must have taken part in the adoption of the by-law originally, or have given to it his assent upon joining the society at its outset, and because, too, he had recognized it himself by sending the prescribed notification when sick on a former occasion. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

Judgment reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

MARKOWITZ v. JOSEPH ECKERT LODGE, NO. 82. I. O. B. A.

(Supreme Court, Appellate Term. December 28, 1899.)

BENEFICIAL ASSOCIATIONS-SICK BENEFITS-COMPLIANCE WITH BY-LAWS-CONDITIONS.

A member of a beneficial association, who failed to comply with a bylaw of the association providing that a member leaving their usual place of residence shall be entitled to the sick benefit, provided he procure a traveling card, and present it to the branch lodge where he may be sojourning. and request such lodge to officially notify the association of his illness, cannot maintain an action for the sick benefits, as compliance with the by-law is a condition precedent to the association's liability.

Appeal from municipal court, borough of Manhattan, Third district.

Action by Moses Markowitz against the Joseph Eckert Lodge, No. 82, Independent Order Brith Abraham, to recover a sick beneFrom a judgment in favor of defendant, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

Eli S. Schreier, for appellant.

Leopold Moschcowitz, for respondent.

MacLEAN, J. From the agreed state of facts it appears that the plaintiff's assignor, who was a member of the defendant lodge, might have been entitled to a "sick benefit" had he, during an absence from the city, complied with a by-law which required him to procure a "traveling card," and present it to the branch lodge in Erie, where he was sojourning, and request that lodge officially to notify the defendant of his illness. These acts on the part of the plaintiff were conditions precedent to the defendant's liability. He performed none of them. His complaint was therefore rightly dismissed upon the merits by the learned justice, and the judgment herein should be affirmed.

Judgment affirmed, with costs. All concur.

FRANKLIN COAL CO. v. HICKS.

(Supreme Court, Appellate Division, Fourth Department. December 29, 1899.) GOODS SOLD AND DELIVERED EVIDENCE.

Plaintiff having refused to sell defendant's husband coal for his business on credit, defendant requested that coal subsequently delivered should be charged in the husband's name, but that she should be the purchaser, and would pay therefor. After the husband's failure, plaintiff presented to the wife a bill, which she admitted was correct, and gave a check in part payment. At defendant's request, plaintiff accepted the husband's note and a preliminary statement for confession of judgment against him for a part of the account. Held, that a verdict against the wife would not be set aside as contrary to the evidence, though both she and her husband denied making the agreement.

Appeal from trial term, Steuben county.

Action by the Franklin Coal Company against Frank Hicks. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals. Affirmed.

Argued before HARDIN, P. J., and ADAMS, MCLENNAN, SPRING, and SMITH, JJ.

James H. Stevens, for appellant.

F. A. Robbins, for respondent.

SPRING, J. The plaintiff is a corporation dealing in coal, with its principal place of business in Buffalo. In 1896, and prior thereto, the husband of the defendant was a retail coal dealer in Hornellsville, in this state. This action is brought to recover for several car loads of coal which the plaintiff claims were sold directly to the defendant. It seems that the plaintiff had sold a small quantity of coal to the husband of defendant, and in the early winter of 189596 Mr. Meagley, the agent of plaintiff, went to Hornellsville, with a view of making sales. He testified that he had learned that Mr.

and 95 New York State Reporter.

Hicks was irresponsible, but that his wife was of good commercial credit. He further testified that he saw the defendant, and stated to her that the plaintiff had ascertained Mr. Hicks was irresponsible, and did not desire to continue its trade with him; that he understood she was the owner of property, and his company would sell to her whatever quantity she wanted. She then said she owned real estate in Hornellsville to the amount of $20,000, and that she had paid for coal purchased by Mr. Hicks. She said she would pay for the coal. She asked that it be charged to her husband, because he made the collections, and she did not wish him to know she was to be the paymaster. In pursuance of this arrangement, the coal was shipped to Mr. Hicks. The defendant denies that she ever had any conversation whatever with Meagley, and she is corroborated in this by her husband. This was the narrow issue in the case, and the jury have determined it in favor of the plaintiff.

The contention of the defendant is that the verdict is unsupported by the evidence. While a verdict in favor of the defendant would be well sustained, we cannot say there is any overwhelming preponderance of evidence requiring us to set aside the verdict. The case was carefully tried, and the motion for new trial well considered, and the trial judge, who saw the witnesses, is vested with reasonable discretion in motions of this character. An appellate court does not grant new trials because, perhaps, it would have arrived at a different conclusion than that reached by the jury. As was said by Hardin, P. J., in Duffus v. Schwinger, 92 Hun, 70, 36 N. Y. Supp. 342, affirmed in 157 N. Y. 685, 51 N. E. 1090:

"In Morss v. Sherrill, 63 Barb. 21, it was said that, to justify an appellate tribunal in setting aside a verdict, it must be entirely against the weight of the evidence. And in that case it was further said that a new trial would not be granted on the ground that the verdict is against the weight of evidence, where the testimony is contradictory, and the character and credit of the witnesses are questioned. In the case in hand we find that there is a severe conflict, and we are of the opinion that the trial judge very cautiously and carefully upon all the critical questions pointed out to the jury the bearing of the evidence, and invoked their attention to it in such a way as to challenge a fair conclusion thereupon. The jury saw the witnesses, heard them testify, observed their manner of testifying, and were called upon to determine what credit should be given to the respective witnesses in the light of all that transpired at the trial. According to well-established rules in dealing with the verdict, we think the conclusion pronounced by the jury should be allowed to remain."

And as was said by Judge Pryor in Supply Co. v. O'Neill, 10 Misc. Rep. 655, 31 N. Y. Supp. 792, affirmed in 155 N. Y. 634, 49 N. E. 1098:

"We have no authority to substitute our judgment for the judgment of the jury, and to say that proof persuasive with us should have been convincing to them."

There were facts proven in this case which tended to confirm the position of Meagley. The fact is uncontroverted that Mr. Hicks was insolvent, and the jury might well believe that the agent of the plaintiff, who was on the ground, and knew of the situation of affairs, would not dispose of a large quantity of coal upon the credit of this impecunious dealer. On July 24, 1896, after the crash came, defendant gave a check for a small sum to the plaintiff, inserting

She

therein that it was "to apply on account." And, if Meagley is to be credited, when the statement of account was presented to her in her name she affirmed its correctness. The defendant was the creditor of her husband. She had loaned him money, and was contingently liable as his indorser. Her own prospect of payment hinged upon the successful continuance of the coal business. was not, therefore, a stranger, nor was her interest the sentimental one based wholly upon the marital relation. She had a pecuniary interest in the success of his business, and the jury may have concluded she was thus induced to intervene and become the purchaser of the coal. On the contrary, the goods in form were charged to Mr. Hicks, and a bill made out against him. The plaintiff accepted the note of the husband towards this account, and upon his failure pursued him to enforce the demand, and obtained a statement preliminary to a confession of judgment against him. Plausible explanations are given of some of these facts. The credit to Hicks and the taking of the note were the result of the arrangement with the defendant, and the confession of the judgment was at her instance. The only pertinence of the proof in respect to the subsequent attempt of the plaintiff to enforce the demand against Mr. Hicks is the bearing it has upon Meagley's story. These acts could properly be urged to the jury as inconsistent with the claim that the defendant was the original debtor, but they are not conclusive. Foster v. Persch, 68 N. Y. 400. The giving of the credit, and the presentation of the bill to Mr. Hicks, are cognate circumstances making for the contention of the defendant. They are, however, susceptible to explanation. Maddock v. Root, 72 Hun, 98, 25 N. Y. Supp. 396, affirmed in 150 N. Y. 561, 44 N. E. 1125; Jessup v. McGarry (Sup.) 7 N. Y. Supp. 751.

There is no question of the statute of frauds in this case. The complaint sets out a cause of action for goods sold and delivered to the defendant, and she answers with a general denial. This was insufficient, for the defense urged is an affirmative one. Matthews

v. Matthews, 154 N. Y. 2SS, 48 N. E. 531; Crane v. Powell, 139 N. Y. 379, 34 N. E. 911; Honsinger v. Mulford, 90 Hun, 589, 35 N. Y. Supp. 986, affirmed in 157 N. Y. 674, 51 N. E. 1091; Dearing v. Hardware Co., 33 App. Div. 31-41, 53 N. Y. Supp. 513.

The verdict of the jury conclusively established the agreement as testified to by Meagley; that is, that the defendant purchased the coal, and she alone was liable therefor; that the book credit to the husband was a mere makeshift, at her request, and for her benefit. This made an independent, direct agreement. She did not agree to stand sponsor for her husband's debt. Neither side pretends there was any transaction of that kind. The narrow issue was, did she buy the coal? A collateral undertaking presupposes the existence of a principal debtor. The defendant's liability is the sole one, or none at all. The version given by Meagley was a fabrication, born of perjury, or else there was a sale to the defendant. There was no middle ground, and the adoption of his statement by the jury prevents any issue of the statute of frauds.

The judgment and order are affirmed, with costs. All concur.

and 95 New York State Reporter.

CUSHMAN v. DE MALLIE et al.

(Supreme Court, Appellate Division, Fourth Department. December 29, 1899.) 1. BILLS AND NOTES-EXTINGUISHMENT-SALE-RETURN OF PROPERTY.

Where a buyer relied on the seller's representations as to the quality of the property, and the seller stated to the buyer that, if the property was not satisfactory, he would hand him back his note, given therefor, a return of the property by the buyer under a claim that it was not as represented operates as an extinguishment of the note.

2. SAME-RESCISSION.

Where one who has been induced to purchase property by false and fraudulent representations as to its quality returns it to the vendor, the jury are authorized to find that the purchaser rescinded the contract of purchase.

8. NEW TRIAL-WEIGHT OF EVIDENCE.

The supreme court, on appeal, will not grant a new trial on the ground that the verdict is contrary to the weight of the evidence, where it was rendered on conflicting testimony, and the trial judge has denied a motion therefor.

Appeal from trial term, Monroe county.

Action on a note by Sarah J. Cushman against John De Mallie and another. From a judgment in favor of defendants, and from an order denying a motion for new trial, plaintiff appeals. firmed.

Af

Argued before HARDIN, P. J., and ADAMS, MCLENNAN, SPRING, and SMITH, JJ.

George M. Williams and Nelson E. Spencer, for appellant.
Charles Roe, for respondents.

HARDIN, P. J. This action was commenced on the 17th day of February, 1899, to recover upon a promissory note made by the defendants, dated February 4, 1894, for $100, and in the complaint it was admitted that $25 had been paid upon the note. The note contained an indorsement as of April 11, 1897. Plaintiff's husband, Daniel J. Cushman, was called as a witness in behalf of the plaintiff, and testified to the execution of the note, and that he saw the defendants sign it; that he drew up the note at John De Mallie's house, and that it was delivered the day it bears date, and on the same day it was put in the possession of the plaintiff, who is the wife of the witness, and that the note was delivered to her at No. 16 State street, where she was carrying on a money brokerage business at the time. The witness testified that he was acting for her in making a sale of the property for which the note was given. From the evidence given in behalf of the defendants it appears that the note was given for a team of horses, harness, and wagon purchased of the plaintiff's agent, her husband, for the sum of $100,-that being the face of the note,-and after the note was made a chattel mortgage was given to Mrs. Cushman as security on the property purchased, and also upon some household furniture. At the time the male defendant negotiated for the purchase of the property he only saw one horse, and took the representations of the plaintiff's husband in respect to the other horse. In the course of the evidence

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