Imágenes de páginas
PDF
EPUB

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15. is alleged, are necessary and material witnesses upon the trial of the action. Of this number it is proposed to be proved by seven that repeated inspections of stock as it passes into the process of manufacture of machines in plaintiff's manufactory is had, and all poor and doubtful stock, whenever found, is condemned and thrown out; by two others that only perfect stock is packed as parts of reel arms for binders, so far as good inspection can ascertain. It is thus seen that nine of the witnesses are only material to establish good inspection of material, care in process of manufacture, and the rejection of imperfect and doubtful material which might enter into the structure of the machine. This testimony simply relates to the establishment of due and proper care in the construction of the machine. None of these witnesses are expected to testify with respect to the particular parts of the particular machine which is the subject of this controversy. This testimony is doubtless admissible upon a trial of the issues, but its bearing upon the real issue of the character of the material used in the construction of this machine is quite remote. It would be quite easy to have increased the number of the witnesses in this particular line by embracing the kind of material used and extending the care of inspection back to the original tree from which the timber was taken. The machine itself is still in existence, and its locus is in the county of Cattaraugus, and it can be made the subject of present inspection, and the character of the material used therein can be definitely ascertained. For this purpose not a single witness is necessary to be called from the county of Dutchess. Besides, the defendant has offered to stipulate all that it can fairly be claimed the testimony of these witnesses will establish so far as the same appears in plaintiff's affidavit. The learned judge below seems to have construed this testimony as showing that the machine was good, whereas its only effect is to show that plaintiff used such means and appliances as would produce a good machine. The inference might be derived therefrom that this was a good machine. But the inference is just as strong when the fact is admitted which is sought to be established by the evidence.

Six of the other witnesses are to be called as experts to testify that machines constructed and set up as this machine was will operate properly, and if they fail, it is due to the fault of the

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

operator and not to the improper construction of the machine. It was held in Bushnell v. Durant (83 Hun, 32) that expert witnesses are not those whose convenience is to be consulted in changing the place of trial. We see no reason why we should adopt any different rule in this case.

This leaves two witnesses who are necessary and material witnesses upon the trial who reside in Dutchess county, and one of these is placed among the experts, so his testimony will be available upen that branch of the case-Stephens, who tested and inspected the material that entered into this machine, and Johnson, who set up the machine upon the defendant's premises. Wilbur, the agent upon whom plaintiff relies to establish the contract of sale, resides in the county of Erie, within thirty miles of the county seat of Cattaraugus county, and as to him it is distinctly to his advantage to have the trial in that county. It, therefore, appears from the papers that not only did the transaction sued upon arise in Cattaraugus county, but that the convenience of the greater number of witnesses will be subserved by having the trial in that county.

We are not blind to the suggestion that the determination of this motion is of more than usual importance in the subsequent disposition of this lawsuit, and for this reason we have carefully examined and considered the papers and given such weight to the determination of the court below as we think it entitled to. But we are unable to resist the conviction that this motion was improperly disposed of. If the plaintiff elects, the testimony of the witnesses who reside in Dutchess county may be taken by deposition, and the offer of the defendant to admit, as stated in his affidavits, may be availed of by the plaintiff.

The order should be reversed, with ten dollars costs and disbursements, and the motion should be granted, with ten dollars costs to abide event of the action.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15.

CHARLES A. BENEDICT, Respondent, v. AMELIA FERGUSON, Appellant.

Executor and administrator — personal liability of, for the funeral expenses of his decedent.

A personal representative having sufficient assets in his hands is personally liable for the funeral expenses and interment of his decedent, to such an extent as was suitable to the decedent's station and rank.

A complaint which states that the plaintiff, an undertaker, buried the body of a decedent, furnished materials and expended money in connection with such burial, all of which were necessary and of the reasonable value of $247.25; that thereafter letters of administration upon the estate of the decedent were issued to the defendant, who received assets of the estate in excess of $800, and avers a demand for payment and a refusal, contains every requisite of a good cause of action against the defendant individually.

APPEAL by the defendant, Amelia Ferguson, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of October, 1896, upon the decision of the court rendered after a trial at the New York Special Term overruling her demurrer to the plaintiff's complaint.

This appeal was transferred from the first department to the second department.

James E. Hopkins, for the appellant.

John L. Kirk, for the respondent.

HATCH, J.:

The complaint in this case is sufficient to resist the demurrer. Its averments are that the plaintiff is an undertaker; that, as such, he buried the body of defendant's brother, furnished a casket and other necessary materials, performed services and expended moneys in connection with the burial, all of which was necessary and reasonably worth the sum of $247.25; that thereafter letters of administration were issued upon the estate of the deceased to the defendant in the action; that she duly qualified as administratrix and received assets of the estate in excess of the sum of $800; averred demand for payment and refusal, and demanded judgment for the said amount, with interest.

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

The grounds of demurrer are two: First, that the action cannot be maintained against the defendant individually. Second, that the complaint does not state facts sufficient to constitute a cause of action. The questions presented are settled by authority. In a very satisfactory opinion by Judge F. J. DALY, the rule was laid down that, where the personal representative has sufficient assets in his hands, he is personally liable to pay for the funeral expenses and interment of the deceased to such extent as is suitable to his station and rank in life. (Rappelyea v. Russell, 1 Daly, 214.) This case has been approved by other courts (Lucas v. Hessen, 13 Daly, 347; Kessell v. Hapen, 8 N. Y. St. Repr. 352), and the same doctrine held by others. (Patterson v. Patterson, 59 N. Y. 574; Murphy v. Naugh ton, 68 Hun, 424.) Every requisite of a good cause of action is found present in this complaint.

It follows that the judgment should be affirmed, with costs, with leave to the defendant to answer within twenty days on payment of

costs.

All concurred.

Judgment affirmed, with costs, with leave to the defendant to answer within twenty days on payment of costs.

CHARLES E. MEIER, Respondent, v. PETER WILKENS and CHARLES BUSCHMANN, Appellants.

Conversion - price paid, as proof of value. - what property may be taken cognizance of — not a revokable license issued by the comptroller of New York city, transferable only with his consent, nor the good will of a business in the licensed premises, nor a non-transferable excise license.

One Campbell, who occupied certain market stands in the city of New York under a revokable permit from the comptroller of the city, which could not be transferred without the written consent of such comptroller, executed to one Meier, to secure his notes for $11,000, a bill of sale, by the terms of which he, in consideration of $11,000, sold to Meier all the furniture, fixtures, utensils, stock on hand and good will of the business carried on by him (Campbell) in such stands, together with all the leasehold interest and right of possession owned or claimed by him therein, and the license granted to him

[blocks in formation]

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15.

by the board of excise to sell ales, wines and liquors, which was not transferable, and the stock on hand.

Subsequently, in consideration of $10,000, Campbell sold the property to parties who obtained a permit for the use of the stands from the comptroller, and entered into possession thereof.

In an action brought by Meier to recover damages for the conversion of the property by the last-mentioned parties, who refused on demand to deliver it to him, it was

Held, that, while evidence of the price paid by the defendants might be entitled to some consideration upon the question of the value of all the property mentioned in the bill of sale to the plaintiff, it could not be treated as evidence of the value of any portion as distinguished from the whole; That, as the plaintiff acquired no right of occupancy in the stands against any one except Campbell, and as his remedy, if any, to obtain possession of the stands, was of an equitable nature, depending upon the consent of the comptroller, cognizance could, in this action, be taken only of the tangible personal property, and that the market stands, as such, the good will of the business and the licenses granted by the comptroller and by the board of excise should have been excluded from the subject of the action.

APPEAL by the defendants, Peter Wilkens and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of June, 1896, upon the verdict of a jury, and also from an order entered in said clerk's office on the 26th day of June, 1896, denying the defendants' motion for a new trial made upon the minutes.

This appeal was transferred from the first department to the second department.

Henry M. Goldfogle, for the appellants.

Thomas P. Wickes, for the respondent.

BRADLEY, J.:

The alleged cause of action is for the conversion of personal property, the plaintiff's title to which is founded upon a bill of sale made to him by Thomas Campbell, of date March 8, 1893, by the terms of which Campbell, in consideration of $11,000, sold to the plaintiff all the furniture, fixtures, utensils and good will of the business of Campbell on the northwest corner of West street and Loew avenue in stands Nos. 25, 26 and 27 West street, and No. 1 Loew avenue, in the city of New York, together with all the leasehold

« AnteriorContinuar »