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izing the formation of corporations for manufacturing, mining, mechanical, or chemical purposes, and the acts amendatory thereof. The complaint charges that one Andrew Johnson, having performed services as a laborer for the corporation, and not having been paid therefor, commenced an action against the corporation, and on April 26, 1892, recovered judgment against it for $355.03 on account of such services; that execution thereon was returned unsatisfied; that the company is insolvent; that the defendant is stockholder to an amount exceeding such claim; that the whole amount of stock has not been paid in; and that the judgment has been assigned to the plaintiff, who is the owner of it.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

J. L. Woodworth and I. Sam Johnson, for plaintiff.
Charles N. Morgan, for defendant.

And upon

BRADLEY, J. The complaint alleges the elements of two grounds of liability of the defendant,—the one, the nonpayment in full of the amount of the capital stock of the corporation, as re. quired by the statute, (Laws 1848, c. 40, $ 10,) and the other that the money was due to the plaintiff's assignor for his services as laborer for the corporation, (Id. § 18.) The defendant, by his answer, put in issue both alleged propositions, and the plaintiff proceeded at the trial with the view to recovery upon the latter ground. The defendant was a stockholder of the company to an amount exceeding that of the plaintiff's alleged claim. The plaintiff was the assignee of a judgment which had been recovered by Andrew Johnson against the company, and execution thereon had been returned wholly unsatisfied. The question, therefore, was whether or not the company was indebted to Johnson for services rendered by him as a laborer, within the meaning of the statute; and such is the claim upon which the judgment was recovered by him. that subject a witness on the part of the plaintiff testified that he knew Johnson; that, about the time the action was commenced by Johnson against the salt company he saw Daniel Eldridge and Johnson together; that Eldridge was then acting as president of the company; and that he heard a conversation between them in reference to the claim. He was then asked to state what it was. Objection was made to it "as incompetent to prove any issue or any fact raised by the pleadings." "By the Court: You seek to show that Mr. Eldridge, acting as president, admitted to Mr. Johnson that he had employed him, and that that claim was owing to him by reason of that employment? By Plaintiff's Counsel: Yes, sir; and that they looked over and made an accounting, and stated the amount between employer and employe. Now, it is to show that amount and to show the nature of the employment that I offer this evidence. We propose to show what the contract was.” The objection was overruled, and exception taken. The witness testified that Johnson was in the witness' office, and, when Eldridge came in, said to him: “You owe me $230, and agreed to pay me $4 a day. I have worked there seventy days, and you have paid me only $50, and there is $230 due.” That Eldridge replied: "I know I agreed to pay you $4 a day, and I only paid you $50; and, if you had done

as you agreed, it would have been that amount.” This interview was some time after Johnson had ceased to work for the company, and the conversation, merely as such, between him and Eldridge, was not competent evidence against the defendant. Nor is it seen that what was said of the purpose of the evidence before the ruling was made by the court tended to show that it was part of the res gestae, in a transaction between those persons in which Eldridge, as president of the company, was legitimately acting as its representative. The offer, as a whole, did not purport to make the conversation a part of any transaction in the business of the company, nor did the evidence given tend to make it so. The exception was well taken. Thallhimer v. Brinckerhoff, 4 Wend. 394; Cortland Co. v. Herkimer Co., 44 N. Y. 22; Anderson v. Railroad Co., 54 N. Y. 334. The objection to the conversation remained, and, after the ruling, no inquiry was made whether they were engaged in any act of accounting, or by way of adjustment or settlement; but the question was repeated, what was the conversation? and the answer to it closed the examination of the witness on the part of the plaintiff. In Hoag v. Lamont, 16 Abb. Pr. (N. S.) 91, 60 N. Y. 96, the declarations proved, of the officer of the corporation, had relation to the contract out of which the liability in question there arose, were made at the time it was entered into, and constituted part of the transaction of making it. The judgment recovered by Johnson against the salt company was of itself no evidence, as against the defendant, of the alleged indebtedness of the company to him. Miller v. White, 50 N. Y. 137. For the error before mentioned in the reception of evidence, the motion for a new trial should be granted; costs to abide the event. All concur.

(75 Hun, 414.)

PHELPS Y. ROWE.

(Supreme Court, General Term, Fifth Department. January 18, 1894.) STATUTE OF FRAUDS-PROMISE TO PAY DEBT OF ANOTHER.

One N., being indebted to both plaintiff and defendant, and having a claim against a third person, agreed to assign such claim to defendant, who promised, on collection of the claim, to pay the debt of N. to plaintiff. Held, that such promise was not within the statute of frauds. Appeal from Monroe county court.

Action by Henry C. Phelps against Lucian Rowe. From a judg. ment in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Affirmed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
P. M. French, for appellant.
John Desmond, for respondent.

LEWIS, J. One Jackson Utter owed the defendant about $1,500 for rent of a farm. He at the same time was indebted to plaintiff in the sum of $240 for apple barrels which he had purchased of him,

and for which he had agreed to pay the plaintiff when he sold his apples. Utter sold his apple crop, including these barrels pur. chased of plaintiff, to a Mr. Burlingame for the sum of $931.25. A controversy arose between Utter and Burlingame concerning the apple bargain, and Burlingame refused to pay for them. Utter thereupon made a verbal agreement with the defendant to the following effect: Utter was to transfer his claim against Burlingame to the defendant. Defendant was to collect it, and, when collected, he was to pay out of the money received to the plaintiff the amount of his claim against Utter. Utter made, accordingly, a formal written assignment of the said claim to defendant. Nothing was said in the writing as to what should be done with the money when collected. Plaintiff was not cognizant of the agreement or assignment until after they were made. When informed of them, he called upon the defendant, and the defendant promised him that he would pay his claim against Utter when he succeeded in collecting the money of Burlingame. Burlingame paid the money to the defendant, and, though requested so to do, he refused to pay plaintiff's claim, and this action was prosecuted in the municipal court of Rochester, when plaintiff had a verdict against the defendant for the $240. The action was retried in the Monroe county court, where plaintiff obtained another verdict, and an appeal was taken to this court. It is the contention of the counsel for the appellant that the promise, not being in writing, was void under the statute of frauds. We do not think so. Utter was under no legal obligations to transfer his claim against Burlingame to the defendant. He did so upon condition that defendant should out of the moneys, when collected, pay plaintiff's claim. The de fendant, having accepted the claim upon that condition, became the debtor to plaintiff for the amount of the Utter debt when he obtained the money of Burlingame, and was liable to the plaintiff in an action therefor. Lawrence v. Fox, 20 N. Y. 268. The judg. ment and order appealed from should be afirmed, with costs. All concur.

(75 Hun, 151.)

LANG V. HOUSTON, W. S. & P. F. R. CO. (Supreme Court, General Term, First Department. January 12, 1894.) 1. STREET RAILROADS-INJURY TO PERSON ON TRACK.

In an action for the death of plaintiff's intestate, who was run over by defendant's street car, a witness testified that just before the accident he signaled to stop the car, but the driver refused to do so, and urged on his horses, which were "going at a terrific rate.” Another witness testified that he was on the front platform beside the driver; that the horses were going "at a very fast rate,”-in his opinion, about 12 miles an hour; that the driver did not notice decedent; and that he, (witness] seized the reins to stop the car. Held sufficient to charge defendant with

Degligence. 2. DEATH BY WRONGFUL ACT-WHO MAY SUE.

Code Civil Proc. $ 1902, providing that “the executor or administrator of a decedent" may sue, includes an ancillary executor.

Appeal from circuit court, New York county.

Action by Otto J. Lang, as ancillary executor of Mason Hirsch, deceased, against the Houston, West Street & Pavonia Ferry Railroad Company. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Henry A. Robinson, for appellant.
G. W. Hopkins, (D. Edgar Anthony, of counsel,) for respondent.

FOLLETT, J. This action was brought to recover damages arising from the death of plaintiff's testator, caused, it is alleged, by the negligence of the defendant's employes. At about 5 o'clock and 15 minutes in the afternoon of March 9, 1892, Mason Hirsch, in attempting to cross from the east to the west side of Broadway, was knocked down by the horses drawing one of defendant's cars, and so injured that he died within 48 hours thereafter. But two witnesses were sworn on the question of the negligence of the defendant's employes and the contributory negligence of the decedent. Mr. Scheuer, who was engaged in business on Broadway, and familiar with the rate of speed of horse cars in that street, testified that just before the accident he signaled the driver of the car which injured the decedent that he wished to board it, but the driver refused to stop, and indicated that he should take another car, and urged on his horses, which were, in the language of the witness, "going at a terrific rate of speed." Mr. Baylor, a lawyer having an office on Broadway, was riding on this car, and stood by the side of the driver at the time of the accident. He testified that the horses were being driven "at a very fast rate of speed;" that they were galloping most of the time going up Broadway, and, in his opinion, they were traveling at the rate of 12 miles an hour. He describes the accident as follows: “Just before the horses struck him, Hirsch,] I saw the driver didn't notice him, and I caught the driver, and grabbed hold of his reins, and then he instantly saw him, and he put the brake on, and tried to stop." No witnesses were called by the defendant as to the rate of speed of the car, or to contradict or to explain the evidence given in behalf of the plaintiff, and, without quoting it, we think there was sufficient to justify the jury in finding that the car was moving at a rate of speed which, in that crowded thoroughfare, was negligent, and also that the driver was negligent in not observing the decedent in time to avoid the collision. The decedent was crossing Broadway at or near a street crossing, and the car, approaching from the south, was signaled by a person who wished to take it; and it was not, as a matter of law, negligent in the decedent to fail to observe that the car was moving at more than twice the usual rate of speed of horse cars on Broadway, nor was it negligent for the decedent to assume that the driver would obey the customary signal of a person desiring to take the car. The evidence justified the jury in finding that if the car had been moving at the usual rate of speed of horse cars on Broadway, or if the driver had obeyed the signal of Scheuer,

who tried to take passage, the decedent would have crossed in safety; and we think the evidence was sufficient to authorize the jury to find that the decedent did not, by his negligence, contribute to the accident.

The decedent, at the time of his death, was a resident of the city of Philadelphia, in the state of Pennsylvania. He left a widow and six children, who are his next of kin and heirs. He left a will, which was duly admitted to probate March 24, 1892, in the state of Pennsylvania, and letters testamentary were issued to Mina Hirsch, his widow, Henry Hirsch and Alfred C. Hirsch, two of his sons. September 10, 1892, ancillary letters were granted by the surrogate of the city and county of New York to the plaintiff, a son-in-law of the decedent. It is insisted in behalf of the appellant that section 1902 of the Code of Civil Procedure gives a right of action only to "the executor or administrator of a decedent;" but does not confer a right of action on an ancillary executor. This statute is a remedial one, enacted to compel those who negligently cause the death of persons to compensate the surviving husband, widow, or next of kin of the person so killed; and, like all such statutes, should be so construed as to give, instead of withholding, the remedy intended to be provided. Lamphear v. Buckingham, 33 Conn. 237; Haggerty v. Railroad Co., 31 N. J. Law, 349. The important portion of the section is that which gives a right of action, and not that part which provides who may enforce it, which is an incidental provision. There is nothing in the words of the statute, nor in the circumstances attending its enactment, from which it can be inferred that the legislature intended only to give a right of action in case the person killed was a citizen of this state, or left property in this state. The words of the statute are: “The executor or administrator of a decedent

may maintain an action to recover damages." These words are broad enough to include ancillary executors or administrators, and nowhere in the sections relating to this subject are there found words indicative of an intent to exclude ancillary representatives, nor is there any reason, that we can see, why they may not maintain an action, unless we hold that the statute does not apply to persons killed who are not residents of this state. Section 2702 of the Code of Civil Procedure provides that all of the provisions of chapter 18 of the Code (except the fifth title, which relates to the distribution of decedent's realty) "relating to the rights, powers, duties, and liabilities of an executor or administrator, apply to a person to whom ancillary letters are granted.” Section 1902, being a part of chapter 15. and not of chapter 18, is not within the express terms of section 2702, but by the broad powers conferred by that section upon ancillary representatives it is evident, we think, that the legislature intended to give them every right of action conferred upon executors or administrators, except those specially excepted. We think the intention was to give damages to the surviving husband, widow, or next of kin, enforceable by the person who, for the time being, represented in this state the estate of the decedent. The judgment should be affirmed, with costs. All concur.

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