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and 140 New York State Reporter Order reversed, with costs, and motion denied, with costs. All concur, except COCHRANE, J., dissenting in opinion.

COCHRANE, J. (dissenting). The written contract for the amount provided : “No payment in advance. One-half when the work is ready for shipment. Balance when the work is set.” The contract for the headstone was oral, and nothing was said as to the time of payment. As to both contracts therefore, except as to the first payment on account of the monument, payment was to be made on completion of the work. It would seem that, under such contracts, there is implied a reasonable opportunity when practicable for the purchaser to assure himself before payment that the work corresponds to the contract. While the plaintiff personally was unfamiliar with the different kinds of granite, and was unable to distinguish between Westerly granite and Troy granite, the difference as appears from the record is clearly apparent and discernible to one familiar with granites. The defect complained of was not a latent, concealed defect, in the sense that it could not be ascertained save by subsequent use or wear. In January, 1903, the material was received on plaintiff's cemetery lot. January 26th defendant wrote to plaintiff that the work was completed, and asking for a remittance of the balance due. January 31st plaintiff replied: "I will comply with your wishes as expressed in your letter of the 26th as soon as I can find time to inspect the work, which will be within a day or two." Nothing further occurred until April 1st, when plaintiff unreservedly sent a check in full payment, having made no complaint or suggestion in the meantime that the work was not according to contract. I think these facts must be deemed to have constituted an acceptance by the plaintiff, and that he was not thereafter at liberty to change his mind or repudiate the contract.

In McCormick v. Sarson, 45 N. Y. 265, 6 Am. Rep. 80, it is said: "If he accept it after examination, or after an opportunity for examination, as fulfilling the contract, he is bound by such action. This rule is well settled. Reed v. Randall, 29 N. Y. 358, 86 Am. Dec. 305; Gillespie v. Torrance, 23 N. Y. 306, 82 Am. Dec. 355; Hargous v. Stone, i Seld. (N. Y.) 73; Sprague v. Blake, 20 Wend. (N. Y.) 61; Hart v. Wright, 17 Wend. (N. Y.) 267, 277 ; Welsh v. Carter, 1 Wend. (N. Y.) 185, 19 Am. Dec. 473; Swett v. Colgate, 20 Johns. (N. Y.) 196, 11 Am. Dec. 266. This is the rule in the absence of any fraud or warranty."

In Crane Company v. Collins, 103 App. Div. 480, 93 N. Y. Supp. 174, it is said:

"Undoubtedly, the rule is that, where articles of a particular description are agreed to be manufactured or sold, and the articles are not of the kind specifically described, a retention of them after the defect could with reasonable diligence have been discovered is a waiver of the defect, and no cause of action survives the acceptance and retention of the articles so manufactured, sold, and delivered."

Plaintiff took his time to make an inspection and to satisfy himself that the work was satisfactory. Surely it cannot be said that he needed even a small portion of the intervening time between the receipt of the granite and his payment therefor. It seems to have required but a few minutes of casual and superficial inspection by the granite dealers whom he called as witnesses to determine beyond the peradventure of a doubt the exact source and quality of the granite. Defendant complied with the plaintiff's expressed wish for an opportunity of inspection. He had the opportunity, and, if he failed to avail himself thereof, it was because he was satisfied to forego the privilege or right and accept and pay for the work without availing himself thereof.

In Pierson v. Crooks, 115 N. Y. 552, 22 N. E. 353, 12 Am. St. Rep. 831, it is said:

"The purchaser of goods under an executory contract, where payment and acceptance are, by the contract, concurrent and dependent obligations, cannot, on the delivery of the goods, pay the purchase money, and subsequently rescind the contract and reject the goods for defects ascertainable on examination. It would be inconsistent with the nature of the transaction and the admission which the payment implies to permit him to do so in the absence of fraud or deceit on the part of the vendor. Brown V. Foster, 108 N. Y. 387, 15 N. E. 608. In such case the purchaser must satisfy himself, before making payment, that the goods tendered correspond with the contract."

In that case the vendee was permitted to recover for payment because the contract in effect provided for "a payment in advance of delivery.” In the present case the contract expressly provides "no payment in advance.” Even if the contract did not permit plaintiff to sufficiently examine the property before payment, he expressly exacted such privilege in his letter of January 31st, which seems to have been complied with by defendant. Plaintiff took all the time he desired, and much more time than he needed, to satisfy himself of the fulfillment of the contract, and, having thus satisfied himself, he accepted and paid for the property. It was thereafter too late for him to change his mind, even though, as a matter of fact, sufficient grounds for the rejection of the property existed, had such right of rejection been promptly and properly exercised.

The learned counsel for the plaintiff seeks to sustain the verdict on the theory of a breach of warranty clearly alleged in the complaint. On such theory an improper measure of damages was adopted, as stated by the learned trial justice, who for that reason properly granted a new trial.

(56 Misc. Rep. 6.)

In re ANDREWS. (Supreme Court, Special Term, New York County. September 14, 1907.) 1. INSANE PERSONS-GUARDIANSHIP-HUSBAND AND WIFE.

The husband being the natural custodian of his wife's person, extraordinary facts should be presented to warrant the appointment of a guardian for the wife when she becomes mentally unfit.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Insane Persons,

$ 49.) · 2. SAME-SUFFICIENCY OF EVIDENCE.

Evidence examined, and held insufficient to require the appointment of a committee of the person of an insane wife to supersede the latter's husband.

In the matter of the guardianship of the person and estate of Blanche L. Andrews, an insane person. Proceedings for the settlement of accounts of John Notman and others as committee of the estate, etc., and

*See 106 N. Y. Supp. 1096.

and 140 New York State Reporter for the removal of Constant A. Andrews as one of the committee of the estate and as committee of the person. Decision rendered.

Parker, Hatch & Sheehan, for Constant A. Andrews and Blanche L. Andrews.

George C. Kobber, for Nannie V. Roosevelt.
Grant Notman, for John E. Roosevelt.

DAYTON, J. In October, 1903, on the petition of Constant A. Andrews, Blanche L. Andrews, his wife, was duly declared to be of unsound mind and an incompetent, and by an order of this court, filed about October 28, 1903, John Notman, John E. Roosevelt, and Constant A. Andrews were appointed committee of her estate upon giving a bond in the sum of $400,000, which was filed and approved, said order directing as follows:

"And they are hereby required to provide a suitable place of residence within the state of New York for the said Blanche L. Andrews and to see that she is properly cared for in a manner suited her condition, means, and social position."

Mr. Andrews was also appointed committee of the person. The incompetent's estate amounts to about the sum of $373,000, principaliy invested in the Elkhorn Valley Coal Lands Company, from which dividends of between $17,000 and $18,000 per annum are derived, and the investments of the balance of said estate realize about $5,000 per annum, making a total yearly income of about $22,000. In the event of the death of said incompetent the only persons who may be interested in her estate as her survivor are Constant A. Andrews, her husband, or Mrs Nannie V. Roosevelt, her sister, the wife of Mr. John E. Roosevelt, one of said committee of the estate. For a number of years prior to 1903 Mr. and Mrs. Andrews resided at No. 737 Madison avenue, in this city, the lease of which premises, at a yearly rental of $3,500, expires October next. The committee of the estate rendered an account November, 1904, which was judicially settled March 10, 1905. About November 8, 1906, Mr. Andrews petitioned this court, asking that the committee further account, that direction be given as to the management and expenditure of the estate, and that a trust company be appointed committee. On or about November 9, 1906, Messrs. Notman and Roosevelt also petitioned for a judicial settlement of their account. At or about the same time Mrs. Nannie V. Roosevelt petitioned for the removal of Mr. Andrews as one of the committee of the estate and as the committee of the person. About January 6, 1907, Mr. Notman died, thus creating a vacancy in the committee, which has not been filled. About January 22, 1907, these three proceedings were referred to Charles Bulkley Hubbell, Esq., by Mr. Justice Davis, and Mr Cornelius J. Sullivan was appointed special guardian of the incompetent therein. About March 6, 1907, Mr. Roosevelt moved for an order to limit and restrict the control of Mr. Andrews over the person of the incompetent, and to place such control either in the joint charge of Mr. Roosevelt and Mr. Andrews or of Mr. Roosevelt and Mr. Andrews and Mrs. Roosevelt, and directing that Mr. Roosevelt and his representatives should have full and free right of visitation and inspection over said incompetent and her property, and enjoining Mr. Andrews from interfering with such visitation or inspection, and directing that all charges for the care and support of the incompetent be incurred in the name of the committee of her property; that before the committee of the person should incur any liability on behalf of the incompetent he should give reasonable notice and confer with Mr. Roosevelt.

Among the papers before me in said proceedings are the affidavits of Dr. Packer, Dr. Chapin, and Nellie Coghlan, a nurse, each verified about March 13, 1907, stating that the incompetent has suicidal impulses, also the affidavit of Bridget Wheatley, nurse, verified March 13, 1907, stating that seeing visitors has a bad effect upon the incompetent, who had manifested suicidal tendencies so that a carpenter was employed to fasten the windows of the residence in Madison avenue, that it was necessary to take her to a sanitarium, and that it was impossible to care for and safeguard her in a private house. Mr. Justice Davis on April 8, 1907, made an order directing that Mrs. Nannie V. Roosevelt be permitted to visit her sister three times each week, that during such visits Mr. Andrews should not be present, and that neither he nor his employés should interrupt nor interfere with such visits. Said order further provided that the present abode of Mrs. Andrews at Dr. Packer's Sanitarium should not be changed without first giving notice in writing to John E. Roosevelt, Nannie V. Roosevelt, and C. J. Sullivan, special guardian, nor without the further order of this court, and that all persons having the care of Mrs. Andrews or control of or access to her should abide by the terms of said order. Upon the brief of the attorney for Mrs. Roosevelt in opposition to any modification of said order he states:

"The incompetent is clearly in no condition to be removed to her home or to be taken care of in a private house. The doctors have stated that she has suicidal tendencies, and that such a tendency is likely to recur. If there was any probability that Mrs. Andrews would recover or would be benefited by a change of abode, Mrs. Roosevelt would be the first to suggest that a change be made.”

And the special guardian in his affidavit of March 14, 1907, states : “I heartily concur in the recommendation made by Dr. Flint that the incompetent should at present be visited but once a week.”

On March 24, 1907, Dr. Austin Flint furnished a certificate as follows:

"The mental unsoundness is chronic, has existed, as I am informed and believe, for several years, and she is not likely to recover."

On July 14, 1907, Dr. Flint certified to the special guardian as follows:

"In view of my examination, I can only say that Mrs. Andrews seems very well off where she is [The Knolls), and that her surroundings seem satisfactory. In her present mental condition, however, I think she would be quite as well off in any other place where she would be as comfortably situated and as well cared for as she is at present. I saw Mrs. Andrews alone.

In the petition of Mr. Andrews for a modification of the order of April 8th appears the following:

"That for several months prior to February 29, 1907, the said Blanche L. Andrews became very much worse, and she displayed marked tendencies to

and 140 New York State Reporter suicide, and it became necessary to fasten the windows of her said residence, 737 Madison avenue, in order to prevent a possible danger to her."

Mrs. Roosevelt's affidavit of July 3, 1907, states the following:

"That all the doctors-and there are many—who have seen her have said that Blanche L. Andrews is probably incurable, and, this being so, common sense would dictate that the least she is disturbed by any changes the better. They simply cannot do her any good, and deponent particularly urges upon the court that it will not disrupt the commitment to The Knolls, as deponent feels it is necessary for the safety of her sister that she should be in the charge of and care of some other than her husband."

In pursuance of an order made by me there is filed herewith the report of Allan McLean Hamilton, M. D., and Constantine J. MacGuire, M. D., which is as follows:

"In conformity with your directions contained in an order dated New York, August 29, 1907, hereto annexed, we, the undersigned, went to the sanitarium of Dr. Flavius Packer, known as "The Knolls,' and situated at 263d street and Broadway, on two occasions, and there examined Blanche L. Andrews, wife of Constant A. Andrews, for the purpose of determining her mental condition, and of answering the questions submitted to us by yourself as follows: "Whether in their judgment her removal to her residence, 737 Madison avenue, New York City, during all or any portion of the year, would aid in the recovery of her health, the restoration of her mind, or promote her mental or physical comfort and well being, or whether her mental malady is incurable, and, if so, which institution, hospital, sanitarium, or private residence in this state, would be for her best advantage as to attendance, care, and treatment, together with their opinions and recommendations as to her reception of her husband, relatives, and friends as visitors. We would respectfully report that we have examined letters and other communications written and prepared by her, certain of her drawings, and the commitment papers and history of her case, as kept by the superintendent of The Knolls. Dr. Hamilton also had a conference with Drs. Lyon and Hoch, of Bloomingdale, regarding her condition while there previously. We found the said Blanche L, Andrews to be suffering from dementia, the result of an insanity which has lasted for several years, and that she has delusions of suspicion and persecution, with the fear that certain persons had intended to poison or maltreat her. The duration of her disease has been such that we believe an institution to be the best place for her mental and physical well being, and, although at present she does not express any violent symptoms of her disease, we feel that from the history and our examination that she is likely, if not properly guarded and restrained, to be dangerous to herself and others. The long duration of her mental malady and the existing dementia and present delusions belong to a chronic affection which is an incurable psychosis. We believe that her removal to her residence, 737 Madison avenue, New York City, would be most unwise. As she seems to be contented and is receiving good care, we see no reason for her removal to any other 'sanitarium, institution, hospital, or private residence,' although we have inquired into the possible advantage of other places to which she might be taken. It is our firm opinion that the reception of her husband, relatives, and friends as visitors' should be regulated by the physician of the institution in whose charge she remains. We would, however, suggest that the visits of her husband and other relatives, should be more restricted than at present; that she should not be taken out of the city and county of New York; that under no consideration should she be asked or urged to sign or copy written documents or letters of any kind, and that she should not be subjected to annoyance or made a party to any family quarrel. It is our belief that if there is the slightest chance for improvement it must depend upon an orderly, systematic life under the management of an institution physician with absolute freedom from stress of any kind. New York, September 12, 1907.".

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