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were, fairly implied that the defendant referred to the purity of the seeds and the freedom from noxious seeds, as the language upon the card clearly did. The words used in the catalogue were at best of doubtful meaning, and could not be regarded as notifying the plaintiff that they had so limited defendant's liability as to require the plaintiff to look specially for the presence of noxious seeds, or. else lose all right to redress for the presence thereof in the oats, except to have his order refilled. The express warranty in the catalogue, and the redress provided for a breach thereof, did not extend to the defect here complained of. In the absence of such an express warranty, there can be no doubt that one would be implied. White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13. And under the facts appearing in this record, as we must assume them to be, there is no reason why it should be said as a matter of law that such warranty did not survive the acceptance and sowing of these oats by the plaintiff. Nor are we willing to say, upon the facts now appearing and under the contract here involved, that a sowing of a small quantity of the oats, after he discovered the presence of some foreign seeds therein, the plaintiff having no knowledge as to their character, operated as an acceptance of the oats under the contract, which the implied warranty did not survive, and therefore no recovery could be had for the damages sustained by the use of such oats, at least, as he had already sowed. The oats delivered to his son, it appears, were purchased for him, and no damages are sought in this action by reason of the sowing thereof.
The views hereinbefore expressed lead us to conclude that the plaintiff's exceptions should be sustained, and the motion for a new trial granted, with costs to the plaintiff to abide event. All concur.
BALLANTYNE V. STEENWERTH. (Supreme Court, Appellate Division, Second Department. January 30, 1903.) 1. EXECUTORS-FULL STATUTORY Costs—LIABILITY-REVIEW.
An order awarding full statutory costs against a defendant executor, pursuant to Code Civ. Proc. 1836, on the ground that the claim was unreasonably resisted or neglected, could not be disturbed on appeal, where the motion therefor was based not alone on the affidavit of plaintiff's attorney, but on all the proceedings in the action, which were not
before the reviewing court. Appeal from special term, Kings county.
Action by Amelia B. Ballantyne against John H. Steenwerth, as executor of Phillip Steichelmann, deceased. From an order granting full statutory costs and disbursements to plaintiff, defendant appeals. Affirmed.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
Fred L. Gross, for appellant.
WILLARD BARTLETT, J. The county court has awarded to the plaintiff full costs against the defendant executor under section and 114 New York State Reporter 1836 of the Code of Civil Procedure. The order cannot be sustained, on the ground that defendant did not seasonably file the consent provided for in section 1822 and in the section cited, because the suit was begun only eight days after the claim was rejected by the exccutor, whereas the executor has five months and twenty days after the rejection to file the necessary consent. Hart v. Hart, 45 App. Div. 280, 61 N. Y. Supp. 131. It would seem, therefore, that the order must have been based upon the alternative proposition that the payment of the claim was unreasonably resisted or neglected, and we cannot say that the learned county judge erred in so holding. The motion was based not alone upon an affidavit of the plaintiff's attorney, but upon all the proceedings in the action. These proceedings are not before us, but were presumably in the mind of the learned trial judge at the time he entertained and decided the motion. The circumstances of the trial may well have shown that the suit was unreasonably defended, and, as we cannot indulge in any presumption to the contrary, the order should be affirmed. All concur.
(79 App. Div. 100.)
ROMER v. KENSICO CEMETERY. (Supreme Court, Appellate Division, Second Department. January 30, 1903.) 1. BILL OF PARTICULARS-DELAY IN SERVICE-ORDER PERMITTING SERVICE
DISCRETION OF COURT-REVIEW.
Order permitting service of further bill of particulars by plaintiff, as required by a former order, will not be disturbed, though there has been great laches on plaintiff's part in serving same, where plaintiff claimed meanwhile to have been negotiating with a former attorney of defendants for a settlement, and defendant had made no very determined effort to
bring the action to trial. 2. Books AND PAPERS-COMPELLING PRODUCTION.
A party cannot be compelled to produce books and papers for examination by the adverse party except in the mode prescribed in Code Civ.
Proc. c. 8, art. 4.
Action by William Romer against the Kensico Cemetery. From an order permitting plaintiff to serve a further bill of particulars, defendant appeals. Modified.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
Thomas D. Husted, for appellant.
WILLARD BARTLETT, J. This action, which is brought to recover compensation for professional services alleged to have been rendered by the plaintiff to the defendant as an attorney at law, was commenced on the 26th day of November, 1895. In December of that year an order was made at special term directing the plaintiff to serve a further bill of particulars of his account for services and disbursements referred to in the complaint. Plaintiff's time for compliance with this order was extended by order and various stipulations until September 7, 1896, when the defendant's attorney refused to grant any further extension. No other step appears to have been taken in the action until the year 1900, when the plaintiff appears to have prepared an amended bill of particulars, and asked the defendant's attorney to accept it. This request was refused, and finally, in 1902, the plaintiff made an application to the court, which resulted in the order appealed from. This order permits the plaintiff to serve a further bill of particulars upon the defendant's attorney forthwith, gives the defendant 10 days from the service of the order within which to serve an amended answer, and provides that the plaintiff may have leave “to examine and copy any receipts defendant may have of plaintiff's in relation to the subject matter of this action. The plaintiff's excuse for the extreme laches herein, as appears from his various affidavits contained in the appeal book, is the expectation, based upon negotiations with the former attorney for the defendant, that a settlement would be effected, although the present attorney for the defendant denies that any such negotiations had been carried on with him. It is apparent that the representatives of the defendant made no very determined effort to bring the action to trial, and we are not disposed to interfere with the exercise of discretion by the learned court at special term so far as that portion of the order is concerned which permits the service of the plaintiff's amended bill of particulars forthwith. It was manifestly proper to accompany this permission with a provision giving the defendant time within which to serve an amended answer if so advised. That part of the order, however, which allows the plaintiff an inspection of papers in the hands of the defendant must be reversed. A party cannot be compelled to produce books or papers for the examination and inspection of the adverse party before trial except in the mode prescribed in article 4 of chapter 8 of the Code of Civil Procedure. Dick v. Phillips, 41 Hun, 603. The plaintiff has not complied in any respect with the requirements of the Code in regard to the discovery of books and papers, and for this reason that portion of the order under review cannot stand.
Order modified by striking out the provision granting leave to the plaintiff to examine and copy the receipts in possession of the defendant, and, as thus modified, affirmed, without costs of this appeal to either party. All concur.
(79 App. Div. 426.)
BRISTOL V. GRAFF et al. (Supreme Court, Appellate Division, Fourth Department. January 6, 1903.) 1. UNDERTAKING--LIABILITY OF SURETY-PRECEDENT EVENT.
An undertaking given to procure discharge of defendant, in an action for fraudulent conversion, from an order of arrest, reciting that obligors "undertake that defendant
will obey the direction of the court or of an appellate court, .contained in an order or a judgment requiring him to perform the act specified in the said order of arrest, or, in default of his doing so, that he will at all times render himself amenable to any mandate which may be issued to enforce a final judgment against him in the action,” makes the liability depend on the precedent event that defendant make default in obeying an order of the court; and the fact that no such direction could be given, and there could, therefore,
and 114 New York State Reporter be no default, does not make the surety liable, though an execution on the money judgment is returned unsatisfied, and an execution against the person returned that defendant could not be found.
McLennan, J., dissenting.
Action by Almon Bristol against Aaron A. Graff, impleaded with another. From a judgment for plaintiff on a verdict, and from an order denying a new trial on the minutes, defendant Graff appeals. Reversed.
Argued before ADAMS, P. J., and McLENNAN, SPRING, WILLIAMS, and NASH, JJ.
Rubin & Tierney and B. J. Stolz, for appellant.
WILLIAMS, J. The judgment and order should be reversed, and a new trial granted, with costs to appellant to abide event.
The action was upon an undertaking given to procure the discharge of James W. Shipman from an order of arrest, under section 575 of the Code of Civil Procedure. The order was made in an action wherein Shipman was defendant and this plaintiff was plaintiff. Graff, the appellant here, was a surety upon the undertaking. The only question of fact submitted to the jury was whether, at the time the undertaking was executed and delivered, it contained the words "jointly and severally.” The undertaking, when produced upon the trial, did not contain those words. They were originally printed in the blank, but had been erased by drawing a pen through them. Upon a conflict of evidence, and after a serious controversy over this question, the jury found in favor of the plaintiff that the undertaking, when executed, was joint and several, as required by the statute (section 812, Code Civ. Proc.). We cannot disturb that finding. There was evidence to support it, and the finding cannot be held to be contrary to the evidence, under the well-settled principles of law governing our action on appeal. Questions of law were, however, raised upon the trial, and are here for our deterinination. One of them seems to be fatal to the plaintiff's right to recover in the action. The order of arrest required the sheriff to hold the defendant to "bail in the sum of $1,500, by a written undertaking, executed by two or more sufficient sureties, to the effect that the defendant shall at all times render himself amenable to any mandate which shall be issued to enforce a final judgment against him in the action.” The action was for a wrong, to recover damages for the fraudulent conversion and misappropriation of moneys or property held by defendant in a fiduciary capacity, and the demand for relief was the recovery of money only. In such an action the bail could only be by an undertaking, under subdivision 3, § 575, Code Civ. Proc.; and the order of arrest correctly so directed, using the precise language of that subdivision. The defendant was arrested by the sheriff of Cortland county, and, desiring to give the bail required, went with the sheriff to the county judge's office. Plaintiff's attorney was there present, and also the attorney for the defendant, and his surety, Graff, the appellant. The county judge for some reason furnished a blank undertaking in the form used under subdivision i instead of subdivision 3 of the section of the Code in question. The attorney for the defendant undertook to fill up the blank, and to make it conform to subdivision 3, by erasures and interlineations in the printed form. He allowed the matter required by subdivision 1 to remain down to the words, “proceedings to punish him for the omission," erased these words, and then added the words required by subdivision 3, so that the undertaking, as prepared for execution, read as follows: "Undertake in the sum of $1,500 that the defendant, James W. Shipman, will obey the direction of the court or of an appellate court contained in an order or a judgment requiring him to perform the act specified in the said order of arrest, or, in default of his so doing, that he will at all times render himself amenable to any mandate which may be issued to enforce a final judgment against him, in the action.' The undertaking, in this form, was executed, the county judge taking the acknowledgments, and the sheriff accepted the same, and discharged the defendant from arrest. The action proceeded to judgment in the usual form for money only. An execution against property was issued, and returned unsatisfied, and an execution against the person was issued, and returned to the effect that defendant could not be found. This action was then commenced.
It is claimed that no default was made under this undertaking entitling plaintiff to recover against the surety Graff; that he did not undertake that Shipman would unqualifiedly render himself amenable to a mandate to enforce the judgment, but that he would render himself so amenable only in case of his default in obeying the direction of the court or an appellate court, thereinbefore referred to; and no such default was shown, or could be shown. No such direction could be given by the court in the action. If the undertaking had been to the effect that he would obey the order of the court, and render himself amenable to a mandate to enforce the judgment, it might be held that the provision as to obeying the direction of the court imposed no obligation in such form of action; that the words were merely surplusage, and could be disregarded as such, and effect given to the remaining words, which were sufficient under subdivision 3 of the section. We do not, however, see how the peculiar language used in this undertaking can be disregarded, and the liability held to be unqualified that Shipman shall render himself amenable to a mandate to enforce the judgment in the action. If we attempt to disregard the objectionable words, and to read the balance as indicating the real undertaking, we thereby change materially the obligations of the surety, and this we are not permitted to do. In Post v. Doremus, 60 N. Y. 371, there was an appeal to the court of appeals from an order made by the general term granting a new trial. An undertaking was given to perfect the appeal, and also to stay proceedings; the latter part providing that, if the judgment appealed from should be affirmed, or the appeal be dismissed, the appellant would pay the amount directed to be paid by the judgment, etc. It was held this latter part of the undertaking created no liability of the sureties; that such liability was dependent upon the occurrence of a precedent event; that the judgment appealed from should be affirmed, but that event could never occur, because no judgment was appealed from, and none could be affirmed. In Associa