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that the said letter was not a privileged communication, then the sending of it to Cornish would be a complete publication.
The defendants further claim and insist that the alleged defamatory letter contains no matter which is libelous per se as against the complainant. As to whether this contention is true or not, I think there is at least enough doubt about it to make it a question of fact for the jury instead of a question of law for the court.
Undoubtedly most of the questions raised upon the demurrer and the motion to dismiss may be again raised on the trial upon the merits, where they can be more properly disposed of than upon a demurrer or a motion to dismiss. The motion to dismiss is denied, and judgment ordered for the people on the demurrer, with leave to the defendants to answer over.
(4 Misc. Rer. 602; mem. report without opinion.) HEALTH DEPARTMENT OF CITY OF NEW YORK V. HAMM. (Common Pleas of New York City and County, General Term. August 9, 1893.) BUILDING IN CITY-HEALTH REGULATIONS-PENALTY FOR VIOLATION.
Deviation from the plans of a building as approved by the health department of New York city, for which a penalty is provided by Laws 1882, C. 410, § 665, is not excused by the permission of an inspector of the department, which he had no authority to give. Appeal from third district court.
Action by the health department of the city of New York against Howard D. Hamm to recover the penalty of $10 per day providel for by section 665 of the consolidation act, (Laws 1882, c. 410.) and incurred by defendant for having erected a building in violation of the plans and specifications as approved by the health department in the city of New York, pursuant to authority conferred by the act, (section 660 et seq.) From a judgment for plaintiff, defendant appeals. Affirmed. Argued before BISCHOFF and GIEGERICH, JJ. Earley & Prendergast, for appellant. Eugene Otterbourg, for respondent.
BISCHOFF, J. The evidence is, in our opinion, conclusive that defendant's buildings were not constructed, in respect to light, air, ventilation, and drainage, agreeably to the plans and specifications approved by the health department in the city of New York, pursuant to the authority vested in it at the time by the consolidation act, (Laws 1882, c. 410, § 661.) In fact, so far as the cellar arches and supporting columns were concerned, this was conceded by de fendant, whose only excuse for having deviated from the approved plan was that it was permitted by an inspector of the health de partment, but whose authority to grant such permission, thus nullifying the resolution of the board, was not even attempted to be sustained by defendant. It was also admitted by defendant that the skylight over the main stairs, which the plan required, was not provided for. The judgment should be affirmed, with costs.
(4 Misc. Rep. 522.)
LYNES v. HICKEY. (Common Pleas of New York City and County, General Term. August 9, 1893.) REVIEW ON APPEAL-WEIGHT OF EVIDENCE.
The decision of a justice of the district court on the facts in a case will not be interfered with on appeal unless the evidence is so convincing as to clearly indicate that there was a mistake on his part; that he was influenced by bias, passion, prejudice, or corruption; or that he neglected to deliberate on the whole testimony presented. Appeal from eighth district court.
Action by Isabella B. Lynes against William Hickey. From a judgment for plaintiff, defendant appeals. Affirmed.
Argued before BISCHOFF and GIEGERICH, JJ.
GIEGERICH, J. This action was brought to recover rent, under a written lease, of a portion of the premises known as "No. 381 Sixth Avenue,” in this city. The defendant claims to have been evicted therefrom by the act of the plaintiff, but, as there is a conflict of evidence in respect of the matters which are claimed to constitute the eviction, we will not interfere with the judgment of the justice, unless the evidence is of such a convincing character as to clearly indicate that there was a mistake on the part of the justice, or that he had been influenced by bias, passion, prejudice, or corruption, or that he had manifestly neglected to deliberate upon the whole testimony. Schwartz v. Wechler, (Com. Pl. N. Y.) 2 Misc. Rep. 67, 20 N. Y. Supp. 861, and cases cited. satisfied, after a most careful examination of the record, that the evidence in this cause does not lead to such a conclusion. The reversal of the judgment is sought solely upon the facts, and, as we cannot discover any ground for disturbing the justice's determination thereof, the judgment should be affirmed, with costs.
(4 Misc. Rep. 543.) OWITER V. METROPOLITAN LIFE INS. CO. (Common Pleas of New York City and County, General Term. August 10,
1893.) INSURANCE AGENT-CONTRACT OF EMPLOYMENT_INSPECTION OF ACCOUNTS.
Where an insurance agent agrees in his written contract of employment that the state of his accounts shall be determined by an inspection of his books, and that such inspection, made by an authorized agent of the company, shall be binding on him, the result of such inspection is conclusive, and he caunot introduce evidence attacking the inspector's report. Appeal from fourth district court.
Action by Leo Owiter against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed.
Argued before BISCHOFF and GIEGERICH, JJ.
Arnoux, Ritch & Woodford, (William H. Arnoux, of counsel) for appellant.
Wm. John Warburton, for respondent.
GIEGERICH, J. This action was brought by an agent of the defendant company to recover the sum of $50 deposited as security for honesty in the course of his employment. The plaintiff entered the defendant's employ as agent of its branch in this city upon the 23d day of September, 1892, and left it on the 4th of January, 1893. The sum in suit was paid by him when he entered upon such em. ployment. The compensation attached to the position of agent, according to the terms of the contract, was of two kinds, viz.: An "ordinary salary" of 15 per cent. upon the amount actually collected and paid in by the agent to the company, and a “special salary," according to the following terms:
"The special salary shall be fifteen times the amount of the net weekly increase of collectible debit in my agency. Net increase of collectible debit is the excess of new business obtained by and credited to me over policies lapsed and charged against me on the books of the company, either durin; the continuance of my agency or within six weeks after the official transfer in the books of the company of the business of my agency."
It appeared that plaintiff had been previously employed in the capacity of agent by defendant's Brooklyn branch under a like contract of employment. The provisions with reference to compensation were identical in the two contracts, and each contained a clause providing for the determination of the state of the account between the company and the agent in the following terms:
“I agree that the condition of my account with the company, either before or after the termination of my employment by the company, shall be ascertained and determined by an inspection of my weekly accounts, or my ledger, and by my collection book, or by the premium receipt books of the policy holders included in my debit. Such inspection may be made at the direction of the company at any time, with or without notice to me, and by :ins person authorized by the company to make it; and when made, whether before or after the termination of my agency, and whether I shall be present at the inspection or not, I agree that the actual condition of my account with the company shall be determined by the report of the inspection as it shall be made by the authorized person aforesaid, as he shall compute the same from his entries in the inspection book. And I hereby give such employe who shall inspect my agency as aforesaid full power and authority to compute the sui due by me to the company as it shall appear upon such inspection by him, and I hereby ratify his computations, and agree that the result thereof shall represent my indebtedness to the company, hereby waiving the production of any evidence other than such report and account."
There was a condition of the employment whereby the agent was to be charged with the amount of lapsed policies which he had solicited in the same degree as such policies had formed the basis for special compensation, and defendant set up a counterclaim upon the difference of account in its favor by reason of such condition, which counterclaim is based upon an indebtedness under both contracts. Evidence as to the amount of such indebtedness was given by the defendant's auditing officers. Evidence was also given by defendant that an amount in excess of plaintiff's claim was due from him
to defendant upon his contract of employment in the New York branch. The evidence given upon these points was that of authorized officers of the company. As to their authority there is no contradiction. As to the amount due the company under the Brooklyn contract, such indebtedness was shown to be $132.60, but the plaintiff testified that when he left that employment everything was settled; that he did not owe the defendant one cent; and that he was all clear. Nevertheless, under his contract, he could be charged with lapses occurring thereafter; and as to the amount of such lapses the report of the person or persons authorized by the company to make an inspection of the plaintiff's weekly accounts in his ledger was conclusive, under the seventh paragraph of the contract as appears above. In submitting the case to the jury, the learned justice should therefore have charged, as requested, that the plaintiff was bound by the statements of the company's officers; and it cannot be reasonably said that the defendant's case was not prejudiced by this error. Again, the evidence given by the defendant as to plaintiff's indebtedness under the New York contract was uncontradicted, and, at all events, we think that a verdict should have been directed in defendant's favor for the amount so proved, less any sum which they may have found to be due to the plaintiff from the defendant. The witness so testifying was not an interested witness in the sense which would require the submission of his testimony to the jury, in order that his credibility should be passed upon. He testified in the course of his duties as the arbiter appointed by the plaintiff under his contract, to decide this very question of account. His uncontradicted testimony was conclusive. See Plyer v. Insurance Co., 121 N. Y. 692, 24 N. E. Rep. 929. The errors above pointed out necessitate a reversal of the judgment, and a consideration of any other questions arising upon this appeal is not necessary. The judgment should be reversed, and new trial ordered, with costs to abide the event.
(4 Misc. Rep. 523.)
SPINGARN et al. v. ROSENFELD. (Common Pleas of New York City and County, General Term. August 9, 1893.) 1. ACTION ON PARTNERSHIP AGREEMENT—WHO MAY SUE-CREDITORS.
A provision in a copartnership agreement that the sum owing by one of the copartners for merchandise contributed by him to the copartnership shall be paid by the firm will be construed as made for the benefit of the persons to whom such sum is due, and they may sue the firm on such
agreement. 2. SAME-PAROL EVIDENCE.
In an action on a provision in a written copartnership agreement that the firm should pay the sum owing by one of the members for goods contributed by him to the firm, evidence that there was an oral understanding that such assumption of debts by the firm should apply only to a claim other than the one sued on is inadmissible. Appeal from seventh district court.
Action by Elias Spingarn and others against Albert Rosenfeld, surviving inember of the firm of Swyke & Rosenfeld, to recover
on an assumption by such firm of a claim against one of the part
From a judgment for plaintiffs, defendant appeals. Affirmed. Argued before BISCHOFF and GIEGERICH, JJ. A. H. Sarasohn, for appellant. Morris W. Hart, for respondents.
BISCHOFF, J. Plaintiffs, who were dealers in tobacco, sold a bale of Sumatra tobacco to Samuel Swyke, who promised to pay them the sum of $333 therefor. Swyke then entered into copartnership with Albert Rosenfeld, and contributed his stock of merchandise towards the stock of the new firm. Articles of copartnership were executed by the partners, which, among other things, provided as follows:
"It is hereby agreed between the parties hereto that the sum of six hundred dollars, now owing by Samuel Swyke, one of said copartners, for ac count of the merchandise contributed by him to said copartnership, shall be paid by said copartnership firm of Swyke & Rosenfeld.”
Shortly afterwards Swyke died. One hundred and sixty-six dol. lars, in the mean while, had been paid plaintiffs on account of their claim, and they brought this action to recover the balance from Rosenfeld as surviving member of Swyke & Rosenfeld. On the trial, plaintiffs contended that the bale of tobacco which they had sold to Swyke was a part of the merchandise which the latter had contributed towards the stock of the firm, and that the firm also had made the payment of one-half of their claim against Swyke. Those contentions were severally supported by sufficient evidence, and, though there was some conflict regarding the facts, it must be assumed for the purposes of the judgment appealed from that this conflict was determined by the justice adversely to defendant.
We are of the opinion that, upon the facts in evidence and found by him, the justice's conclusion is proper, and that the judgment should be affirmed. The case is not to be distinguished materially from that of Arnold v. Nichols, 64 N. Y. 117. There one J. M. Bowen entered into copartnership with one Charles H. Nichols, under the firm name of J. M. Bowen & Co., and transferred his business assets to the firm, in consideration of which the latter assumed and agreed to pay certain specified debts of his, among which was a debt due Hinman, plaintiff's testator. Reversing a judgment of the general term of the supreme court, which reversed a judgment for plaintiffs, the court says:
"Bowen transferred to the firm the assets to which his creditors had the right to look for the payment of their claims, and hence the promise of the firm to pay such claims must be deemed to have been made for their benefit It was not made to exonerate Bowen from the payment of his debts, and not primarily nor directly for his benefit, as his property was to be taken to pay the debts, and he was still to remain liable as one of the principals to pay them.
This case is therefore unlike the case of Merrill v. Green, 55 N. Y. 270, and the action is maintainable upon the principles laid down in the case of Lawrence v. Fox, 20 N. Y. 268, and also recognized in Burr v. Beers, 24 N. Y. 178; Thorp v. Coal Co., 48 N. Y. 253, and Claflin v. Ostrom, 54 N. Y. 581. Hinman had the right to adopt the promise made expressly for his benefit."