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March 5, 1907, while he was "working at or near one of said machines, he was seriously injured” by a portion of his thumb being cut off; that said injury was caused by reason of a defect in the condition of the ways, works, or machinery connected with or used in the business by the defendant. Defendant moved for a bill of particulars, and the same was granted in so far as to require the plaintiff to state "whether he was in the act of operating the machine at the time of the alleged injury, and the nature and character of his business which he has been prevented from attending, and the amount of his income, profits, or wages which he has been prevented from earning, and the amounts paid for physicians and medical services.” In all other respects the motion was denied.
In addition to the particulars ordered by the court, plaintiff should have been required to specify: (1) Whether or not it is claimed at the time of the accident he was put to work to operate the machine, and what he was directed to do, and also (2) in what respect it is claimed the ways, works, or machinery connected with or used in the business by the defendant were defective. Causullo v. Lenox Construction Company, 106 App. Div. 575, 94 N. Y. Supp. 639; King v. Brookfield, 72 App. Div. 483, 76 N. Y. Supp. 604; Daly v. Bloomingdale, 71 App. Div. 563, 76 N. Y. Supp. 131 ; Dwyer v. Slattery, 118 App. Div. 345, 103 N. Y. Supp. 433. The defendant is clearly entitled to the information he seeks to avoid surprise upon the trial, and in order that he may fairly meet the issue tendered by plaintiff.
The order appealed from should be modified, so as to include therein, in addition to what has already been allowed, the two specifications herein mentioned, and, as so modified, affirmed, with costs to appellant to abide the event. All concur.
PLATT V. PLATT. (Supreme Court, Special Term, New York County. October 19, 1907.) DIVORCE-ISSUES FOR JURY.
There is no authority for submitting to a jury the issue in a divorce suit as to whether the parties were married at a certain time and place; such submission being proper in such a suit only as to the issue of adultery.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, § 484.) Action by Mae C. Wood Platt against Thomas C. Platt for divorce. Plaintiff moves for an order framing issues and directing a trial thereof by a jury. Motion denied.
Joseph Day Lee, for the motion.
O'Brien, Boardman, Platt & Dunning (John B. Stanchfield, of counsel), opposed.
SEABURY, J. The only issue raised by the pleadings in this action is whether the "plaintiff was married to defendant on or about November 9, 1901, at the Fifth Avenue Hotel, in the city and county of New York.” There is no authority for the submission of this issue to a jury upon this motion, and the practice of submitting any issue other than that of adultery to a jury in an action of this charand 140 New York State Reporter acter has been distinctly disapproved by the Appellate Division of this department. Bush v. Bush, 103 App. Div. 588, 93 N. Y. Supp. 159; Packard v. Packard, 88 App. Div. 339, 84 N. Y. Supp. 1090; Wilcox v. Wilcox, 116 App. Div. 423, 101 N. Y. Supp. 828.
Motion denied. Settle order on notice.
In re ANDREWS.
(Supreme Court, Special Term, New York County. November 25, 1907.) INSANE PERSONS-COMMITTEE OF ESTATE-SUBSTITUTION.
Where there have been grave disagreements and entire lack of barmony between the members of the committee of an insane person, resulting in expensive and unnecessary litigation, and it is not clear that the announced understanding between such members has for its main consideration the welfare of the incompetent, or that the truce is more than temporary, a disinterested and well-qualified committee should, in the interest of the incompetent, to the promotion of which the action of the court is confined, be substituted.
[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Insane Persons, § 57.) In the matter of the guardianship of Blanche L. Andrews, an insane person. Substitution of committee of estate ordered.
For former report, see 106 N. Y. Supp. 13.
Parker, Hatch & Sheehan, for Constant A. Andrews and Blanche L. Andrews.
George C. Kobbe, for Nannie V. Roosevelt.
DAYTON, J. Grave disagreements and violent conflicts between the two surviving members of the committee of the estate of this incompetent and an entire lack of harmony between said committeemen, which have resulted in expensive and unnecessary litigation and were seriously detrimental to the interests of the said estate, rendered obligatory the disposition by the court of all the matters in controversy, so that the interests of its ward, the incompetent, should be safeguarded and subserved. This decision was handed down on September 16th last. I am now informed, upon the settlement of the order, that Messrs. Roosevelt and Andrews, the disagreeing committeemen, have come to an understanding in the premises. Indeed, the proposed order submitted by counsel for Mr. Roosevelt contains a recital to the effect that the "court is convinced that all causes of friction and inharmonious relations between the present members of the committee of the estate and between the committee of the estate and Mrs. Nannie V. Roosevelt have been entirely removed, and to that end that any and all pending litigation in reference to the estate and person of said incompetent person is to be terminated at once, and that the welfare of said incompetent and her estate will be fully protected, and that re-establishment of harmonious relations between the members of the committee of the estate and the sister and only next of kin of said incompetent person has obviated any necessity for removal of the committee
of the estate and the appointment of a new committee.” It has not, however, been made clear to the court that this understanding so recently arrived at has for its main consideration the welfare of the incompetent, nor am I satisfied that this truce is more than a temporary arrangement, which may at any moment be abrogated and a resumption of hostilities ensue. The proposed order above mentioned contains a further clause wherein it is “ordered that the said John E. Roosevelt and Constant A. Andrews, as such committee of the estate of said incompetent person, be authorized, empowered, and directed to vote or cause to be voted the 1,714 shares of stock of the Elkhorn Valley Coal Land Company belonging to said Blanche L. Andrews at any annual or special meeting of the stockholders of such company in such manner as shall be deemed best for the interest of the said incompetent, and in the event of either of said committee of the estate being elected president or vice president of such company to receive the salary fixed and allowed to such officer without being accountable for said salary to said committee of the estate.” Should further disagreement occur, the complications which might arise from this provision and the possibilities of disaster to the estate of the incompetent may be readily surmised. Courts will always favor an adjustment of differences between litigants, where the issues involve their personal interests or property. Mr. Roosevelt and Mr. Andrews, however, have only expectancies, dependent upon the survival of one or the other at the death of the incompetent.
Thus the action of the court is confined to the promotion of the welfare of the latter, and therefore, being still of the opinion from the record before me that the relations existing between Messrs. Roosevelt and Andrews “are such as to render their cordial joint action out of the question," and that a disinterested, well-qualified committee of the estate should be substituted, the order proposed by counsel for Mr. Andrews, as amended, has been signed.
HUSCH v. PARMIGIANI et al.
(Supreme Court, Special Term, New York County.) ELECTIONS-PRIMARY ELECTIONS-RECANVASS—JUDICIAL REVIEW.
Under Primary Election Law, Laws 1898, p. 356, c. 179, $ 12, conferring on the court the right to review by mandamus or certiorari or in a summary manner the action of primary election inspectors, etc., on complaint of any citizen, the court has jurisdiction to review the action of pri
mary election inspectors, set aside a canvass, and direct a recanvass. Petition by George S. Husch against Joseph Parmigiani and others, constituting the board of primary election inspectors, and John T. Dooling and others, constituting the board of election, to set aside a primary election canvass and to compel a recanvas9. Granted.
This is an application made to set aside the returns of the canvass made by the board of Republican primary inspectors of the Eleventh and Twelfth election districts of the First assembly district of New York county, and for the court or one of the justices thereof to adjudge the true result, and to that end order the board of election to produce, before the court or one of the justices thereof, the returns as filed by said board of inspectors, and the ballot box
and 140 New York State Reporter or boxes containing the ballots voted at said primary election, and also the package containing the void and protested ballots, and, further, that said board of inspectors be directed to reconvene and make and sign a true statement of the result, and forthwith file the same, and that the board of election be directed to canvass the corrected statement to be made by the said board of primary inspectors, and correct their canvass in accordance therewith, and issue a certificate of election to the person lawfully entitled thereto. Objection was made to the jurisdiction of the court to entertain the proceeding.
Hoadley, Lauterbach & Johnson, for petitioner.
SEABURY, J. Section 12 of the primary election law (Laws 1898, p. 356, c. 179) clearly imposes upon the court, upon the complaint of any citizen, the duty of reviewing the action or neglect "of any inspector of primary election or of any public officer or board, with regard
to any right given to or duty prescribed for any elector, political committee, political convention, officer or board.” In such a case the statute provides that such action or neglect shall be reviewable not only by mandamus or certiorari, but that in addition to these remedies the Supreme Court or any justice thereof within the judicial district "shall have summary jurisdiction.” The statute also provides that:
"In reviewing such action or neglect the court, justice or judge shall consider, but need not be controlled by, any action or determination of the regularly constituted party authorities upon the questions arising in reference thereto, and shall make such decision and order as, under all the facts and circumstances of the case, justice may require."
The court has given full consideration to the returns of the inspectors of the primary election, the statements contained in the affidavits presented by the petitioner, and those presented in the answering affidavits, and has concluded that justice requires that the board of inspectors should immediately reconvene and adjudge the true result, and make and file a statement of the result as so adjudged, and issue certificates to those lawfully elected.
The board of inspectors having reconveyed, and the ballot boxes being opened in the presence of the court, and the ballots counted, the court rendered the following opinion:
SEABURY, J. In this proceeding the ballots cast at the Republican primary election in the Fifth, Sixth, Eleventh, and Twelfth election districts of the First assembly district were recounted. The result discloses an extraordinary condition of affairs. The ballot box for the Fifth election district was found to be empty, and the ballots that it should have contained were placed in the ballot box of the Sixth election district. The returns made by the inspectors were shown to be grossly false. In the four election districts specified the inspectors' returns gave to the petitioner 31 votes; whereas, a recount shows that he was entitled to 132 votes. The returns gave the petitioner's opponent 251 votes; whereas, in fact, he was entitled to only 124 votes. This condition should be inquired into by the grand jury, and I therefore
instruct the attorney for the petitioner to bring these facts to the attention of the district attorney of the county.
The motion made by the petitioner is granted.
PIZZUTIELLE V. GRAHAM.
(Supreme Court, Appellate Term. November 29, 1907.) 1. SALES–PARTIES-ACTION FOR VALUE-EVIDENCE.
In an action for goods sold, where it is shown that plaintiff was the owner of the goods, defendant's testimony that he supposed he was dealing with plaintiff as an officer of a corporation is not controlling; nor is it competent, for, having obtained the property, defendant cannot hold it
and yet refuse to pay for it. 2. SAME.
The owner of stone, sold by him to defendant, can recover its value, even though he did not at the time of the sale inform defendant of his ownership, and defendant supposed plaintiff was acting as an officer of a
corporation. 3. SAME-DEFENSES.
Where a corporation officer in his individual capacity sold stone to de fendant, defendant could not defeat an action for its value merely because he had a claim against the corporation and supposed plaintiff made the sale in his official capacity. Appeal from Municipal Court, Borough of the Bronx, Second District.
Action by Donato Pizzutielle against Robert Graham. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.
Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLANGER, JJ.
Milton Mayer (Sam. M. Fischer, of counsel), for appellant.
ERLANGER, J. The action was brought to recover for goods sold and delivered. The answer contains a general denial. The plaintiff in his behalf testified that he sold to the defendant bluestone to be used in the latter's building then in process of erection. The defendant admits that bluestone was used in his building, but testified that he thought, when the contract of purchase was made, that he was dealing with the plaintiff as an officer of a corporation known as the “Borough Cut Stone Company,” and not as individual, and that he supposed that the bluestone delivered came from such company. It appears that shortly before the agreement for the bluestone in suit was made a written contract was entered into by defendant with the company whereby it agreed to furnish to him certain limestone and bluestone steps, coping, and base, etc. This agreement on the part of the company was signed, "The Borough Cut Stone Company, D. Pizzutielle, Treas." The defendant contends that said company did not abide by its agreement, and by reason thereof he has some claim against it. Plaintiff states that when, in October, 1904, he sold to the defendant the stone for which this action was brought, he was the