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and obtain what, under the judgment and his relation to his client, he is entitled to have.

The order should be affirmed, with $10 costs and disbursements. All concur.

JOSEPH BECK & SONS y. TYNBERG.

(Supreme Court, Appellate Division, First Department. November 1, 1912.) PLEADING ($ 323*)_BILL OF PARTICULARS-PROOF,

Where an order requiring a bill of particulars stated that, if as to any matters the plaintiff had no knowledge or information, a statement to that effect should be incorporated in the bill, the plaintiff could properly introduce testimony upon an item of the bill to which the reply was that it had no knowledge or information sufficient to give the information there required.

[Ed. Note.–For other cases, see Pleading, Cent. Dig. $8 976–979; Dec. Dig. $ 323.*] Appeal from Special Term, New York County.

Action by Joseph Beck & Sons against Sigmund Tynberg. From an order granting a motion to preclude plaintiff from giving evidence as to matters set forth in a paragraph of a bill of particulars, plaintiff appeals. Order reversed, and motion denied.

See, also, 150 App. Div. 926, 135 N. Y. Supp. 1120.
Argued before INGRAHAM, P. J., and CLARKE, SCOTT, MIL-
LER, and DOWLING, JJ.

Julian A. Leve, of New York City, for appellant.
Samuel P. Goldman, of New York City, for respondent.

PER CURIAM. The order requiring a bill of particulars stated that, if as to any of these matters the plaintiff has no knowledge or information, a statement to that effect be incorporated in said bill of particulars. In answer to the demand contained in paragraph 4, the plaintiff stated that it had no knowledge or information sufficient to enable it to give the information there required, and therefore, as the plaintiff complied with the terms of the order requiring a bill of particulars in that regard, the court below should not have precluded it from offering proof in relation thereto.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

SIEBRECHT V. SIEBRECHT, (Supreme Court, Appellate Division, Second Department. November 1, 1912.) 1. MONEY LENT ( 7*)-EVIDENCE-PRIMA FACIE CASE.

A plaintiff, suing to recover for money loaned, who introduced in evidence her check, made payable to the order of defendant and collected

by him, and who testified that the check was given as a loan out of *For other cases see same topic & $ NUMBER In Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

137 N.Y.S.-68

funds standing to her credit in the bank on which the check was drawn, and that the loan had not been repaid, established a prima facie case.

(Ed. Note.--For other cases, see Money Lent, Cent. Dig. 88 11-13; Dec.

Dig. $ 7.*] 2. MONEY LENT ($ 7*)-EVIDENCE-SUFFICIENCY,

In an action to recover for money loaned by plaintiff to defendant, evi. dence held not to sustain a verdict for plaintiff.

[Ed. Note.-For other cases, see Money Lent, Cent. Dig. 88 11-13;

Dec. Dig. $ 7.*] 3. MONEY LENT (8 7*)-EVIDENCE-BURDEN OF PROOF.

A plaintiff, suing to recover for money loaned, has the burden of establishing the loan by a fair preponderance of the evidence.

[Ed. Note.-For other cases, see Money Lent, Cent. Dig. $8 11–13; Dec. Dig. $ 7.*] Appeal from Westchester County Court.

Action by Julia W. A. Siebrecht against Henry A. Siebrecht. From a judgment for plaintiff, and from an order denying a new trial on the minutes, defendant appeals. Reversed, and new trial ordered.

Argued before JENKS, P. J., and THOMAS, CARR, WOODWARD, and RICH, JJ.

J. M. Gardner, of New York City, for appellant.
Henry G. K. Heath, of New York City, for respondent.

WOODWARD, J. The plaintiff is a daughter-in-law of the defendant, and brings this action to recover two items, one of $700, alleged to have been loaned to the defendant on the 10th day of January, 1906, and the other for $353.17, alleged to have been loaned September 28, 1907. She has recovered for the full aniount of both claims, and the defendant appeals from the judgment, and from the order denying his motion for a new trial on all of the grounds specified in section 999 of the Code of Civil Procedure.

[1] The plaintiff makes a prima facie case, in so far as the $700 item is concerned, by introducing her check, made payable to the order of the defendant and collected by him, and her testimony that the same was given as a loan out of funds standing to her credit in the bank on which the check was drawn, and that it has not been repaid.

12] The defendant, however, denies that he ever borrowed this sum of money from the plaintiff. His story of the transaction is that he was doing business as Siebrecht & Son, though the evidence discloses that the plaintiff's husband, who is one of defendant's sons, was not a partner in the business; that this son was employed as an agent in the defendant's nursery business, being paid a salary and 5 per cent of the profits upon his transactions; that this son collected a sum of money, $763.25, from one of defendant's customers, and placed it in a bank to the credit of his wife, the plaintiff; that subsequently this came to the attention of the defendant, and he asked the son to return the money, and that the son requested his wife to give a check for the $700 in controversy, which she did, the son writing the check and the wife signing the same; that later in the day it developed that the plaintiff did not have $700 in the bank on which *For otber cases see same topic & $ NUMBER In Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the check was drawn; that this fact was communicated to one See, the defendant's general financial man, and that Mr. See then took three checks belonging to the defendant, and which had been paid in on account of rents due to him, and deposited them to the credit of the plaintiff's account, so that the check might not be dishonored.

That these checks, aggregating $700, were so deposited, is evidenced by the deposit certificates and the books of the bank, and the evidence is not disputed. It might be gathered from the evidence that plaintiff's husband had authority to indorse checks for collection-even that he had, by custom, the authority to make use of the proceeds on account of his commissions, which were subject to adjustment; so that it might be contended that, if the sum collected from the customer had been in the bank to the credit of the plaintiff, she might have had good title to it, it being in evidence that she had been informed of this collection and of its deposit in her name. But when it is made to appear that this money had been withdrawn, that it was known to See, on the day that the $700 check was given, that her account had less than $20 standing to her credit, and that the funds necessary to meet the check were deposited in her name by Mr. See, it is difficult to understand how the jury could find that the defendant owed the plaintiff any money on account of this alleged loan. Seven hundred and sixty-three dollars of the defendant's money had been deposited to her credit, with her knowledge, which belonged rightfully to him. She gave a check for $700 to her husband for defendant, for the purpose of restoring the greater part of this $763, and, when defendant's agent found that the check was not going to be taken care of, he deposited $700 in checks belonging to the defendant in the plaintiff's account to meet this check, so that the defendant has not only paid the check for which the plaintiff had no funds, but he is charged with the amount over again by the verdict of the jury.

At least the overwhelming weight of the evidence is in support of the defendant's contention. The mere fact of the giving of the check and its payment, unexplained, might support the verdict of the jury; but when it is shown by the documentary evidence that exactly the transaction took place which the defendant asserts, and the plaintiff is unable to establish that she had any funds of her own on hand with which the check might have been paid, it is asking too much of credulity to accept the theory that the plaintiff loaned the defendant $700. The

very fact that she testifies that she never asked him to pay this amount, alleged to have been loaned in 1906, until the bringing of this action in July, 1911, and that she demanded of the defendant the sum of $353.17, alleged to have been loaned in 1907, without in any manner suggesting that he owed any other or further sum, is persuasive evidence that the plaintiff did not believe that she had ever made this alleged loan, and the entire history of the affair tends to show that the plaintiff was prompted to assert this claim only after certain domestic troubles had intervened, and when she was willing to put forward a colorable loan to serve her own purposes.

(3] The evidence in support of the second item of $353.17 is rather more direct, and it might possibly have justified the verdict of the

jury, standing by itself; but the whole case appears to us to be lacking in the element of essential justice, and the evidence, in so far as it relates to the $700 transaction, is so overwhelmingly against the contention of the plaintiff, on whom rested the burden of establish ing her claim by a fair preponderance of the evidence, that we feel that the questions involved should be submitted to another jury.

The judgment and order appealed from should be reversed, and a new trial ordered, costs to abide the event. All concur.

In re LAIDLAW et al.

(Supreme Court, Appellate Division, Second Department. November 15, 1912.) 1. EMINENT DOMAIN (§ 167*)--PROCEEDINGS—COMPLIANCE WITH STATUTE.

Since a proceeding to lay out and extend a street and assess the benefitted property is in invitum, all material statutory provisions must be strictly complied with therein.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. $$ 451

456; Dec. Dig. § 167.*] 2. EMINENT DOMAIN ($ 174*)-EXTENDING STREETS-PROCEEDINGS-TIME FOR

APPLICATION.

Highway Law (Consol. Laws 1909, c. 25) $ 193, provides that an application to the County Court for an order appointing commissioners to de termine the necessity of a proposed highway and assess damages for the improvement shall be made within 30 days after presenting the application to the town superintendent of highways. Though 43 days had elapsed after an application to extend a highway was presented to the town superintendent, without any application having been made to the County Court, applicants applied to him for a written admission of service of the application as of a date which would give the applicants time to apply to the County Court for an order appointing commissioners, etc., within the 30-day period specified by the statute, which admission the town superintendent signed. Held, that the town superintendent had no power to waive the provision requiring the application for an order appointing commissioners to be made within 30 days after presenting the application to him, so that the County Court had no power to make the order appointing commissioners because of failure to apply for it within time.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. $$ 475, 476; Dec. Dig. & 174.*]

Appeal from Suffolk County Court.

In the matter of the application of George Q. Laidlaw and Frank Rogers to lay out, alter, and extend Newport Avenue, a highway in the Town of Islip, and an assessment of damages therefor. From an order denying a motion to vacate certain orders appointing commissioners, etc., certain property owners appeal. Reversed, and motion granted.

Argued before JENKS, P. J., and THOMAS, CARR, WOODWARD, and RICH, JJ.

W. K. Post, of New York City, for appellants.

George H. Furman, of Patchogue, for respondents. *For other cases see same topic & $ NUMEER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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CARR, J. On September 7, 1910, George Q. Laidlaw and Frank Rogers served upon Frank H. Call, town superintendent of highways, a written application, as provided by section 192 of the Highway Law (Consol. Laws 1909, c. 25), for the extension of a highway in the town of Islip, in Suffolk county. By section 193 of said statute it was provided that an application to the County Court for an order appointing commissioners to determine the necessity of the proposed highway and to assess damages for the improvement shall be made within 30 days "after presenting the application to the town superintendent" (of highways). No step was taken in the County Court within 30 days after the application had been presented to the town superintendent; but on October 20th-i. e., 43 days later—the attorneys for the applicants applied to the town superintendent for a formal written admission by him of service of the application as of October 20th, which admission was given, although no other application had been filed with him than that of September 7th. The town superintendent was informed at the time by the attorney for the applicants that the time in which the matter might be presented to the County Court on the service of September 7th had gone by, and that the purpose of an admission of service as of later date was to obviate this situation.

[1] The result of the town superintendent's admission of service as of October 20th, if within his power, was to revive the initial step in a proceeding which was dead through lapse of time. This proceeding takes property in invitum; and places the burden of assessment on property deemed to be benefited by the improvement. It is the settled rule of law that, under such circumstances, all material provisions of the statute must be complied with strictly. Matter of Wood, 111 App. Div. 781, 97 N. Y. Supp. 871; Merritt v. Village of Portchester, 71 N. Y. 309, 27 Am. Rep. 47; People ex rel. Commissioner of Highways v. Connor, 46 Barb. 333.

[2] Where the statute has provided that any application to the County Court must be made within 30 days after a specified event, such legislative determination as to a period of limitation must be deemed material, and there can be found in the statute in question no express power in the town superintendent to waive the provision which declares the limitation; and such power cannot be implied simply to confer a jurisdiction in the County Court which otherwise did not exist, for a compliance with sections 192 and 193 of the Highway Law were initial steps in the jurisdiction of the County Court to maintain the proceeding. Hence the subsequent order of that court, appointing the commissioners aforesaid, when challenged by the aggrieved property owners, should have been vacated, and the proceeding dismissed.

Order of the County Court of Suffolk County reversed, with $10 costs and disbursements, and motion to vacate order of said court appointing commissioners granted, with $10 costs. All concur.

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