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(165 App. Div. 672)

MATTHEWS v. HILL, (No. 366-96.)

(Supreme Court, Appellate Division, Third Department. January 6, 1915.)

1. TROVER AND CONVERSION (8 35*)—BURDEN OF PROOF.

A plaintiff, suing for the conversion of hay cut on premises alleged to have been leased to him, has the burden of showing his right to the bay by establishing title in his lessor.

[Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. $8 215, 216; Dec. Dig. § 35.*] 2. EVIDENCE (§ 353*)—DEEDS-CLERICAL ERROR-ERFECT.

A defect in a deed, arising from the fact that it bears the date of Feb. ruary 26, 1910, while the certificate of acknowledgment bears the date of February 25th of the same year, is but a clerical error, and the deed is admissible in evidence, where the question of title is only incidentally involved.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. $$ 1404–1428, 1430,

1431; Dec. Dig. $ 353.*] 3. EVIDENCE ($ 474*)_HANDWRITING-COMPETENCY OF WITNESSES.

'A witness, who testifies that he is familiar with the handwriting of a third person and has seen her write, may testify that the signature attached to a lease introduced in evidence is the signature of such third person.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 2196-2219; Dec.

Dig. § 474.*] 4. TROVER AND CONVERSION ($ 36*)—EVIDENCE-ADMISSIBILITY.

In an action for the conversion of hay cut by defendant on described premises, evidence that he had cut hay from other premises was inadmissible.

[Ed. Note.--For other cases, see Trover and Conversion, Cent. Dig. $$ 217-224; Dec. Dig. $ 36.*1 Appeal from St. Lawrence County Court.

Action by Albert Matthews against Fred Hill. From a judgment for plaintiff, and from an order denying a motion for new trial, made on the minutes, defendant appeals. Affirmed.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

James J. McNeil, of Ogdensburg, for appellant.
Warren 0. Daniels, of Parishville, for respondent.

WOODWARD, J. This action was brought to recover the sum of $75, for damages alleged to have been sustained by the plaintiff through the conversion of a quantity of hay by the defendant. The case was submitted to the jury upon a charge to which there were no exceptions, and the jury found a verdict in favor of the plaintiff for $46, upon which judgment has been entered, and the defendant appeals to this court from such judgment and from an order denying a motion for a new trial.

The complaint alleged that the plaintiff was "the owner in possession and entitled to the immediate possession of a certain quantity of hay, to wit, about five tons, grown upon the certain lot of about ten acres located at Blake, town of Parishville, N. Y., and being a *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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part of the farm known as the 'McNeil farm'”; and it appeared
upon the trial that this lot was known as the “Thayer lot.”
claimed on the part of the plaintiff that the defendant cut and re-
moved the hay from this lot; and the answer set up a general denial,
and alleged that the premises in question belonged to the estate or
heirs of one Malcom McNeil, and were in the lawful possession of
one William McNeil, and that the acts charged against the defendant
were committed under the authority of said William McNeil. The
defendant made no effort to establish these facts upon the trial, but
urges upon this appeal certain alleged errors on the part of the court
in the receipt and rejection of evidence.

[1, 2] The plaintiff assumed the burden of showing his right to the hay in question by establishing title to the premises in his lessor, and to this end offered in evidence a certain deed of Mary McNeil to Mary J. McGarrity. The defendant urges that this deed was unacknowledged and not entitled to be recorded, and that it was improperly admitted in evidence by its mere offer and presentment. If the premise were established, it might well be that there would be a ques tion as to the propriety of the introduction of this deed; but the fact is that the deed is duly acknowledged. The real defect is that the deed bears the date of February 26, 1910, while the certificate of acknowledgment bears date of February 25th of the same year, which is so obviously a mere clerical or scrivener's error that it is not worth while to give it any serious consideration. No one suggests that the deed was not in fact made and delivered. It is executed with all the forms necessary, and the mere fact that some one erred in the dating of the deed or the acknowledgment is of no consequence, and clearly not in a case of this character, where the question of title is only incidentally involved.

[3] The second matter urged is that the court erred in receiving in evidence the lease claimed to have been made by Mary McGarrity to the plaintiff of the premises in question, on the ground that the witnesses were not qualified to testify to her signature. Two witnesses testified that they were familiar with her handwriting, and had seen her write, and that the signature attached to the lease was tha of Mary McGarrity, and we fail to discover any error in this regard.

[4] The defendant offered evidence tending to show that he had cut hay from a lot known as the “Backus lot," but this testimony was excluded, and the defendant urges that he was entitled to have such testimony appear. There was no controversy upon the hay from the Backus lot. The plaintiff does not claim anything in that regard, and the only controversy was over the hay taken by the defendant from the Thayer lot. The evidence offered by the defendant was therefore irrelevant and immaterial to any question before the court, and was properly excluded.

Equally without merit is the contention that the court erred in permitting counsel to argue before the jury that the defendant had shifted his defense; and we are clearly of the opinion that the court did not err in refusing a new trial.

The judgment and order appealed from should be affirmed, with costs. All concur.

(165 App. Div. 679)

In re JULIUS BIEN CO. (No. 330-9.) (Supreme Court, Appellate Division, Third Department. January 6, 1915.) 1. ASSIGNMENTS FOR BENEFIT OF CREDITORS (8 387*)-ATTORNEY'S FEES-FEES

OF OPERATING COMMITTEE.

Where, on the hearing of an intermediate report of an assignee for the benetit of creditors, an allowance was asked for attorney's services, and, though the attorney's account was itemized, the reasonable necessity for the services charged for did not appear, and so far as the evidence showed the committee operating the business had been a detriment rather than a benefit to the estate, the allowance will not be confirmed, but will be sustended until the final accounting, to permit satisfactory explanation, and that they might submit to examination and cross-examination in open court.

[Ed. Note.-For other cases, see Assignments for Benefit of Creditors, Cent. Dig. 88 1145–1148; Dec. Dig. § 387.*] 2. ASSIGNMENTS FOR BENEFIT OF CREDITORS ($ 390*)-OPERATION OF BUSINESS -COMMITTEE OF CREDITORS-ALLOWANCE.

Where, after an assignment for the benefit of creditors, a committee of creditors appointed W. to operate the business, and agreed to give him 24 per cent. of the assets, such agreement was not binding on the court, whose duty it was to protect the other creditors, not a party to the agreement, and see to it that no more than was just and reasonable was allowed.

[Ed. Note.-For other cases, see Assignments for Benefit of Creditors, Cent. Dig. $$ 1152-1154; Dec. Dig. § 390.*]

Woodward, J., dissenting.

Appeal from Ulster County Court.

In the matter of the assignment of the Julius Bien Company, a New York corporation, for the benefit of creditors. From an order approving the report of the assignec, and permitting the payment of certain items objected to, etc., the assignor and two creditors appeal. Reversed, and motion denied.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Franklin Bien, of New York City (Harry Zalkin, of New York City, of counsel), for appellants.

Manley & Grand, of New York City (Franklin G. Manley, of New York City, of counsel), for respondent.

Aron & Vanderveer, of New York City (Edgar T. Brackett, of Saratoga Springs, of counsel), for Gustav C. Wedekind.

HOWARD, J. On February 2, 1914, the Julius Bien Company made an assignment for the benefit of its creditors. The business of the concern was lithographing. The inventory showed the assets of the assignor to be $59,123.13. By converting these assets into cash, $53,404.61 was realized. The assignee continued the business of the concern from the date of the assignment down to May 22, 1914, a period of nearly four months. This continuation of the business produced gross receipts (counting in the $11,619.92, outstanding accounts) of $35,092.59; but it cost $32,878.29 to operate the plant *For other cases see same topic & S XUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

during that time, so that there was only a net profit of $2,214.30. But it is not certain that there will be any profit, for only $23,472.67 in cash has been produced by operating the plant. The balance is outstanding and uncollected. In fact, the $53,404.61, realized from the liquidation of the assets which were turned over to the assignee has been depleted, as a result of operating the plant, down to $43,447.77, for this was the amount in his hands before he paid any of the disputed claims. Out of this amount the assignee has paid his attorneys $5,000. He asks to be allowed to take to himself on account of his fees $3,000, and to pay to the "committee of one,” for expert services, $1,921.93. Each of these three items are disputed and contested by the appellants. The matter came on before the County Judge, and he approved of the assignee's report, including the attorney's fee, and directed the payment of the other two items.

[1] The account of the attorneys is very long, including 80 pages of the record, and it is very minute; but a careful examination of it leaves one in doubt as to the quantity and quality of the legal services rendered. One member of the firm of attorneys seems to have attended at the office of the assignor nearly every day, and to have remained all day from 9 a. m. to 6 p. m. Just why this was necessary is not very well disclosed. The character of this account and the size of the bill presented, compared with the size of the estate, requires, we think, that the attorneys explain it more satisfactorily, and submit to an examination and cross-examination in open court. We do not criticize the claim. The attorneys will, very likely, be able to establish it; but, in view of what has been said, we think its payment should be deferred until the final accounting.

[2] Mr. Wedekind, the "committee of one," claims to have performed services for which the committee of creditors agreed that he should have 21/2 per cent. of the assets. This percentage, up to date, amounts to $1,921.93. Tnere is yet more to be reckoned. That such an arrangement was made is not at all clear to us from the record; but, if it was made, it is not binding upon the court. It is the duty of the court to protect the other creditors, not a party to this agreement, even if the agreement was in fact made. Therefore the court must inquire whether the claim is just. The statute makes no provision for this expenditure; however, if it was proper and necessary, it will be upheld. The record is very meager as to the nature of the services rendered by Wedekind, or as to the necessity of their being rendered. As near as we can determine, he managed the business while it was being run from February 3d to May 22d. But the profit derived from a continuation of this business, as has been seen, was only $2,214.30. If all the outstanding accounts are not collected, perhaps there will be no profit. The continuation of the business brought into the hands of the assignee gross receipts of $35,092.59, upon which a commission of 712 per cent. for the assignor and the "committee of one" had to be reckoned. A computation of this additional commission will show that it amounts to more than the slender profit on the continuation of the business, so that, if the management of the business was Mr. Wedekind's only duty, he was a detriment, rather than a profit, to the estate. But all this, perhaps, can be explained by Mr.

Wedekind. It is not, however, explained in the record before us; and Mr. Wedekind in his brief recognizes this, for he says the record is "somewhat meager as to the kind of services which he rendered." We therefore conclude that Mr. Wedekind should also make satisfactory explanation, and should submit to an examination and crossexamination in open court.

Without further comments, and for reasons set forth above, we think the payment of the assignee's commissions should be deferred until the final accounting. There is no apparent reason why this estate should not be closed up speedily, and that is why we are ordering the consideration of these claims deferred until the final accounting, rather than to make more expense by ordering a reference now.

We appreciate that only two creditors are objecting; but there are several other creditors, who, although not objecting, have not actually consented, for they have, apparently, given the matter no attention, and from the record there seems to be some merit in these objections.

When the matter was before the learned County Judge he overruled the objections; but, had the appellants on that occasion appeared and made vigorous protest, as they did on the appeal, he would, very likely, have heeded their argument. Their opposition at that time appeared, undoubtedly, quite perfunctory, so that they have in a manner necessitated this appeal; therefore they are entitled to no costs, here or below.

The order should be reversed, and the motion denied. All concur, except WOODWARD, J., who dissents.

Order reversed, without costs, and matter remitted to the county judge for further hearing.

(165 App. Div. 235)

GNECCO v. PEDERSEN.

(Supreme Court, Appellate Division, Second Department. December 31, 1914.) HIGHWAYS (8 173*)—USE OF HIGHWAY-AUTOMOBILES-COLLISION WITH PE

DESTRIANNEGLIGENCE-EVIDENCE.

Where defendant, while slowly driving a light automobile along a highway, lost control of it because a dog suddenly ran in front of it, and, being run over, caused it to swerve to the side of the road and strike plaintiff, a pedestrian, such facts were insufficient to establish that defendant was guilty of actionable negligence.

[Ed. Note.--For other cases, see Highways, Cent. Dig. $$ 459, 460; Dec. Dig. § 173.*]

Thomas and Rich, JJ., dissenting.
Appeal from Trial Term, Queens County.

Action by James Gnecco against Hans P. Pedersen. From a judgment for plaintiff, and from an order denying defendant's motion for a new trial, he appeals. Reversed, and new trial granted.

Argued before JENKS, P. J., and BURR, THOMAS, RICH, and STAPLETON, JJ.

William G. Johnson, of New York City, for appellant.

George F. Hickey, of New York City (M. P. O'Connor, of New York City, on the brief), for respondent. For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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