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SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

denying the defendant's motion for a new trial made upon the minutes.

This appeal was transferred from the first department to the second department.

George W. Schurman, for the appellant.

Jacob Manheim, for the respondent.

WILLARD BARTLETT, J.:

The plaintiff recovered a verdict of $500 for personal injuries sustained by him in consequence of a collision on Allen street, in the borough of Manhattan, between a double truck carrying ale barrels, and a hand cart which the plaintiff was pushing along the street. It was alleged that the truck belonged to the defendant. corporation and was in the control of its employees. The evidence at the trial was ample to charge the driver of the truck with negligence; the plaintiff appears to have been wholly free from contributory negligence; and the principal question presented by this appeal is whether the proof sufficed to establish the defendant's liability for the conduct of the person or persons in control of the truck at the time of the accident.

Two apparently disinterested witnesses who saw the collision testified that the truck bore a sign reading thus: "Croton Brewery, W. A. Miles & Co., 55, 57 and 59 Chrystie street." This is the location of the brewery of the defendant. On the day of the accident, according to the testimony of the defendant's secretary, at about twelve o'clock, two men came into the brewery and said that there had been an accident around the corner in Allen street. The witness says he took the names of these men, but his memorandum was mislaid and he did not try to subpoena them for the trial or find out who they were. He immediately took measures, however, to ascertain whether it was one of the defendant's trucks which was concerned in the collision, and as a result of his investigation was able to say that only four truck drivers, whom he named, were in the employ of the corporation on that day. These drivers were all called as witnesses in behalf of the defendant, and each denied that any such accident had happened in the course of his truck's travels on the day in question. It appeared, however, that

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

the defendant at the time owned, altogether, from five to eight trucks, all bearing the same distinctive sign.

In Seaman v. Koehler (122 N. Y. 646) the defendant was the member of a firm of brewers known as H. Koehler & Co., in business at Twenty-ninth street and First avenue in the city of New York. The inscription on the truck by which the plaintiff was injured was "H. Koehler & Co., Twenty-ninth street and First Avenue." Many trucks of the same kind were employed in the firm's brewery business. The truck was loaded with ale barrels at the time of the accident, having left the brewery and being engaged in making the second delivery for the day when the plaintiff was hurt. "These facts," say the Court of Appeals, "were denied by no one, and they were sufficient, as we think, to authorize the jury to infer that the truck belonged to defendant's firm, and that the driver thereof was in its employment when he negligently ran against the plaintiff. A prima facie case was thus made out for the consideration of the jury, and if the defendant's firm did not in fact own the truck or employ the driver, it was incumbent upon him to produce some evidence upon the subject."

While the evidence in the present case was not so strong or convincing as it was in the case cited, to establish the defendant's ownership and control of the truck which injured the plaintiff, still we think it was sufficient to take the question of such ownership and control to the jury. It is true that no witness was able to testify to having seen the particular truck leave the brewery to deliver beer to the defendant's customers, and it is also true that there was testimony for the defendant tending to show that no one of its trucks could have been present at the scene of the accident. In these respects the case at bar differs from Seaman v. Koehler (supra). On the other hand, we have a group of facts which might well convince a jury that it could have been none other than the defendant's truck which knocked down and injured the plaintiff. Although the truck drivers who testified all denied any knowledge of an accident, and denied having been in Allen street at the time when the plaintiff was hurt, it is plain from their testimony that several of the defendant's trucks may have been in that neighborhood at that time. These drivers were all interested to shield themselves from responsibility for the plaintiff's injuries, and as only one truck was

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

concerned in the collision, three of them must have told the truth. The jury may well have thought, however, that there was one witness among them unworthy of credit, in view of the disinterested character of the witnesses who saw the defendant's sign upon the truck, and in view of the extremely significant circumstance that immediately after the time of the accident, as fixed by the plaintiff, two men called at the defendant's brewery and informed the secretary of the brewery corporation that "there had been an accident around the corner in Allen street." It is difficult to conjecture why these men should so speedily have conveyed this information to the defendant's brewery, unless they were tolerably well satisfied, from what they had seen, that one of the defendant's trucks was concerned in the collision, and it is to be noted that the defendant does not appear to have made any effort to procure the attendance of these informants as witnesses, although the secretary took down their names on a memorandum which he said he had mislaid.

The evidence as to the manner in which the collision occurred did not require the jury to find, as is contended in behalf of the appellant, that the driver of the truck was acting outside the scope of his employment at the time of the accident, and willfully ran down the plaintiff. It merely brought into the case an issue of fact which the jury were at liberty to determine either way. (See Mott v. Consumers' Ice Co., 73 N. Y. 543.)

In denying the defendant's motion for a new trial the learned judge in the court below said: "My own notion is that the preponderance of evidence is with the defendant, but the jury seem to have thought otherwise." I understand this to mean merely that, if sitting as a juror, he would have found in favor of the defendant; but not that the verdict for the plaintiff was opposed to the clear weight of evidence, for, if such had been his opinion, he certainly would have given the defendant a new trial. At all events I am satisfied that the verdict is sufficiently sustained by the proof, and that we ought to uphold the judgment.

Judgment and order unanimously affirmed, with costs.

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

In the Matter of the Judicial Settlement of the Account of Pro-
ceedings of ELIZA J. ARKENBURGH as Executrix, and OLIVER M.
ARKENBURGH as Executor, of the Last Will and Testament of
ROBERT H. ARKENBURGH, Deceased, Respondents.

ROBERT H. ARKENBURGH and ELIZA J. WIGGINS, Appellants. Executor's accounting — payments made by an executor after his account is filed — the surrogate cannot decide between adverse claimants to a legacy — renunciation by executors of a specific compensation under section 2730 of the Code of Civil Pro

cedure-laches.

The refusal of a surrogate to modify a decree made upon the accounting of an executor, by deducting from the amount of cash on hand stated in the decree a sum retained by the executor to reimburse himself for payments made by him, is not error, where it appears that such payments had been made since the account was filed and that their propriety had not been investigated or passed upon on the accounting. The question in respect to such items should be determined upon a subsequent accounting.

Where upon such an accounting the share of a legatee is claimed under a writ of attachment and also under an assignment, both of which are before the surrogate, the latter is without jurisdiction to determine which claimant is entitled to the legacy.

Under the provisions of section 2730 of the Code of Civil Procedure, providing that "where the will provides a specific compensation to an executor or administrator, he is not entitled to any allowance for his services, unless, by a written instrument filed with the surrogate, he renounces the specific compensation," the surrogate may, after the filing of such renunciation, allow his commissions on the same principles which would control if there had been nothing said in the will in regard to specific compensation.

Quare, as to whether the executor is entitled to full compensation and whether the failure to file the renunciation until two and one-half years after letters testamentary were issued, does not constitute such laches us will deprive the executor of the benefit thereof.

APPEAL by Robert II. Arkenburgh and Eliza J. Wiggins, two of the legatees named in the last will and testament of Robert H. Arkenburgh, deceased, from the whole of a decree of the Surrogate's Court of Rockland county, entered in said Surrogate's Court on the 30th day of December, 1895, settling the account of the executors under said will, except from that portion thereof which adjudges that Robert H. Arkenburgh is entitled to receive from the estate of Robert H. Arkenburgh, deceased, the sum of $2,347.26; also from an order bearing date November 15, 1894, and entered in said SurAPP. DIV.-VOL. XXXVIII. 60

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rogate's Court, directing the payment to Oliver M. Arkenburgh of $3,000; and also from an order bearing date the 30th day of January, 1896, and entered in said Surrogate's Court, denying said legatees' motion to vacate or modify the decree.

Charles Edward Souther, for the appellants.

Robert F. Little for Oliver M. Arkenburgh, as executor, respondent.

WILLARD BARTLETT, J.:

The appellants present four questions for our consideration upon this appeal. We will discuss them in the precise form and order in which they are stated on the brief of counsel.

1. The first question is whether the surplus of the estate remaining and ready to be distributed was not overstated in the balance of $48,778.06, as found in the summary statement to be taken as part of the decree.

The summary statement in the decree states the amount of cash on hand to be $10,778.06. The appellants contend that this amount should have been stated to be $7,494.32, because it appears from an affidavit made by the executor, Oliver M. Arkenburgh, that he had paid himself $3,232.32 since the filing of his account. After the decree was entered the appellants applied to the surrogate to modify it so as to make this correction, and one of the appeals here is an appeal from the order denying that application. In opposition to the motion it was shown in behalf of the executor, Oliver M. Arkenburgh, that this item of $3,232.32 represented payments made in the course of his administration for expenses which had not been repaid to him; and as they had been made since his account was filed and their propriety had not been investigated or passed upon in this proceeding, it was proper for the surrogate to leave all questions in respect to such item to be determined upon a subsequent accounting. We find no error, therefore, in allowing the amount of cash on hand to remain as stated in the decree.

2. The second question is whether the decree did not omit to direct the payment and distribution thereof to the persons entitled thereto according to their respective rights as to the items therein, of $2,347.26 and $3.09. This question relates to that portion of the decree concerning the amount which Robert H. Arkenburgh is

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