appealed from required the additional defendants to accept the referee who had been appointed and the evidence which had been taken before him. The action did not appear to be one which could be referred without consent. on the ground that the award was invalid. Plaintiffs appealed therefrom, and gave the usual stipulation. The order of General Term was affirmed, and judgment absolute given for defendants on the stipulation. Judgment was thereupon entered, declaring the submission and all proceedings thereunder, void. Held, That the effect of the stipulation was, in case of affirmance, to give defendants such a judgment as the facts alleged entitled them to; that the judgment must be absolute against the appellants upon the whole matter in controversy; that the judgment was too broad; defendants were entitled, on the facts, to have the award adjudged void, but the submission should stand. George H. Forster, for applt. J. Homer Hildreth, for respts. Held, That even if the court had the power, under section 452 of the Code, to bring in the new parties defendant, it could not compel them to accept the referee and the evidence already taken before him, This action was brought to reeven with the right of cross-exami- cover $3,000, awarded to plaintiffs nation; they had the right to have by arbitrators chosen by the parthe case tried by the court or a ties. This item was one of several jury, and at least the right to be heard as to the appointment of a referee, and to be present when the witnesses were sworn and exam-ceeded their jurisdiction, that the ined. acted upon by the arbitrators. Defendants answered, alleging, among other things, that the arbitrators ex award was void upon its face, and Order of General Term reversed that it was corruptly and frauduas to the appellant, and order of Special Term reversed as to him, except as to so much thereof as makes him a party defendant in lently made and published by procurement of the plaintiffs, and, therefore, void, and that it was invalid for other reasons stated, and defendants demanded that the this action. Opinion by Earl, J. All concur." award be adjudged to be void, and that the same be vacated and set aside, and that the submission be APPEAL. EFFECT OF STIPU- declared to be revoked, and that the LATION. N. Y. COURT OF APPEALS: complaint be dismissed, and that they have judgment accordingly." Plaintiffs replied, denying the alleThe action Hiscock et al., respts., v. Harris et gations of the answer. al., applts. Decided March 19, 1880. In an action to recover an award made by arbitrators, defendants alleged that the award was void, and asked that it be vacated and the submission revoked. Judgment was rend was referred, and a judgment rendered for plaintiffs for the sum claimed. This judgment was reversed by the General Term, and a new trial granted, on the ground that the award as to the $3,000 was ered for plaintiffs, which was reversed by invalid. Plaintiffs appealed to this the General Term, and a new trial granted, court, giving a stipulation for judg ment absolute against them in case Oliver Porter, for applts. On While plaintiff was purchasing his tickets, his tion for conversion, Held, That the acts of Reversing S. C., 8 W. Dig., 466. Held, That defendants having set up a counterclaim, and being entitled, upon the facts alleged, to have the award vacated and set aside, after the new trial was granted they had the right to go to trial again, and establish their counterclaim, if they could, and thus obtain the relief demanded in their answer; that plaintiffs deprived them of this right by their appeal, and the effect of the stipulation they were obliged to This action was brought to regive was, in case of affirmance, to cover the value of a quantity of give defendants such a judgment as baggage alleged to have been conthe facts alleged by them entitled verted by defendant. It appeared them to. The judgment must be that plaintiff, desiring to go from absolute against the appellants up- Philadelphia to Chicago, applied to on the whole matter and right in defendant's baggage-master for controversy. That the judgment checks for his baggage, and was inhere was too broad, but defendants formed that he must first prowere entitled to have the award adjudged void; that this would invalidate all subsequent proceedings depending solely upon it, but the submission should stand for what it is worth. cure his tickets. He left to do so, and during his absence the baggagemaster had the trunks, nine in number, weighed, checked and put upon the train. On plaintiff's return, he was informed that he had not tickets enough, and must pay $8 for extra and their contents were destroyed. weight of the trunks. Plaintiff, On his arrival he claimed and took after some controversy, refused to possession of those that were saved. pay this, and demanded his checks, Charles M. Da Costa, for applt. which demand was refused. He Wm A. Beach, for respt. then demanded his trunks, and the Held, That the acts of defendant's baggage-master refused to deliver agents at Philadelphia amounted to them, because they were on the a conversion of the property, but train under other baggage, and could plaintiff, having resumed control of not be removed before the time for his baggage, could recover only starting the train. Plaintiff declined nominal damages. to go on that train. He found de Judgment of General Term, af fendant's president and requested firming judgment for plaintiff, reversed, and new trial granted. him to cause the baggage to be taken off at Pittsburg, as he intend- Opinion by Church, Ch. J. All ed to stop there, and the president concur, except Miller, J., who congave the necessary directions to curs in result, and Folger, J., dishave this done. The baggage-senting. master telegraphed to Pittsburg, but the trial judge found that, in the hurry at that place, the baggage REFEREE. was not stopped. The evidence N. Y. SUPREME COURT. GENERAL tended to show that the telegram was not received in time. The baggage-master also gave plaintiff a TERM. FOURTH DEPT. Emily Countryman, respt., v. written order directing the baggage- Henry P. Norton, ex'r, applt. Decided April, 1880. A referee, before whom a trial had been commenced, was subsequently appointed a Justice of the Supreme Court. After entering upon the discharge of his duties as such justice, he made his report as referee. Held, That under section 21, of article VI of the Constitution, he could not act as referee; that all proceedings by and before him as referee after he took the oath as a justice of this court are coram non judice and void, and and that such provision of the Constitution cannot be waived by a party to an action. Appeal from a Special Term order denying a motion made by the defendant to set aside the report of the referee herein. The case was a reference of a claim against the estate of a deceased person, under the statutes in such case provided. The trial of oath as a justice of this court, are the action commenced and was con- coram non judice and void. tinued before the referee until De- The language of the provision of cember 22, 1877, when the fur- the Constitution in question being ther trial was suspended without unambiguous and the words plain day. On said 22d day of Decem- and clear, the intention of the peober, 1877, the referee, having been ple in adopting the instrument is appointed by the Governor a jus- to be sought in the language of the tice of this court to fill a vacancy, instrument itself, in order to ascerentered upon the duties of the office, tain the intention of the framers of and in August, 1878, made a de- it. It is peculiarly true of the fundcision of the case as such referee, amental laws, called written constiwhich report was filed. The motion tutions, adopted by the people at for the order now appealed from large, if the provision in question is was made upon the ground that the plain and clear on the face of it, it said referee was incompetent to act is to be presumed that the language as such whilst holding the office of was used in the ordinary acceptaa Justice of the Supreme Court, un- tion, and is to be literally interder sec. 21, article VI of the Con- preted, and exceptions are not to be stitution, which is as follows: "Nor engrafted on it by any speculation shall any Judge of the Court of as to the reasons which have inAppeals, Justice of the Supreme duced its adoption, in order to deCourt, or a judge of a court of feat the literal intepretation of its record in the cities of New York, provisions. Brooklyn or Buffalo, practice as an attorney or counsellor in any court of record in this State, or act as referee." It was claimed by the plaintiff that the attorneys Order appealed from reversed, for the respective parties had stipu- and the report of the referee, and lated to waive "every legal and all subsequent proceedings, set constitutional objection" to the powers and jurisdiction of the referee that might arise from his appointment as a Justice of the Supreme Court after his appointment as referee, and that proceedings had Also held, That the provision in question was obviously founded on public policy, and is not one which can be waived by the defendant. aside. Opinion by Talcott, P. J.; Hardin and Smith, JJ., concur. MARRIED WOMEN. been taken by defendant which also N. Y. SUPREME COURT. GEN. TERM. had the effect of waiving such objection. J. D. Decker, for applt. A. P. Butts, for respt. Held, That all proceedings by and before the referee, after he took the SECOND DEPT. James Armstrong et al., respts., v. Decided February 9, 1880. management of his wife's property, she is bound by his acts, and cannot defend an action on a bill contracted by him in relation LIMITATION. EVIDENCE. to said property on the ground that she did N. Y. SUPREME COURT. GENERAL not specially authorize such contract, or even that she did not know of it. This is an appeal from a judgment against defendant, a married woman, for services rendered and materials furnished for the benefit of her separate estate, by plaintiffs, in pursuance of an agreement with defendant's husband, without her knowledge. The plaintiffs are plumbers. The defendant owned the real estate upon which they used the materials and performed the work in question. The defendant's husband employed the plaintiffs, but did not disclose the name of the defendant as the principal. The defendant testified as follows : "My husband was accustomed, from time to time, to employing men on the premises. "Q. Did he take general care and management of your property? "A. Yes, sir." A. J. Perry, for respt. Held, That defendant's husband, under this evidence, was her general agent in respect to defendant's real estate, and that it was not a defense to the payment of plaintiffs' bill that she, defendant, did not specially authorize the contracting of the bill, or even that she did not know of it, and that she was bound by the acts of her general agent. Judgment affirmed, with costs. Opinion by Barnard, P. J. A promissory note was made by two joint debtors. The payee afterwards died, leaving such note, having upon it several indorsements of payments, some within the six years, in her own handwriting. Her executors sued one of the joint makers, relying on such indorsements to take the case out of the statute of limitations. Held, That the endorsements are evidence, but not sufficient, standing alone, to establish the fact of payment by the debtor defendant to the owner of the note of the amount indorsed and at the time when it was indorsed. Some evidence of these facts must be given before a case is made for submission to the jury. Appeal from a judgment of the County Court of Delaware County. The facts so far as they relate to this appeal are these: November 28, 1854, Thomas Nichol and Adam Nichol gave their promissory note to A. G. Brainard for the payment of $200, with interest one year from the date thereof. Brainard died in 1868, having previously transferred said note to his wife Mary Brainard, who died in 1876, and whose executors brought this action. In defence the defendant plead the statute of limitations. There were a number of indorsements of payments of interest on the back of said note and which were proved to be in the handwriting of A. G. Brainard down to 1867, and of Mary Brainard down to 1872. The action was brought in Justice's Court in 1877, and judgment given against defendant; on appeal to County Court, that judgment was reversed and the present Vol. 10-No. 7. |