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The right of the plaintiff to 7 per cent. interest on the mortgage, as allowed by the referee, seems to have abundant authority to sustain it. O'Brien v. Young, 95 N. Y. 428.

I do not think the order denying the plaintiff's motion to strike out the name of Gideon Hard, as party defendant, has any bearing on the case, as it was denied without prejudice to any further action or proceeding by the plaintiff. This seems to me to be a proper case for an additional allowance to the plaintiff, but the sum cannot, under section 3253 of the Code, exceed $200, which sum is allowed the plaintiff. The report of the referee must be confirmed, and judgment ordered accordingly.

STEARNS v. ST. LOUIS & S. F. Ry. Co.

(Supreme Court, General Term, First Department. January 28, 1889.) FRAUDS, STATUTE OF-AGREEMENTS RELATING TO LAND.

A verbal agreement by the president and land commissioner of a railroad company, which has purchased the property of another company, including certain lands in Missouri, on which plaintiff had a written contract of purchase, that it would perform the contract as if originally made by it, is within the statute of frauds of Missouri, which provides that no action shall be brought on a contract for the sale of lands unless such agreement is in writing.1

Appeal from circuit court, New York county.

Action by Frank B. Stearns against the St. Louis & San Francisco Railway Company, to recover damages for breach of contract. The contract was originally made between the Atlantic & Pacific Railroad Company and four others, viz., Henderson, Ensign, Webb, and Moore, and by it the former agreed to sell to the latter certain lands in the state of Missouri, for a price agreed, upon certain payments to be made as set forth in a written memorandum of the contract. Time, by the terms of the agreement, was to be of the essence of the contract, and, in the event of a failure to make the payment, etc., as stipulated, the contract was to be void. The price of the whole property was $140,000, but it was agreed that upon prompt payment of all the sums a discount of $10,000 should be made. The benefit of this contract was assigned by Henderson and his associates to the plaintiff, and a contract was made, signed by plaintiff, and by the president and land commissioner of the Atlantic & Pacific Railroad Company. The property of said last-named company was sold at judicial sale, and purchased by defendant, who thus succeeded to all the rights of the Atlantic & Pacific Railroad Company. The same persons became, respectively, president and land commissioner of defendant that occupied said positions in the former company. Plaintiff alleged that the president of defendant agreed orally to perform the contract as if it had been made by defendant itself, and that he then informed the president that he had negotiated with parties who were willing to purchase the lands, and pay the cash for them, if defendant would approve the sale. To this the president assented, and, relying thereon, plaintiff, at great expense, took the persons mentioned to the lands in question, to be inspected by them; the result being that they were entirely satisfied, and agreed to purchase, and would have done so at a great profit to plaintiff, had not defendant refused to recognize the validity of the contract, and denied plaintiff's interest in the lands. The defense, among other things, was that of res adjudicata; there having been an action between the parties in Missouri involving the same matters. A trial was had, resulting in a judgment for defendant, which on appeal was reversed by the general term. Another trial resulted in a verdict and judgment for plaintiff for $12,570, and defendant appeals.

As to what agreements relating to land are within the statute of frauds, see Watters v. McGuigan, (Wis.) 39 N. W. Rep. 382, and cases cited; Moorman v. Wood, (Ind.) 19 N. E. Rep. 739.

Argued before VAN BRUNT, P. J., and BRADY and MACOMBER, JJ. Burrill, Zabriskie & Burrill, for appellant. James Dunne, for respondent. VAN BRUNT, P. J. This case has been before the general term upon two previous occasions: First, upon an appeal from the judgment dismissing plaintiff's complaint; and, secondly, upon a motion for a reargument of that appeal. 41 Hun, 641, mem.; 42 Hun, 659, mem. And we concede that the adjudications made by this court upon those appeals should control the decisions of the questions involved, so far as they may be applicable, although we might have arrived at a different conclusion had these questions been presented for the first time to this court. It was distinctly held upon the appeal from the judgment rendered upon the first trial of this case that the judgment recovered in the state of Missouri against the plaintiff could not be set up as a bar to the case made by the complaint in this action. Although it seems to be apparent that the adjudication in Missouri determined, as between these parties, that there had been a breach of his contract upon the part of the plaintiff, and that there had been no breach of its contract upon the part of the defendant, and that, therefore, the defendant in this action had never refused to convey to the plaintiff or his assigns, and although under these circumstances it is not apparent from whence the right of the plaintiff arises to claim in this action that there had been upon the part of the defendant such a refusal to convey, we must be governed by the decision of this general term upon the previous appeal, that such judgment in Missouri was not a bar to the case made by the complaint in this action. But I do not find that it has been adjudicated by this court upon these appeals, as is stated by Mr. Justice MACOMBER, that if the plaintiff succeeded in proving (by parol evidence) the allegations in the complaint there was no legal hinderance to his recovery.

Upon the motion for a reargument, the judgment of the general term upon the first appeal, in reference to the effect of the litigation in Missouri, was adhered to; and it was further decided that the original contract was a simple contract, capable of being modified by such an agreement as the plaintiff alleged in his complaint to have been made, and the adjudication to that effect was based upon the fact that the allegation in the complaint was that it had been agreed between the defendant corporation and the plaintiff, and that the use of this word "agreed," so employed in the pleadings, imported the making of a legal agreement, and that under this allegation the court was not at liberty to infer that it was nothing more than a verbal agreement, for the purpose of defeating on that inference the plaintiff's right of action. But the court further held that this agreement related wholly to the sale of lands in the state of Missouri, and was not within the statute of frauds of this state; that it was there to be performed by a corporation created and existing under the laws of that state, and related to real property situated in that state; and that without evidence of the fact that a similar statute, relating to contracts for the sale of real property, existed in that state, to the statute existing upon this subject in the state of New York, the fact could not be presumed to be so; and the court further say that whether the plaintiff will be able to maintain this action must depend, not so much upon the state of the pleadings, as upon the proof which may be adduced in support of his allegations upon the trial. This adjudication, therefore, left it open to the defendant to establish the fact that the second agreement, as it is called, fell within the statute of frauds of the state of Missouri, and was void. It has been adjudicated by the last opinion to which attention has been called that this agreement related wholly to the sale of lands in Missouri, and that it was not within the statute of frauds of this state, because the statute of frauds of Missouri alone applied, if any such statute existed in that state. It is further clearly intimated that if the statute of frauds in Missouri was similar to that in New York, then the agreement came within its terms, and was void. Upon the trial it

was proved that this second agreement, which it was claimed formed the basis of the plaintiff's cause of action, was not in writing. It has been held by the general term that this agreement related wholly to the sale of lands in Missouri, and the statutes of the state of Missouri were put in evidence, which provided that no action should be brought to charge any person upon any contract for the sale of lands, tenements, hereditaments, or any interest in or concerning them, or any lease of them for a longer term than one year, unless such agreement is in writing. The claim upon this appeal that this new contract was simply one of brokerage is no more open to us for discussion than is the question as to whether the judgment obtained in Missouri is a bar to the maintenance of this action. Upon this state of facts, the court have held that this was a contract relating to the sale of lands in the state of Missouri; and that if the statute of frauds of the state of New York was to govern it would be within that statute, and that if the statutes of Missouri were similar to those existing in New York it came within the statutes of Missouri. The proof in the case showed that in this respect the statute of frauds of the state of Missouri was similar to that of New York, and consequently the agreement was within that statute, and could not be enforced. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide event.

All concur; MACOMBER, J., in the result.

DUNHAM et al. v. CRESSY et al.

(Supreme Court, General Term, First Department. January 28, 1889.) WRITS-SERVICE ON NON-RESIDENT-WHEN SET ASIDE.

Where defendant comes into the state solely in pursuance of a letter from plaintiffs, to attend to business, plaintiffs proposing to pay his expenses "one way," and saying that the business concerned them both, and the letter is calculated to quiet any apprehensions defendant may have of being sued, and plaintiffs transact no business with him, but serve him with summons, such service will be set aside.

Appeal from special term, New York county.

Action by James H. Dunham and others against Thaddeus B. Cressy and others. Plaintiffs appeal from an order setting aside service of summons upon defendants.

Argued before VAN BRUNT, P. J., and BRADY and MACOMBER, JJ.
Kopper & Jenks, for appellants. W. W. Niles, for respondents.

MACOMBER, J. If any cause of action existed in favor of the plaintiffs against the defendants, it arose out of the purchase by the defendants of certain goods of one Glazier. The plaintiffs claim that Glazier had obtained from them a large amount of merchandise, under circumstances which would stamp his possession of it as fraudulent, and the only claim against the defendants arose from their purchase of a portion of such merchandise from Glazier. There is nothing, however, in the affidavits to show that the defendants had any knowledge of the embezzlement of Glazier, or that he did not have full power to dispose of the merchandise which they bought. After finding out the facts, they seem to have done all in their power to restore to the true owners the property which they had inadvertently received from Glazier. This fact seems to show that there was no well-grounded cause of action against them in this case.

Aside from that consideration, however, it is clear from the letter which the plaintiffs wrote to the defendants on May 16, 1888, that the order of the special term was correct, and should be affirmed. The letter was well calculated to deceive the defendants. It apprised the defendants that they were not liable for the payment of a check which they had given to Glazier for certain goods, and this advice was based upon the allegation that such goods

were stolen property, and the check therefor would be void. They then say: "You are therefore not liable for the payment of the check, and have suffered no loss from the transaction except what profit you might have made by sale of the goods. Inasmuch, therefore, as you deem it too late in the season to buy merchandise, the affair seems to adjust itself. We deem it highly important, both for you and ourselves, that we should see you with reference to the Glazier transaction, and we would ask if one of your firm will make it convenient to visit New York either this week or early next. Inasmuch as it concerns us both, we would propose to pay your expenses one way. Our agent would meet you in Boston, but it would be more satisfactory to see you here. When the defendant Edwin P. Cressy appeared in New York city, in pursuance of the request contained in this letter, the only business that was transacted with him by the plaintiffs was a request for him to enter into a side room, where he was personally served with the summons in this action. The plaintiffs had nothing to say about Glazier or his embezzlements, or any other question touching any business connection that the defendants had had with Glazier, further than this act. The letter was well calculated to quiet any apprehensions that the defendants might have of a purpose on the part of the plaintiffs to hold the defendants liable for anything connected with their transactions with Glazier. It was so adroitly drawn as to put any person off his guard who had any previous apprehension of a purpose on the part of the plaintiffs to hold them responsible. The evidence is clear that the defendant who was served came into this state solely in pursuance of that letter, and a perusal of the letter, in connection with the circumstances attending the relations of the several parties to Glazier, clearly shows that it was a device only to bring the defendants within the jurisdiction of this court at the place of residence of the plaintiffs. It is hardly necessary to add that the plaintiffs failed to pay the defendant's "expenses one way." Under these circumstances, the court cannot permit its process to stand. The order setting aside the service of the summons is consequently affirmed, with $10 costs and disbursements. All concur.

LANGE V. KEARNEY.

(Supreme Court, General Term, First Department. January 28, 1889.)

1. PHYSICIANS AND SURGEONS-ACTION FOR SERVICES-EVIDENCE-PROFESSIONAL STANDING.

In an action by a surgeon for professional services, he may show that his professional standing is high, as bearing on the value of his services.

2. SAME-APPEAL-REVIEW-WEIGHT OF EVIDENCE.

The finding of the jury as to the value of the services will not be disturbed, on appeal, where the evidence on that subject is conflicting, and the services consisted in performing a delicate and unusual operation, requiring great skill.

Appeal from circuit court, New York county.

Action by Frederick Lange, a practicing surgeon, against Peter Kearney, for professional services in performing an operation on defendant's son. Verdict and judgment for plaintiff. Defendant's motion for new trial denied, and he appeals.

Argued before VAN BRUNT, P. J., and BRADY and MACOMBER, JJ.

Edward F. O'Dwyer, for appellant. Hathaway & Montgomery, for respondent.

BRADY, J. The question in this case for the jury to determine was as to the value of the services rendered by the plaintiff in the treatment of the defendant's son. The operation successfully performed by him was delicate and unusual, and required great skill. The charge made was reasonable, if the plaintiff and his witnesses are credited. On that subject, it is true, there

was conflicting evidence, but that only imposed upon the jury the duty of greater deliberation and scrutiny. There is not such a preponderance as would justify us in reversing their finding on that subject. There is also evidence tending to establish a custom or rule of guidance as to charges of physicians for services rendered, and which makes the amount dependent upon the means of the patient,-his financial ability or condition; but this is a benevolent practice which does not affect the abstract question of value, or impose any legal obligation to adopt it, and cannot be said to be universal on the evidence. Indeed, there does not seem to exist any standard by which, in the application of the rule, the amount to be paid can be ascertained. Each case is under the special disposition of the surgeon or physician attending, and he is to decide as to the reduction to be made on account of the circumstances of his patient, and therefore, when the amount is in dispute, it follows that it is to be determined by proofs to be given on either side. It must be further observed that, although the sum demanded by the plaintiff seems to be large in contemplation of the defendant's income, nevertheless it appears that he is the owner of property, and, although it may embarrass him, or subject him to inconvenience, he can pay it, he has the ability to do so. It may be justly said that the plaintiff saved the life of the defendant's son, and by a master performance, which united skill, knowledge, and experience, and without which it could not have been done. The exceptions are valueless. The plaintiff had a right to show that his standing in the profession was high. The measure of compensation must be controlled more or less by ability in all the professions, and the service rendered by its responsibilities and success. We see no reason for disturbing the judgment. Ordered accordingly. All concur.

PRIDE v. INDIANAPOLIS, D. & W. RY. Co.

(Supreme Court, General Term, First Department. January 28, 1889.) ATTACHMENT-AFFIDAVIT-INFORMATION AND BELIEF.

An attachment, issued on the ground that defendant is a foreign corporation, on a complaint alleging a cause of action "on information and belief," without explaining the sources of information, or profert of any document or allegation of ability to obtain the informants' affidavits, is properly vacated.

Appeal from special term, New York county.

Action by George H. Pride against the Indianapolis, Decatur & Western Railway Company. An attachment was issued on plaintiff's affidavit that defendant was a foreign corporation, which was afterwards vacated on defendant's motion, and from the order vacating it plaintiff appeals.

Argued before VAN BRUNT, P. J., and BRADY and MACOMBER, JJ.
E. R. Dodge, for appellant. Nelson S. Spencer, for respondent.

BRADY, J. The cause of action, as alleged, rests upon information and belief. If the occurrences stated took place as narrated, the defendants assumed the payment of the coupons on which the action was brought. They are not original obligations of the defendant, but became payable by it on the purchase of the Indianapolis, Decatur & Springfield Railway Company-the subsequent organization of two new corporations-by the purchasing committee to which the purchase was transferred, and the ultimate consolidation of these new companies into one, namely, the defendant in this action. If all this was done as averred, and legally accomplished, the defendant would be liable for the interest coupons mentioned, but the allegations should be so made as to leave no doubt of the facts stated. The mere averment of them on information and belief, without explanation or profert of any document, or the expression of the sources of information and ability to get the informants as affiants, leaves a meager case on which to seize the defendant's prop

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