TERM. FIFTH DEPT.

In re petition of Martin Clark, admr., applt., v. Catherine Latz, exrx., respt.

Decided Oct., 1884.

A. died February 6, 1876, and in the same month B. was appointed administrator, but did nothing as such except draw from bank some money of A.'s. B. died May 18, 1880, having in his will nominated C. as his exutrix. Petitioner was, on September 22, 1880, appointed administrator de bonis non of A., and on December 14, 1881, filed with the surrogate his petition, under § 2606, Code Civ. Pro., praying for judicial settlement of the account of B. as administrator, and that C. as executrix show cause why she should not render such account, and deliver to petitioner any of such property which had come to her hands or was under her control. Held, That the petition is not barred by the statute of limitations. Appeal from order of Surrogate's Court, dismissing petition.

On December 14, 1881, Clark filed with the surrogate his pe tition, by which it appeared that

A. died intestate, February 6, 1873, and letters of administration were issued to B., who filed his inventory on the 13th of that month, representing that all the personal estate of his intestate was $1,050.57, in bank; that B., as such administrator, immediately drew that money from bank, and did nothing further as administrator; that he never rendered any account; that on May 18, 1880. B. died, leaving a will by which he nominated defendant executrix; that the will was admitted to probate and letters testamentary were issued to defendant on August 26, 1880, and she duly qualified; and that petitioner, on September 22, 1880, was appointed administrator de bonis non of A., took out letters, and duly qualified. The petition prayed for a judicial settlement of the account of B. as administrator, and that defendant as executrix be cited to show cause why she should not render and settle such account, and deliver to petitioner any of such property which had come to her possession or was under her control. The matter came on to hearing, and the petition was dismissed on the ground that the six years' statute of limitations was a bar. The proceeding was instituted under § 2606, Code Civ. Proc.

Martin Clark, for applt. Adelbert Moot, for respt. Held, That if B. set the money apart and kept it separate from his own, and it continued so to the time of his death, it would probably go to appellant. 4 Fla.,

56, 66; see 2 R. S., 95, § 71; 2 Rob. (N. Y.), 556, 569; S. C., 28 How. Pr., 324; 81 N. Y., 580; 6 Metc., 194; S. C., 39 Am. Dec., 716, 719; 27 Conn., 344; 16 Wall., 535; 5 Mon. T. B., 19; 17 Am. Dec., 33; 2 Porter, 550; 27 Am. Dec., 667; 3 Rawle, 361; 24 Am. Dec., 359; 5 Smedes & M., 130; 43 Am. Dec., 502, 17 Ala., 653; 52 Am. Dec., 190.

If respondent's position is right, that at the time § 2606, Code Civ. Proc., became law, and when this proceeding was instituted, the remedy sought was barred by the statute of limitations, then the petition was properly dismissed. 8 Rep., 152; 1 Heisk., 280; 2 Am. R., 700; 13 Fla., 393; 7 Am., 239; 5 Heisk., 353; 13 Am., 5; 54 N. H., 167; 20 Am., 131; 86 N. Y., 580, 581.

This question here depends upon the fact that for more than six years there was a remedy at law, concurrent with that in view by this proceeding, which is in its nature equitable. See 1 Edw. Ch., 343; 15 N. Y., 509; 3 Abb. Pr., N. S., 247; 2 R. S., 301, § 49; 7 Lans., 368; 30 Hun, 537; 2 R. S., 114, § 9. The next of kin were barred. 1 Barb. Ch., 455; 42 Barb., 75; 51 id., 552; S. C. affd., 41 N. Y., 619; 25 Hun, 482. The creditors, if any, were not barred at the time of the death of the chief administrator. 2 R. S., 448, 8. Petitioner is neither creditor nor next of kin.

Clark v. Ford, 1 Abb. Ct. App. Dec., 359; 3 Keyes, 370; 34 How. Pr., 478; 3 Abb. N. S., 245, distinguished.

The statute only bars the remedy of those who come within it, and to that extent is a statute of repose, 29 Barb., 277, and does not pay the debt or raise presumption of payment. 54 N. Y., 416; 13 Am., 607.

Petitioner's remedy was not concurrent with any right of action in him at law, and therefore was not within the six years but the ten years' rule. The remedy by this petition did not exist until September 1, 1880, when $2606, Code Civ. Proc., became operative. The legislature had power to create the remedy. See 10 J. & S., 326.

The statute of limitations is not a bar.

Order reversed, costs of appeal to neither party, the question being new.

Opinion by Bradley, J.; Smith, P. J., Barker and Haight, JJ.,

concur.

RAILROADS. PASSENGERS.

N.Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT.

Horace N. Hayes, applt., v. The N. Y. C. & H. R. RR. Co., respt.

Decided Oct., 1884.

When a passenger on a railroad train has mislaid his ticket, and is in good faith try ing to find it, he is entitled to a reasonable time to do so, and if in case he fails to find it he is willing and ready to pay his fare, the conductor has no right to put him off

the train.

Appeal from judgment entered on non-uit, and from order denying motion for new trial on the minutes.

Action to recover damages for being ejected from one of defendant's trains. Plaintiff had a ticket from Utica to Rome, which he had purchased the day before. The evidence in his behalf tended to show that when the conductor asked for his tic et he tried to find it and could not; that he told the conductor he had a ticket and would find it; that he felt through his pockets and told the conductor to go through the train and by the time he came back he would find the ticket, or if not, he had money to pay his fare; that the conductor said, "find your ticket or get off the train;" that plaintiff said, "maybe you better put me off this train;" that the conductor pulled the bell-rope to stop the train; that before it fully stopped plaintiff found his ticket and offered it to the conductor who refused to take it and put plaintiff off.

The conductor testified that plaintiff produced what was apparently a ticket, but refused to give it up until he got to Rome; "I said very well, I will have to stop the train and put you off;" that he then stopped the train and told plaintiff to get out; that plaintiff got up and walked out down on the ground and then wanted witness to take the ticket and witness refused and told him he had stopped the train to put him off and wouldn't carry him; that the train was not stopped for any purpose except to put plaintiff off. At the close of the testimony defendant moved for a nonsuit, which was granted.

O. P. Backus, for applt.

D. M. K. Johnson, for respt. Held, Error. If the ticket of plaintiff was mislaid and he, in good faith, was trying to find it, he was entitled to a reasonable time to enable him to do so if he could, and if, in case of failure to find it after such reasonable opportunity, he was willing and ready to pay his fare the conductor had no right to put him off. See 38 Conn., 558; 8 Lea (Tenn.), 438.

Hibbard v. The N. Y. & E. RR. Co., 15 N. Y., 455, and O'Brien v. The N. Y. C. & H. R. RR. Co., 80 N. Y., 236, distinguished.

Whether or not plaintiff was allowed such a reasonable opportunity to find his ticket or pay his fare was, upon the evidence on the part of plaintiff, a question of fact to be determined by the jury. If so, the nonsuit was improperly granted.

Judgment reversed, nonsuit set aside and new trial granted, costs to abide event.

Opinion by Merwin, J.; Hardin, P. J., and Follett, J., concur.

CONTRACT.
AGES.
N. Y. SUPREME COURT. GENERAL
TERM. FOURTH DEPT.

FRAUD. DAM-
EVIDENCE.

Jesse M. Humaston et al.,respts., v. David Beekman, applt.

Decided Oct., 1884.

Where an agent, in violation of his instructions, contracts debts in the name of his principal, he himself is liable therefor, and where the principal furnishes him with money to pay them the advance so made is a good consideration for his promise to perform any lawful act.

Where the purpose of a promise to pay the

debt of a third person is to secure a benefit to the one making the promise it is an original undertaking and not within the statute of frauds.

The measure of damage in an action for breach of an agreement to perform a positive act is not the consideration paid, but the actual loss sustained, after reason able care on the part of the injured party to prevent its being unduly magnified. A judgment roll not certified as a whole, but the separate parts of which were each certified to be a true and correct copy of the original on file, no statement being made therein that the copies were compared with the original, and accompanied by no certificate of a judge authenticating the clerk's attestation, is not properly authenticated and is inadmissible.

Appeal from judgment in favor of plaintiffs, entered on verdict, and from order denying motion for a new trial on the minutes.

Action to recover damages for a breach of an agreement.

Prior to December, 1875, plaintiffs, defendant and others, including a mining company, of which defendant was an officer, were owners as tenants in common of certain mining property in Utah, and for the purpose of developing the mines it was agreed in 1873 that defendant should be their secretary, treasurer and general agent to manage the mines. The association thus formed was called Plaintiffs, with others of the ownthe "Mayflower Mining Co."

ers, contributed their labor.

The evidence of plaintiffs tended to show that in 1874 H. came east; that before he left he notified defendant and the company not to run him in debt, and that he was not in debt at that time; that in September, 1875, defendant pre

sented a statement showing that their proportion of the debts of the company was about $300; that they insisted they were not liable because they had served the notice on him; that he acknowledged this, and proposed that if they would give him $600 he would furnish the balance and pay the debts of the company, and return to Utah with it and resume operations; that they therefore gave him the $600; that defendant failed to pay such debts, and by reason thereof the property was sold and lost to plaintiffs.

Defendant denied that he had been notified not to contract debts on behalf of H. or plaintiffs, or that he made any such proposition as claimed, and his evidence tended to show that he showed them a statement of the debts. notified them that their proportion was $668.18, and asked them to pay it; that they then paid $600 on account to the secretary of the company on the understanding that it was to be paid to certain creditors, and that it was so paid. The jury were instructed that if defendant made the arrangement, whatever it was, not as an individual but as an officer or agent of the companies, or if the money was paid on indebtedness of plaintiffs to the company, or was sent with their consent to pay creditors of the company, plaintiffs could not recover; that if the agreement was as they claimed and performed on their part but broken by defendant, they would be entitled to recover the sum paid with interest, or $800, and if H.

went to Utah in pursuance of the agreement they could also recover $400 for his expenses.

The jury found a verdict for

$800.

Geo. C. Morehouse, for applt. M. D. Barnett, for respts. Held, The jury is presumed to have found all the facts supported by evidence that are necessary to sustain the verdict, and hence, that defendant, as an individual and not as an officer or agent of either mining company, agreed with plaintiffs that, in consideration of their paying him the sum of $600 for his own use and not on account of any debt they owed, he would within a reasonable time pay the debts of the company. This agreement, if made, was valid, and when performed by plaintiffs was binding upon defendant. defendant, in violation of his instructions from plaintiffs, contracted debts in their name, he was bound to pay such debts, and if plaintiffs paid them they could recover the sum paid from him. See 1 Pars. on Cont., 80; 1 Cow., 645; 2 Hall, 252; 3 Den., 575. If they furnished him the money to pay them they could recover an equivalent from him. Hence if they furnished him the money to pay their debts wrongfully contracted by him, it was a good consideration for his promise to perform any lawful act.

If

Moreover, according to the version of plaintiffs, even the debts thus contracted by defendant without authority amounted to but about one half of the sum they paid him. The excess, therefore, would