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[Vol. 125.

Second Department, April, 1908. APPEAL by the plaintiff, Max Cohen, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 13th day of November, 1907, dismissing plaintiff's complaint.

M. II. Newman, for the appellant.

Isaac Miller, for the respondent. JENKS, J.:

This is an appeal from a judgment dismissing the complaint because it does not state a cause of action. The complaint shows these facts. The plaintiff and Steckler agreed to exchange real properties. The plaintiff accordingly delivered the deed of his property to Goodman (the assignee of Steckler), subject to two mortgages. The amount of arrears of the interest on the mortgages and the tax on that property were allowed by the plaintiff to Steckler (and Goodman). Steckler agreed to apply that amount to that purpose, but failed and neglected to do so. The plaintiff, therefore, sued Steckler and Goodman to recover that amount. The plaintiff's motion to dismiss his complaint as to Goodman was granted.

I think that the judgment should be affirmed. Under the agreement for exchange the plaintiff was bound to pay the interest on the mortgages and the taxes. Plaintiff's allowance to Steckler (and Goodman) of the amount necessary to make such payment was in effect to discharge plaintiff's obligation and his premises were taken as if presented for the exchange under the agreement therefor, freed from such charges. It does not appear that plaintiff rad been damaged by the neglect or omission of Steckler to make the application of these moneys, or that after the delivery of the deed of the premises by the plaintiff to Goodman (who stood in Steckler's shoes) plaintiff remained liable either for the interest upon the mortgages or for the taxes. The cases cited by the plaintiff to sustain his contention can be discriminated. In Thomas v. Ruhl (30 Misc. Rep. 567) the defendants who left the amount of the tax with the plaintiff for payment were on the bond of the mortgage and were compelled to pay the taxes in order to avoid a deficiency in foreclosure proceedings; and thus they paid the taxes twice,

App. Div.]

Second Department, April, 1908.

once to the plaintiff and again to the tax collector. In Sage v. Truslow (88 N. Y. 2+1) Styles was personally liable upon the mortgage which had been foreclosed, and the judgment for deficiency entered against Styles had been increased by the amount of the tax which Truslow had agreed to pay. The rule cited from Rector, etc., of Trinity Church v. Higgins (48 N. Y. 532) does not apply because, so far as the plaintiff shows, it does not appear that the agreement of Steckler was to "do any act to prevent damage to the plaintiff." The dismissal was "without prejudice and without costs." It may be that the plaintiff can state a cause of action, but I think that he has not done so in this complaint.

HOOKER, GAYNOR, RICH and MILLER, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.

SAMUEL H. COOMBS and ROBERT H. WILSON, Respondents, v. HERMAN JOERG, as Executor, etc., of MARY E. LOUGHRAN, Deceased, Appellant.

Second Department, April 24, 1908.

Evidence - presumption on failure to dispute bill rendered - rule as to

executors.

The rule that silence of a debtor after receiving a bill raises a presumption that liability is admitted does not apply in the case of executors to whom a bill is presented for services rendered to the testator during his lifetime. This because the reason of the presumption does not exist in that the executor has no personal knowledge of the justice of the account.

APPEAL by the defendant, Herman Joerg, as executor, etc., from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 31st day of May, 1907.

Charles F. Moody, for the appellant.

Robert II. Wilson, for the respondents.

JENKS, J.:

Second Department, April, 1908.

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[Vol. 125.

Conceding that the bill of the plaintiffs was rendered to the defendant as executor of Mary E. Loughran, yet I think that the direction of the verdict for the plaintiffs was error. The bill was for services rendered to Mary E. Loughran. The plaintiffs contended that proof of the rendition of this bill to the defendant as executor, of his retention of the bill without question or criticism or positive action, and marked by a lapse of time, made out a prima facie case. The court so held, and directed a verdict on the failure of the defendant to offer proof in dispute of the facts which I have stated. As between the parties to the transaction - "the original parties" - the delivery of a bill by the creditor followed by the silence of the debtor may, when accompanied by a lapse of time, be prima facie evidence of the justice of the claim. This rule rests upon the principle of an admission implied from silence. But such silence must be the silence of knowledge. SHAW, Ch. J., in Commonwealth v. Kenney (12 Metc. 235), well discusses this element, saying that the principle of tacit admission depends on two facts; "secondly, whether the truth of the facts embraced in the statement is within his own knowledge or not. So, if the matter is of something not within his knowledge; if the statement is made by a stranger, whom he is not called on to notice; or if he is restrained by fear, by doubts of his rights, by a belief that hissecurity will be best promoted by his silence, then no inference of assent can be drawn from that silence." But in the case of an executor, his own knowledge of the justice of a bill for services rendered to his testator cannot be presumed to exist, and hence the rule of implied admission should not have obtained in this case. (See Schutz v. Morette, 146 N. Y. 142.) I do not understand Matter of Callahan (152 N. Y. 320) to the contrary. The court, after saying that it had considered the general subject in Schutz v. Morette (supra), reiterated that mere silence of the executor, accompanied by lapse of time, would not preclude the executor from contest of the claim. And it further said: "But the claim does not become established from mere silence of the executor or administrator." The danger of the application of the principle of admission inferred from silence to the ease of the presentation of claims to an executor had been pointed out in a pre

App. Div.]

Second Department, April, 1908.

ceding paragraph of the opinion. The court but held in that case that when a claim has been presented and not rejected, and upon accounting no objection was made, then the surrogate could regard the claim as adınitted. Such a condition is quite different from that presented by the mere rendition of a bill followed by silence whereupon an action is brought. When a claim is presented as such pursuant to the statute,* the executor may require satisfactory proof thereof by voucher and by affidavit, and of no offsets, and he may enter into agreement for a reference thereof. If, however, it is not rejected or is not referred, but finally comes up on the accounting presented as a valid claim and then no objection is taken, much more can be inferred from the continued silence or omission of the executor than could be in the case of the mere presentation of a bill.

The judgment must be reversed and a new trial must be ordered, costs to abide the event.

WOODWARD, HOOKER, GAYNOR and MILLER, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

IDA E. LESTER, as Administratrix, etc., of FLORENCE V. LESTER, Deceased, Respondent, v. HARRY CRABTREE and Others, Appellants, Impleaded with EDMUND CRABTREE and CHARLES B. CRABTREE, Defendants.

Second Department, April 24, 1908.

Negligence - servant killed by cog wheels - failure to show freedom from contributory negligence.

An administratrix suing to recover for the death of an intestate must show affirmatively freedom from contributory negligence.

Where there were no eye-witnesses to the accident, mere proof that the intestate was heard to scream, and that her hand was found mangled by the cog wheels of a machine some minutes after she was seen cleaning part of the frame work, standing alone, is insufficient to prove freedom from contributory negligence.

* See Code Civ. Proc. § 2718.- [REP.

[Vol. 125.

Second Department, April, 1908. APPEAL by the defendants, Harry Crabtree and others, from an order of the Supreme Court, entered in the office of the clerk of the county of Orange on the 19th day of September, 1907, granting the plaintiff's motion made upon the minutes to set aside the direction dismissing the complaint at the close of plaintiff's case at the Orange Trial Term, and for a new trial of the action.

Charles C. Nadal [Harold S. Recknagel with him on the brief], for the appellants.

R. H. Barnett, for the respondent.

JENKS, J.:

I think that the original disposition of this case was correct, because the plaintiff had failed to adduce any proof that justified the conclusion that her intestate was free from contributory negligence. There was no eye-witness to the accident. While we may infer that the intestate's hand was caught in the moving cog wheels of the machine and her fingers thereby cut off, all else is but conjecture and speculation aside from the testimony of the sister and fellow-servant of the intestate that two or three minutes after she had seen the intestate cleaning some part of the framework of the machine she heard her sister scream, ran over to her and found her hand maimed. It is tersely and correctly said by SPRING, J., in Wilson v. New York Mills (107 App. Div. 99): "Submission to a jury implies controverted facts or circumstances from which contrary inferences may fairly be drawn. The isolated fact that an employee was killed in the course of his employment does not of itself permit a jury to find that the employce was free from fault contributing to his death. The plaintiff must show affirmatively his freedom from negligence, and if he utterly fails in this essential part of his case, the duty of the court to nonsuit still remains in spite of the Employers' Liability Act, for the reason that there is no fact to submit to the jury."

I think that the order for the new trial must be reversed and the dismissal affirmed, with costs.

WOODWARD, HOOKER, GAYNOR and MILLER, JJ., concurred.

Order for new trial reversed, with costs and disbursements, and dismissal affirmed, with costs.

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