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the goods from William M. Tivoli & Co., and this action is now brought to establish his title to the goods.
The defendant's main reliance is upon its defense that it is an innocent purchaser for value. In a suit by the true owner to recover the goods against a person who claims under the fraudulent vendee, the burden is upon the party claiming such title of proving that he is a purchaser in good faith and for value. Stevens v. Brennan, 79 N. Y. 254. This defense the defendant failed to establish. In fact, the plaintiff, upon his direct case, rather established that the defendant was not a purchaser for value. He presented testimony tending to show that the representations of Robinson were made, not only by himself, but by one Acron, a co-conspirator with him; that Tivoli was present at times while Robinson was still in possession; that Acron remained with Tivoli after he purchased the café, either a partner or having an interest in the proceeds; that Tivoli or his attorney knew of the many liens filed against the premises; and that Tivoli's attorney, Apfel, admitted that Wardman, the original purchaser from Robinson, was only a go-between. This admission was made while Apfel was attorney for the Tivolis individually, and not for the company, under circumstances that would not make it evidence as against Tivoli; but it was admissible to show that Apfel had knowledge of this fact at the time he made this admission. Thereafter Apfel and Tivoli formed a corporation, William M. Tivoli & Co., and purchased the goods from Tivoli. The corporation, when organized, had only five stockholders. Tivoli and his wife had one-half of the stock, and Apfel, his brother, and a Mr. Herman had each one-sixth. It must be conceded that Apfel's brother and Mr. Herman had no knowledge of the false representations; but they testify that they had nothing to do with the purchase by the corporation, but left everything to Apfel, the attorney. Since he represented the corporation in this purchase, and had knowledge of the facts, this knowledge is brought home to the corporation, and it is not an innocent purchaser.
All that the defendant showed to establish its defense was that Apfel's brother and Herman were innocent purchasers of the stock of the corporation. The defendant did not put Wardman or either of the Tivolis on the stand, who might have testified to facts showing that they were innocent purchasers; and, from all the circumstances of the case, I feel that the trial justice held correctly that neither the corporation nor any intermediate purchaser was an innocent purchaser.
The only error of the trial justice was on the question of value and in the form of his judgment. The testimony on the direct examination of the plaintiff was to the effect that these chattels were reasonably worth $500; but, when recalled by the defendant, he testified, in answer to a question from his own attorney, that when taken out they were worth only $300, as the price of copper had gone down, and they were somewhat battered. The judgment is also incorrect in form, as it awards a money judgment as damages and the goods are in the plaintiff's hands. The judgment must be modified, and award to the plaintiff simply the possession of the chattels recovered and his costs.
vacate the judgment. This motion was made upon the ground that the judgment was not rendered within the 14 days provided by the Municipal Court act (Laws 1902, p. 1486, c. 580). The record showsthat a stipulation was made upon the trial that the parties should submit briefs on or before June 23d, and that the justice should have two weeks to make his decision after the receipt of the last brief. The defendant denies that the stipulation was made in that form, but we are bound by the record of the trial judge. On June 23d the defendant, instead of sending its brief to the courthouse, mailed it to the residence of the justice, who had removed to New Jersey for the summer. It was then forwarded to his summer residence, and he received it on June 26th. It seems to me that, where attorneys use an unusual way of delivering a brief, they are not in any position to object to the validity of a judgment, where the possible invalidity is caused by themselves. The justice was correct in considering that he had 14 days from the actual receipt of the brief within which to decide the case.
The judgment should be modified, as indicated above, and, as so modified, affirmed, with costs, and the order appealed from should be affirmed, without costs. All concur.
(62 Misc. Rep. 635.)
ECKSTEIN v. SCHLEIMER.
(Supreme Court, Appellate Term. April 8, 1909.)
1. COURTS (8 57*)-Procedure--StenOGRAPHERS-COMPENSATION.
A stenographer, employed by a referee to take testimony, can sue either party to the reference for his fees, because a joint and several promise to pay is implied by law against both parties through the acceptance of his services, and this promise is not negatived by the terms of the order of reference, charging the expense to the defeated party, unless he knew of these terms before the reference.
[Ed. Note. For other cases, see Courts, Cent. Dig. § 200; Dec. Dig. § 57.*]
2. ESTOPPEL (§ 88*) — EQUITABLE ESTOPPEL· GROUNDS CLAIM IN JUDICIAL PROCEEDINGS-BILL OF Costs.
A bill of costs, containing an item for stenographer's fees, taxed by the successful party on a reference, though constituting an admission of liability for the stenographer's services, does not create a conclusive estoppel, precluding the party from disputing the amount of the stenographer's claim for fees, in the absence of showing that the latter has acted on such admission to his detriment.
[Ed. Note. For other cases, see Estoppel, Cent. Dig. § 239; Dec. Dig. § 88.*]
3. CUSTOMS AND USAGES (§ 5*)-REQUISITES-GENERALITY.
A custom, to be admissible in evidence as such, must be general.
[Ed. Note. For other cases, see Customs and Usages, Cent. Dig. § 4; Dec. Dig. 5.*]
4. CUSTOMS AND USAGES (§ 6*)-REQUISITES-UNIFORMITY.
A custom, to be admissible in evidence as such, must be uniform.
[Ed. Note. For other cases, see Customs and Usages, Cent. Dig. § 5; Dec. Dig. § 6.*]
For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
5. CUSTOMS AND USAGES (§ 7*)—REQUISITES REASONABLENESS.
The custom of unofficial stenographers to charge 25 cents a folio for transcribing testimony upon a reference, instead of 10 cents, the rate allowed to official stenographers by Code Civ. Proc. § 3311, is unreasonable, and cannot be enforced, though this section of the Code applies only to official stenographers.
[Ed. Note. For other cases, see Customs and Usages, Cent. Dig. § 7; Dec. Dig. § 7.*]
6. COURTS (8 57*)-PROCEDURE-STENOGRAPHERS-COMPENSATION.
To sustain an implied contract to pay a stenographer 25 cents a folio for transcribing testimony upon a reference, he must show that his services were reasonably worth that sum.
[Ed. Note.-For other cases, see Courts, Cent. Dig. § 200; Dec. Dig. § 57.*]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Goldie Eckstein against Abraham B. Schleimer. From a judgment for plaintiff, defendant appeals. Reversed.
Argued before GILDERSLEEVË, P. J., and SEABURY and LEHMAN, JJ.
Abraham B. Schleimer, in pro. per.
Andrew F. Murray, for respondent.
LEHMAN, J. The plaintiff is an unofficial stenographer employed by a referee to take testimony at a reference ordered by a justice of the Supreme Court in an action then pending in which the defendant herein was the plaintiff. The order provided for a reference upon condition that the defendant in that action file an undertaking as security for the expenses of the reference if the issues should be determined adversely to him, and that the costs of the reference be charged to the defeated party. The defendant in that action thereupon filed such undertaking, the reference was had, and the referee determined the issues in favor of the plaintiff, the defendant herein. The plaintiff in this action was employed by the referee as stenographer, and brings this action against the successful party, claiming the sum of 25 cents for every folio transcribed by her and the sum of $5 for every hearing at which she was present, but which adjourned without taking any testimony.
The plaintiff was allowed to testify that it was a general custom among stenographers to charge 25 cents per folio for transcribing testimony at a reference; to charge 21⁄2 folios for every page of testimony, regardless of how many words are contained on each page; and to charge $5 for every hearing adjourned without taking testimony. She also introduced in evidence the bill of costs, which the defendant in this action had taxed as the successful party on the reference; said bill of costs containing an item of $244.90 for stenographer's fees. It was, however, shown that this bill of costs and the judgment entered thereon were amended nunc pro tunc by an order made on the defendant's motion, but after the beginning of this action. The trial justice, after considering this evidence, rendered judgment for the plaintiff for the full amount of the fees claimed for tran
scribing the testimony, but not for the fees claimed upon the adjourned hearings.
The plaintiff herein had a right to sue either party to the reference for her fees, because a joint and several promise to pay for the expense of the stenographer is implied by law against both parties to a reference through the acceptance of the stenographer's services. Coale v. Suckert, 18 Misc. Rep. 76, 41 N. Y. Supp. 583. Nor is this implied promise negatived by the terms of the order of reference, charging the expense to the defeated party, unless it is shown that the stenographer knew of these terms before the reference. Thornton v. Tuttle, 20 Abb. N. C. 308.
The learned trial justice, however, erred in finding that the bill of costs created an estoppel against the defendant. Leaving aside the question of the effect of the order striking out the items nunc pro tunc, the bill of costs was taxed in an action wherein this plaintiff was not a party; nor is it shown that she has in any way acted upon the admission therein contained to her detriment. The bill of costs, however, properly admitted as an admission by the defendant of his liability, was certainly not conclusive against him. It appears that the plaintiff herein had already demanded this amount from him, and it may well be that the defendant, at that time, had considered, not the question of the amount of the bill, but only his liability as one of the parties to the reference, and therefore made his affidavit that he had incurred this expense. It is, however, probable that the trial justice, when he used the word "estopped," did not intend its technical meaning, but correctly regarded this bill of costs only as an admission, because he bases his judgment also upon the plaintiff's testimony as to the custom of stenographer's charges, and has deducted the amount of the charge for five attendances, which, he says, she admits that she had no right to charge for. I can find no such admission upon the record, and in the absence of an admission on the record, solemnly made by the plaintiff, the trial justice would be obliged to include this item, even though it appears that she had no right to make this charge, if he believed that the defendant was estopped by his bill of costs from disputing the amount of the plaintiff's bill.
Since the bill of costs did not constitute a conclusive estoppel against the defendant, the judgment should be reversed, because there is no testimony of the value of the services, except the testimony of the plaintiff as to stenographer's charges. The Code of Civil Procedure has, in section 3311, fixed the rate to be charged by official stenographers in the Supreme Court at 10 cents a folio. While it appears that an unofficial stenographer employed at a reference is not limited by this section, which applies only to official stenographers (Varnum v. Wheeler, 9 Civ. Proc. R. 421), the court should view with suspicion the testimony of an interested party that a general custom exists to charge 21⁄2 times this amount upon a reference. That such a custom exists among a large number of stenographers is probable; but, to be material on the issues of this case, it must be a general and uniform custom. Since the plaintiff has been shown by the trial justice's decision to have been mistaken in regard to her testimony as to the customary charges upon an adjourned hearing, I am constrained
to believe that she is mistaken in regard to the customary charge for transcribing the testimony. If, however, she is not mistaken in this testimony, and such a custom exists and is general and uniform, then I believe this court should state absolutely and unequivocally that this custom is unreasonable and reprehensible, and cannot be enforced; that, to sustain an implied contract to pay 25 cents a folio for transcribing testimony, the plaintiff must show that her services were reasonably worth such sum.
The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.
RIKER v. GWYNNE
(Supreme Court. Special Term, New York County. September, 1908.) 1. BANKRUPTCY (§ 284*)-FRAUDULENT TRANSFERS-RIGHT OF TRUSTEE TO SET ASIDE.
A trustee in bankruptcy may sue to set aside a fraudulent transfer of property without the return of execution unsatisfied.
[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 284.*]
2. COSTS (§ 246*)—SECURITY for Costs.
An action by a trustee in bankruptcy to set aside a conveyance as in fraud of creditors was not a cause of action "arising before the assignment, the appointment of the trustee, or the adjudication in bankruptcy," within Code Civ. Proc. § 3268, subd. 4, authorizing defendant in such an action to require security for costs, though the creditors had a cause of action to set aside the conveyance before the adjudication in bankruptcy, and had obtained judgment, on which execution was returned unsatisfied, before the adjudication in bankruptcy, so that defendant was not entitled to an ex parte order requiring the trustee to give security for costs on appeal.
[Ed. Note. For other cases, see Costs, Dec. Dig. § 246.*]
Action by one Riker, as trustee in bankruptcy, against one Gwynne. Judgment for defendants. On motion by plaintiff, a trustee in bankruptcy, to vacate an ex parte order, made at the instance of defendant, requiring plaintiff to furnish $250 security for costs, to secure costs that may accrue on an appeal by the trustee in bankruptcy from a judgment in favor of defendant in an action by the trustee in bankruptcy to set aside a transfer of real estate, on the ground that it was made with the intent to hinder, delay, and defraud creditors. The ex parte order for security for costs was based on an affidavit that showed that the principal creditor of the bankrupt had obtained judgments on which executions were returned unsatisfied before adjudication in bankruptcy. Motion granted.
See, also, 129 App. Div. 112, 113 N. Y. Supp. 404.
H. Necarsulmer (M. J. Kohler, of counsel), for the motion.
BISCHOFF, J. The order requiring the plaintiff, trustee in bankruptcy, to furnish security for costs, was obtained ex parte under