Rider v. Union India Rubber Co. — 18 N.Y. Super. Ct. 85

Majority

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William Rider and Jona. Trotter, Assignees, &c., Plaintiffs and Respondents, v. The Union India Rubber Company, Defendants and Appellants.

Headnote

1. Where the chattels of one, by his consent, come to the possession of and are used by another until worn out and rendered valueless, the owner may recover the fair value of such use, unless it be proved that the permission was given and accepted as a gratuity, and without any expectation of reward therefor.

2. The owner may recover for such use, although it was begun and continued in the mutual expectation that the party so using the chattels would purchase them, and notwithstanding the managing agent of such party, under whose direction the use was made, in good faith believed that his principal had purchased them.

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3. But the statute of limitations is a bar to a recovery for the use for any period antecedent to six years before action brought.

4. When an agent or officer of a corporation, in good faith, in the proper discharge of his duty, applies his own money or makes use of his own chattels for the proper uses of the corporation, he may recover for such money or such use.

5. Although an agent or officer cannot, as such, make a contract with himself, and so bind his principal to himself, his principal is nevertheless bound to pay for property used by his agent, in the faithful discharge of his duty, for purposes within his authority, and the measure of compensation is the fair value of the property so used.

6. Although the by-laws of a corporation require the officers and agents to enter all the business of the Company in its books, their neglect to do so (though it may subject them to liability if the Company sustain damage from such neglect) will not operate as a forfeiture or otherwise to deprive such officers of a just compensation for the use of chattels" furnished by them to the corporation for the purposes of its business.

(Before Bosworth, Ch. J., and Woodruff and Moncrief, J. J.)

Heard, June 6th;

decided, July 9th, 1859.

The judgment recovered by the plaintiffs in this action having been reversed and a new trial ordered at the February Term, 1859, the action was again brought to trial on the 20th of April, 1859, before Mr. Justice Slossoh and a jury. The pleadings and most of the facts appeared as stated in the former report. ( 4 Bosw., 169 .)

The plaintiff formally waived any claim to recover the value of the chattels mentioned in the complaint, and sought to recover so much as the use thereof by the defendants was reasonably worth.

It was shown that the plaintiffs, at the time the articles went into the possession of the defendants, were two of the five trustees mentioned in the defendants’ certificate of incorporation, by whom the Company was controlled and managed, and the one was also President and the other Treasurer of the corporation. Emory Rider was also a trustee, and was the manager of the manufacturing department of the Company’s business, and he took possession of and used the articles in question, with the knowledge and assent of the plaintiffs, to whom they belonged, as assignees of a former firm of Goodyear & Ely. Emory Rider knew that the articles never belonged to the firm of Rider & Brothers, and that they were not included in the purchase made

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by the defendants when they (through their President) bought the machinery, tools, &c., of that firm for $30,000. But Emory Eider, the managing agent, also knew that it was the expectation of the plaintiffs, as assignees of Goodyear & Ely, to sell these articles to the defendants, and supposed that the defendants had purchased them from the plaintiffs.

The defendants objected to any oral testimony that the property in question was not included in the purchase from Eider & Brothers, and also to any testimony to prove what the use of the articles was worth.

The record of a former judgment between the same parties, in which it was found and adjudged that the defendants did not purchase the property from the plaintiffs, was given in evidence. The defendants waived any claim that they ever purchased the property from the plaintiffs, -but insisted, (notwithstanding the testimony of Emory Eider, above mentioned, and that of other witnesses to a similar purport,) that the articles were included in their purchase from Eider & Brothers, made December 4th, 1848.

The by-laws of the Company were given in evidence. The 5th and 8th contain the following provisions:

“ 5th. The duties of the President shall be to preside at all meetings of the corporation and trustees, sign all certificates of stock, make all purchases for the corporation, superintend the sale of all the goods of the Companyfor cash, or on time, according to his best judgment, and turn over the proceeds as fast as received, whether in cash or paper, to the Treasurer; employ and pay such persons as may be necessary to carry on the business in his charge, and discharge them at pleasure. * *

“ 8th. All business done for the Company by any officer, agent or servant of the Company, shall be done in the name of the Company, and entered on the books of the same.” * *

Other facts also appearing on the former trial will be found noticed in the opinion of the Court.

The defendant’s counsel then moved that the complaint be dismissed on the grounds:

1st. It is in proof that the defendants commenced using the property in November, 1848, and demand was made October 1st, 1855 or ’56, and therefore no action could be brought for the property.

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2d. There is no proof of hiring, and no rent or value of use can b,e recovered unless there be a hiring.

Sd. The plaintiffs not being able to recover the property, cannot recover for the rent.

The motion was overruled, and an exception taken upon each ground by defendants’ counsel.

After counsel had summed up the case, the Judge charged the jury as follows:

The defendants claim that they took possession and have used the property as purchasers thereof from Rider & Brothers, under the resolution of November, 1848, that they took possession as purchasers, with the consent of the plaintiffs 'and of Rider & Brothers, in the belief that all such articles were included in the purchase from Rider & Brothers.

If the plaintiffs included in their purchase from Rider & Brothers the articles in, question, or if they acquiesced in the payment of the $80,000 by the defendants, and consented to their taking possession and using the articles under the belief that such articles were included in the purchase, they are now estopped from claiming title in themselves as assignees of Goodyear & Ely, and cannot recover for the articles, and the defendants will be v entitled to a verdict.

If, on the contrary, the articles were not included in the purchase, and the plaintiffs did not acquiesce in the payment of that sum by the defendants, nor consent to their taking possession of and using the articles under a belief that the ■ articles were included in the purchase, then the plaintiffs are entitled to recover the value of the use for the period during which the property was used, within six years anterior to the commencement of this suit, (October 10, 1856,) as you shall find that value to be under the evidence, with interest from the commencement of suit.

The defendants except to that part of the charge which allows a recovery for the use for any portion of time—more than six years having elapsed since they began the use, and also as to that part which allows the jury to find interest, it being an unliquidated account.

The jury found a verdict for the plaintiffs, assessing their damages thus:

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For the use of the property,....................... $500 00

For interest thereon,............................. 88 50

$588 50

The defendants moved for a new trial, which was denied, and from the order, and also from the judgment entered on the verdict, the defendants appealed.

A. Thompson, for the defendants, (appellants.)

I. It is clear that the plaintiffs were the assignees of Goodyear & Ely, and that the property named in the complaint was in the possession of the plaintiffs as such assignees prior to the incorporation of the defendants; that part of it was on Rider & Brothers’ premises at Harlem, intermixed with their property, and more or less used by Rider & Brothers, till the defendants purchased from Rider & Brothers all the property used by them, through their president, Trotter, December 4, 1848.

It is also clear that the residue of the property was in Rider & Brothers’ possession, 71 Liberty street, and that the same was removed to the defendants’ premises by the plaintiffs.

II. It is also clear that the defendants were incorporated September 29, 1848.

That all the stock taken at its formation, and up to December 4, 1848, was taken by Trotter and Rider & Brothers, being $170,000, and which was paid for in property purchased by resolution of November 15, 1848, and that Jonathan Trotter was the President, William Rider the Treasurer, and Emory Rider the Factory Manager, and John Rider the Assistant Factory Manager, and that the defendants never purchased or hired any part of said property from the plaintiffs, (assignees of Goodyear & Ely;) but that Trotter, William Rider, Emory Rider, and John Rider, shortly after the defendants’ incorporation, (they being then the virtual owners of the incorporation,) commenced using the property named in the complaint that was at Harlem, and continued its use till after they had sold out their stock, and that they wore out the property by such use, (except what Trotter took and sold in October, 1855,) before the plaintiffs ever raised any question respecting the property, and then by their suit of October 2d, 1854, they claimed, as assignees of Goodyear &Ely,

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to have sold it to the defendants in January, 1849, which was decided against them.

III. The defendants claim that the articles were obtained by them under the purchase of 4th December, 1848, but that, if not so purchased, the plaintiffs are estopped from denying a purchase ; and this claim is well founded. Because:

1st. The plaintiffs originated the incorporation of the defendants for the purpose of disposing of their India rubber property; put out their prospectus, and did, by the resolution of 15th November, 1848, and contract of December 4th, 1848, sell all such property to the defendants, without reservation, “ and other fixtures used by them in and about their rubber manfactory at Harlem.”

2d. The plaintiffs continued the controlling officers of the defendants, using the same articles, for more than six years, without an intimation that the defendants did not purchase this property. (3 Paige, 554; 18 Barb., 437 ; 19 Wend., 563 ; 16 Barb., 613 ; 1 Johns. Ch., 354 .)

3d. The fifth by-law and eighth by-law show the manner in which purchases should be made; and the defendants purchased by resolution—the parties not .being able to buy and sell to themselves, nor to hire their own property to themselves.' ( 20 Barb., 468 .)

4th. Rider and Trotter caused a confusion of goods, and if there be a loss they must bear it. (2 Kent, 364, 365.)

5th. The plaintiffs do not claim to have hired this property to the defendants.

IV. The part of the charge not excepted to is in accordance with the former decision of this Court on the former appeal, and if the case be looked at, independent of the testimony of Trotter and the three Riders, the two first paragraphs of the charge are clearly made out in favor of the defendants; but the Judge erred in admitting improper testimony to show what the defendants purchased, or believed they purchased, and to which the defendants excepted. Because:

1st. Corporations can only speak or express their intentions by their corporate seal, or resolution. (2 Kent Com., 289-292.)

2d. Trotter & Riders knew the by-laws, which prohibited anything ’being done, except it was entered on the books of the

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Company, and they have entered nothing showing what was included, or intended to be included, in the defendants’ purchase of November 15 and December 4, 1848, except the resolution.

3d. Those four witnesses are swearing to an intended contract that could not be made in accordance with the by-laws or the law of the land. ( 20 Barb., 468 ; 6 Pick., 198 ; 7 N. H., 446 .)

4th. These four witnesses, while swearing to their own- knowledge or intentions, cannot swear to the knowledge or intentions of the Company, not having obtained' such knowledge as agents of the Company. ( 20 Barb., 468 .)

5th. There is no proof of ratification by the defendants of any act of these four witnesses, and even ratification would not make a contract which cannot legally be made. (17 N. Y. R., 453.)

V. The Judge authorized the jury to find for the plaintiffs (in a certain event) the value of the use of this property for six years anterior to the commencement of the suit. This part of the charge was excepted to.

The Judge refused to dismiss the complaint, which was excepted to.

The Judge allowed evidence of the value of the use, which was excepted to.

These exceptions are well taken. Because:

1st. Value of the use—is, in plain English, rent; and there is no action known in the law for rent or use or value of use, unless there be an agreement creating a tenancy, or hiring, express or implied. ( 6 Johns., 46 ; 1 Cow. Trea., 154; 13 Johns., 489 ; 2 Saun. Pl. and Ev., 78; 13 Johns., 240 ; 25 Barb., 243 ; 1 Denio, 37 .)

2d. The facts show there was no hiring.

3d. There could be no hiring by law. ( 20 Barb., 468 ; 17 N. Y. R, 453.)

4th. There can be no implied contract where there could not be an express contract. (17 N. Y. R., 453.)

5th. The previous decision of the Court is, that the defendants did not tortiously take possession of the property.

The proof shows that the plaintiffs caused it to be used; a voluntary courtesy for which they cannot charge. ( 20 Johns., 28 .)

6th. There being no possibility of a contract, one cannot be made by a demand of the property;. the defendants not being guilty of a tort before the demand, could not be guilty of one till

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they refused to give up the property; but they gave up the property. ( 3 Hill, 348 .)

7th. The statute of limitations is well pleaded to the whole complaint, therefore there never was a tortious taking.

8th. The plaintiffs probably imagine there was a tort committed by the plaintiffs as defendants’ authorized agents upon the property, (2 Kent Com., 284,) which they can waive and bring assumpsit; but there being no tort, they waive nothing.

The law is uncertain whether assumpsit can be brought in any such case, unless the property be sold and turned into money; but it seems certain that there must be an express or implied contract as well as a tort, before the tort can-be waived, and a suit instituted on the contract, ( 5 Denio, 370 .)

But there can be no implied contract where there could not be a contract. (17 N. Y. R., 453.)

VI. The Judge erred also in directing the jury to find interest ; as the claim was in every sense an unliquidated one.

John T. Hoffman, for the plaintiffs, (respondents.)

I. This is a fair case of bailment of chattels for a compensation, and possesses all the ingredients which are essential to a contract for hire. (Story on Bailments, ch. ent. “ Contracts of Hire.”) The defendants used and enjoyed the plaintiffs’ property. And the law implies a promise on their part to pay for the use, in recognition of that “ universal obligation which rests upon every man to render a just equivalent for the use of that which does not belong to him.”

II. The defendants insisted that no hiring was proved, and, therefore, no “ rent or value of use could be recovered,” and thus confound “rent” which is a profit issuing out of lands, &c., with “ value of use,” which appertains to a bailment of chattels. The cases cited showed that rent could not be recovered unless the relation of landlord and tenant was proven to exist. It is needless to say they have no bearing upon the point in question.

III. Because the law would hot recognize a purchase by Rider and Trotter as trustees of the Company of themselves as trustees of Goodyear & Ely, it does not follow that it will permit the Company to have the gratuitous use of the property, and deny all relief to the estate to which it belongs.

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IY. Interest was allowed from the commencement of the action. The demand was no more unliquidated than any demand arising upon a quantum meruit or valebant. The defendants were in default from the commencement of the action. The verdict which fixed the amount of value related back to that period, and interest from that time is essential to plaintiffs’ indemnity. (McIlvaine v. Wilkins, 12 N. H., 474 ; Doyle's Adm'rs v. St. James' Church, 7 Wend., 178 ; Feeter v. Heath, 11 id., 479; Rens. Glass Factory v. Reid, 5 Cow., 587 .)

Y. The questions of fact in the case were submitted to. the jury precisely in conformity with the opinion of the Court rendered on the previous appeal, and the finding of the jury was fully warranted by the evidence.

It must be deemed established that the defendants did not purchase the articles for the use of which a recovery has been had by the plaintiffs.

That those articles belonged to the plaintiffs, as assignees of Goodyear & Ely, is not controverted. It is not claimed by the defendants that they made any purchase thereof from the plaintiffs. There was no evidence given on the trial that the articles were in fact included in the purchase made by the defendants from Rider & Brothers: on the contrary, the proof is full and uncontradicted that they were not included in that purchase. The jury have found that the plaintiffs did not include them in that purchase, and did not acquiesce in the payment to Rider & Brothers of the purchase money, consenting that the defendants take possession thereof, and use them under the belief that they were included in such purchase.

There was no evidence given on the trial that any agent or officer of the defendants ever supposed that the defendants ha,d in fact purchased the articles in question from anybody, except in the testimony of Emory Rider, who says he expected the Company would buy it, and supposed that the Company had bought it from the plaintiffs, having himself proposed to do so to the plaintiff Trotter. If the judgment record in a former action which was read on the trial be regarded as showing that the plaintiffs once claimed that they had sold the articles to the defendants, the entire record conclusively establishes that they had not.

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The main fact stands, therefore, prominent and free from doubt.

The defendants came to the possession of the plaintiffs’ goods, and by the plaintiffs’ consent have used them for many years, until in fact they are worn out or nearly so.

There is no ground for saying that either the possession or use of the property was tortious, for the owners were consenting to both.

Upon this fact alone, if the question arose between two individuals, it would not be doubtful that the party so using the other’s property was bound to pay what such use was reasonably worth, unless it was clearly shown that the permission to use was "given and accepted without any expectation of reward therefor.

Here there was, on the part of the plaintiffs, and on the part Of such agents of the defendants as are shown to have been aware of what was done, an expectation that the defendants would purchase the articles; so that there is no ground for saying that the plaintiffs or the agents of the defendants at any time supposed the plaintiffs were not to receive an equivalent for the property. Fo purchase having been actually made, the property was used by the defendants, the plaintiffs consenting to such use. "

It is, however, insisted that the relation which the plaintiffs bore to the defendants forbids the idea that the defendants contracted with them to pay for the use of the property; that if there could be no express contract, none can be implied; that the plaintiffs, by voluntarily suffering their property to be used in common with the property of the defendants, and without any express contract for payment, have only confused their goods with those of the defendants, and must bear the loss, or, at most, it should be treated as a voluntary courtesy, out of which no claim to compensation arises.

The act of incorporation declares that the Company (the defendants) “shall be under the control of and be managed by five Trustees, and the first Board of Trustees shall be composed of the following persons, viz.: Jonathan Trotter, Elihu Townsend, Fichólas Dean, William Rider, and Emory Rider, who shall manage the affairs of this Company until the third Monday of January, A. D. 1849, and until others are elected in their stead.”

In the arrangement of their business under the by-laws, a manager and assistant were to be appointed, who should “have the

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entire management of the manufacturing part of the business, under the direction of the President,” &e.

The plaintiffs,' Jonathan Trotter and. William Rider, were appointed, the former President and the latter Treasurer of the Company. Emory Rider was appointed Factory Manager and John Rider Assistant Factory Manager, and one Bellows was appointed Secretary.

In this state of the organization, the articles in question being held by the President and Treasurer, as assignees, and being at the Company’s manufactory at Harlem, it is shown that the Company had use for the machinery, &c., (constituting the articles referred to,) for the purposes of their manufacturing department. Emory Rider, the Managing Agent of the Company, (knowing that the property was fbr sale, expecting that the Company would buy it, and, indeed, supposing at the time that the Company had purchased it from the plaintiffs, he having proposed to one of the plaintiffs that the Company should do so,) took possession of the articles and used them in the manufacturing business of the Company—the articles being-such as are used in that business, and the Company having use therefor.

John Rider, the Assistant Factory Manager, was aware that the articles belonged to the plaintiffs as assignees of Goodyear & Ely. He was aware of the use thereof in the business of the Company. Whether the Secretary of the Company (Bellows) had any knowledge on the subject does not appear.

Three of the five Trustees of the Company under whose control and management it was, and their Assistant Factory Manager, knew the fact and assented to it, and although the other two Trustees are not shown to have been consulted, it is only just to presume that during the eight years the property remained in the use of the Company, they did their duty, so far, at least as to inform themselves on the subject, when nothing appears to have been clandestinely or fraudulently done.

Having thus had the beneficial use and enjoyment of the property by the owners’ consent; there being no evidence of any expectation on the part of any one that such use was gratuitously furnished without expectation of reward, there seems no good reason why the defendants should not pay the fair value of such use. On the contrary, it is obviously just that they should pay

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such, value unless there is some principle of law which deprives the plaintiffs of the power to demand compensation.

We perceive no rule of law which prevents the agents of the Company acting in good faith, charged with the conduct of the manufacturing department, making a necessary and proper use of the machinery in question, for the purposes of the business, merely because it belongs at the time to some other officers or agents of the Company. Had the managing agent of the Company so taken and used the property of a person having no connection with the Company, with the owner’s consent, and such use had been actually known to and approved by several officers of the Company and acquiesced in by all, and had continued for several years, without dissent or objection, it would be rather late to raise the objection of want of power in such agent to bind the Company to pay a fair and reasonable compensation for such use.

How then does the fact that Trotter & Rider, the owners of the property, were at the time President and Treasurer of the defendants, affect the question?

In the first place it was not their sole act. The very person who, by express appointment of the Trustees under the by-laws, had the “entire management of the manufacturing business,” took the articles for use and used them for the Company, and the continued acquiescence of the Company for several years, so far as appears by any proofs given by the defendants, sufficiently indicates approval, unless they be assumed to have been grossly inattentive to their duties. So that in this aspect Emory Rider must either be taken to have acted in pursuance of authority sufficient to bind the Company; or if his powers did not extend to the use of machinery of a third person under an implied obligation to pay for such use, then the continued use and the enjoyment of the benefit thereof by the Company are sufficient to amount to a ratification.

But secondly. Viewing this transaction as the act of the President and Treasurer, in connection with the Managing Agent, the result is the same.' It may be conceded for the purpose of this present point, that Trotter or Trotter & Rider as assignees, could not contract with Trotter as President of the defendants, nor with Trotter & Rider as President and Treasurer of the defendants; upon the principle that no person can make a contract

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with himself, or that an agent cannot bind his principal to a contract with himself, or that a trustee cannot bind the trust estate by a contract for the benefit of himself in his own right nor in any other capacity.

What follows? Not necessarily that, when he in good faith, in the proper discharge of his duty, parts with money or property which the purposes of the principal, or the exigencies of the trust estate require, such principal or such trust estate may have the use and benefit of such money or property without paying or allowing any compensation.

When an agent or trustee so acting makes a claim, it must undoubtedly appear that what was done was done in good faith, and for the benefit of the principal or of the trust estate. And where the nature of the transaction is such as to allow it, the principal or the cestui que trust has an option to disaffirm the transaction and restore the benefits derived therefrom. But moneys expended and property applied by the agent in the faithful discharge of his duty, and for purposes within his authority, must be paid for by the principal; and the claim of the agent to be paid therefor is as clear as his right to require for his services what they are reasonably worth, or as the right of a third person would be from whom the agent procured like property. It is true that the agent cannot by an express contract fix the price and terms, &c., with himself, and therefore all he could claim would be the fair value.

So here Trotter & Rider could not, on behalf of the Company, agree to pay Trotter & Rider a fixed sum for the use of the articles in question and bind the Company to pay that price, but if the articles were needed and were in good faith used for the benefit of the Company in the proper conduct of the business, we have no hesitation in saying that the Company was bound to make fair and reasonable compensation therefor.

The various questions of law urged upon our attention on the argument of the appeal, are chiefly in entire consistency with these views; the difference between our conclusions and the claim of the appellants lies chiefly in determining what rules of law are applicable to the facts proved and found.

It is doubtless true that a corporation cannot ratify an act of its agents which the corporation itself had no power to do. Nor an

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act which it could only do in a particular manner, where that mode is not pursued. This was held by us in Brady v. The Mayor, &c. (2 Bosw. R., 178.)

But here we perceive no want of power in the Company to procure and .use any machinery necessary for the conduct of its manufacturing business, and, when so procured by its agents, to accept, approve, or ratify the act directly or by acquiescence.

It is true that the by-laws require that the agents enter all the business of the Company in its books, but their neglect to do so, (however it may subject the agents to censure or to damages if the Company suffer injury by the neglect,) does not make the act void.

. So the law will not imply-a contract where the corporation had no power to make an express contract to the same purport. (Brady v. The Mayor, &c., supra, and Peterson v. The Mayor, &c., 17 N. Y. R., 449.) But here no want of power in the corporation is shown, and the procurement and use of the property in question might be done by the agents of the corporation and might be approved or sanctioned in any of the modes in which a corporation may act in the exercise of its ordinary powers for the' purposes of its legitimate business.

The previous decision in this case at Greneral Term, (February 19, 1859,) sustains the. charge of the Judge on the trial in all respects which relate to the question of title to the property itself, and the circumstances under which the plaintiffs would be estopped, to claim title to the property.

The exception to so much of the charge as allows a recovery for the use of the property, (which exception seems to proceed on the idea that because the use commenced more than six years before suit brought there can be no recovery for the use during any subsequent years,) was not strenuously urged on the argument. We perceive nothing in this part of the charge of which the defendant can complain. If one has by the consent of the owner had the use of another’s property for ten years, no compensation being stipulated, certainly the statute of limitations, if it has barred the recovery of any part of the value oí the use, cannot affect the liability for any sum which has accrued within the six years. (Davis v. Gorton, adm., 16 N. Y. R., 255.) No part of a debt is barred by the statute which if a suit had been

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brought six years earlier might not then have been collected, that is to say, which was not then payable.

The exceptions to the admission of evidence do not seem to us well taken.

The first is to the question put to the factory manager, whether, at the time the Company purchased from Rider & Brothers, he pointed out to the President the property held by him and Rider as assignees ?

This question was proper, as tending to show that that property was not, as the defendants now claim it to have been, included in the defendants’ purchase from Rider & Brothers. A similar observation may be made of the testimony of William Rider, that he knew what the Company bought of Rider & Brothers, and that that purchase did not include the property in question. This, also, went directly to one of the grounds of defense, and tended directly to establish the title of the plaintiffs to recover for the use of the property.

The objections taken to proof of the value of the use of the property are sufficiently disposed of by what has already been said. In the absence of an express contract fixing the price of the use, its fair and reasonable worth was the measure of the plaintiffs’ recovery.

An exception was also taken to the ruling by which the record of a former judgment between these parties was admitted in evidence. We find nothing in the appellants’ points in support of this exception. The record was competent evidence that although the defendants did not now claim to have purchased the property from the plaintiffs, the claim now in controversy was not a stale claim made after the lapse of many years under circumstances indicating that the plaintiffs were conscious either that the property was included in the sale of the machinery, &e., of Rider & Brothers, or that there never was any expectation on the part of either that the defendants should make any compensation for the property.

We think? the order denying a new trial was properly made, and that there was no error committed on the trial.

The j udgment, and the order denying a new trial, must both be affirmed.

Judgment and order affirmed, with costs.