UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Faculty Library REPORTS OF OASES ARGUED AND DETERMINED SUPREME COURT STATE OF NEW YOEK. BT ABRAHAM LANSING, COTTN8ELOK-AT-LAW. VOL. VI. NEW YORK: BANKS & BROTHERS, LAW PUBLISHERS, No. 144 NASSAU STREET. ALBANY: 476 BROADWAY. 18T3. y V' (Q Entered according to act of Congress, in the year one thousand eight hundred and seventy-three, BY BANKS & BROTHERS, in the office of the Librarian of Congress, at Washington. JUSTICES OF THE SUPREME COURT D USING THE YEAB 1873. First District : DANIEL P. INGRAHAM. ENOCH L. FANCHER. NOAH DAVIS. JOHN R. BRADY. GEORGE C. BARRETT. Second District : JASPER W. GILBERT. CALVIN E. PRATT. ABRAHAM B. TAPPEN. JOSEPH F. BARNARD. Third District : PETER S. DANFORTH. THEODORE MILLER. WILLIAM L. LEARNED. CHARLES R. INGALLS. Fourth District : PLATT POTTER. AMAZIAH B. JAMES. AUGUSTUS BOCKES. JOSEPH POTTER. Fifth District : JOSEPH MULLIN. CHARLES H. DOOLITTLE. LE ROY MORGAN. GEORGE A. HARDIN. Sixth District : DOUGLASS BOARDMAN. WILLIAM MURRAY, JB. JOHN M. PARKER. RANSOM BALCOM. Seventh District : THOMAS A. JOHNSON.* JAMES C. SMITH. DAVID RUMSEY.t CHARLES C. DWIGHT. E. DARWIN SMITH. * Died Dec. 5,1872. f Appointed in place of Thomas A. Johnson, deceased, Dec. 28, 1872. tv JUSTICES OF THE SUPREME COURT. Eighth District : GEORGE BARKER. CHARLES DANIELS. JOHN L. TALCOTT. GEORGE D. LAMONT. JUSTICES OF THE GENERAL TERM. First department, DANIEL P. INGRAHAM, presiding justice; NOAH DAVIS, ENOCH L. FANCHER, associate justices. Second department, JOSEPH F. BARNARD, presiding justice ; JASPER "W. GILBERT, ABRAHAM B. TAPPEN, associate justices. Third department, THEODORE MILLER, presiding justice; PLATT POTTER, JOHN M. PARKER, associate justices. Fourth department, JOSEPH MULLIN, presiding justice } THOMAS A. JOHNSON, E. DARWIN SMITH,* JOHN L. TALCOTI, associate justices. FRANCIS C. BARLOW, Attorney-General. Appointed in place of Thomas A. Johnson, who died Dec. 5, 1873. TABLE OF OASES REPORTED IN THIS VOLUME PAGE. Allen y. Todd 222 Ames, Tyler v 280 Ames v. Duryea 155 Arend v. The Liverpool, New York and Philadelphia Steam- ship Company 457 Assessors of Mechanicville, People ex rel. American Linen Thread Company v.. . . 105 B. Bailey v. Southwick 356 Biker, FUkins v 516 Biker v. Baker 509 Btngs, Stack v 262 Birclay v. The Quicksilver Min- ing Company 25 Beals, Terwilliger v 403 Beals v. Stewart 408 Bonnet, Shirley v 512 Board of Supervisors of Oneida County, Loomis v 269 Board of Supervisors of Rich- mond County v. Wandel 33 Borden, Gillett v 219 Bowery National Bank, Ha- gen v 490 Buck v. The City of Lockport, 251 Burchard, Voorhees v 176 c. 56 Carpentier v. Minturn Champlain Transportation Com- pany, Dougan v 430 FA8& Champlin v. The Railway Pas- senger Assurance Company . 71 Chapin, Hunt v 139 Cheshire, Lament v 234 Chittenden, Kingsland v 15 City of Elmira, The National Bank of Chemung v 116 City of Lockport, Buck v 251 City of Rochester, Fisher v 225 City of Rochester, Hassan v 185 Clarke v. Rannie 210 Clift v. Northrup 330 Collins v. Collins 368 Cooper v. Felter 482 Crawford, Hildebrant v ... 502 Crawford v. Hildebrant 502 Crombie, Terrett v 83 D. Daniell, The People ex rel. Un- derwood v 44 Decker v. Leonard 264 Dorn v. Fox 162 Dougan v. The Champlain Transportation Company 430 Doyle v. Gibbs 180 Dunning v. Ocean National Bank of the City of New York. 29tt Duryea, Ames v 155 E. Easton, Pullar v. 247 Edwards, Wilson v..... .184 VI TABLE OF CASES REPORTED. F. PAGE. Fabbri v. The Mercantile Mutual Insurance Company 446 Fargo, Westcott v 319 Felter, Cooper v 485 Fethers, Mowers v 112 Filkins v. Baker 516 First National Bank of Kings- ton, Van Leuvan v 373 Fisher v. City of Rochester 225 Ford, Nathaniel, Matter of peti- tion of 92 Fox, Dorn v 162 Frost, Stone v 440 G. German United Evangelical St. Stephen's Church, People ex rel. Dilcher v 172 Gibbs.Doylev 180 Giles, Perkins v 437 Gillett v. Borden 219 Gillis, Ryckman v ; 79 Glen and Hall Manufacturing Company v. Hall 158 Gove v. Lawrence 89 Graham v. The People 149 Green, Livingston v 50 H. Hackettstown Bank v. Kea 455 Hackford v. The New York Central Railroad Company. . . 381 Hagen v. Bowery National Bank 490 Haggerty v. The People, No. 1, 332 Haggerty v. The People, No. 2, 347 Hall, Glen and Hall Manufac- turing Company v 158 Hassan v. The City of Roches- ter 185 Herbert v. Smith 493 Hildebrant v. Crawford 502 Hildebrant, Crawford v 502 PAGE. Hill, Shepherd v 387 Hincken v. The Mutual Benefit Life Insurance Company 21 Hinde v. Smith 464 Hubbard, Washburn v 11 Hudson River Railroad Com- pany, Ludlow v 128 Hunt v. Chapin 139 Hunt, Pitts v 146 J. Jones v. Milbank 78 K. Kellum John, Matter of will of. 1 Kingslandv. Chittenden 15 Knapp, Porter v 125 Lament v. Cheshire 2J4 Lawrence, Gove v 69 Lawrence v. Maxwell 469 Lawrence, Palmer v 282 Leitch, Packwood v 303 Leitch, Pardee v 303 Leonard, Decker v 264 Lewis v. Rose 206 Liscomb v. The New Jersey Railroad and Transportation Company 75 Liverpool, New York and Phila- delphia Steamship Company, Arend v 457 Livingston v. Green 50 Loomis v. Board of Supervisors of Oneida County 269 Lorillard Fire Insurance Com- pany, Perry v. 201 Lossee v. Williams 228 Ludlow v. The Hudson River Railroad Company 128 TABLE OF CASES REPORTED. vu M. PAGE. McKinley v. Tucker 214 Matter of the will of John Kel-~ him 1 Matter of the petition of Na- thanielFord 93 Maxwell, Lawrence v 469 Mercantile Mutual Insurance Company, Fabbri v 446 Milbank, Jones v 73 Miller, Moore v 396 Minch, The National Life Insu- rance Company v 100 Minturn, Carpentier v 56 Monroe v. Upton 255 Moore v. Miller 896 Mowers v. Fethers 112 Muller v. Pondir 472 Mutual Benefit Life Insurance Company, Hincken v 21 N. National Bank of Chemung v. CityofElmira 116 National Life Insurance Com- pany v. Minch 100 New Jersey Railroad and Transportation Company, Lis- comb v 75 Newman v. The People 460 New York Central Railroad Co., Hackford v 381 New York Central Railroad Co., Worthington v 257 Northrop, Clift v.. 330 o. Ocean National Bank of the City of New York, Dunning v 296 P. Packwood v. Lcitch Palmer v. Lawrence Pardeev. Leitch. .. 303 282 303 PAGE. Pechner v. Phoenix Insurance Co 411 People ex rel. Am. Linen Thread Co. v. Assessors of Mechanic- ville 105 People ex rel. Dilcher v. St. Stephen's Church 172 People, Graham v 149 People, Haggerty v., No. 1 333 People, Haggerty v., No. 2 347 People, Newman v 460 People, Rosenzweig v 463 People ex rel. Underwood v. Daniell 44 People v. The President, etc. , of New York Gas-light Co., 467 Perkins v. Giles 437 Perry v. Lorillard Fire Insur- ance Co 201 Petition of Nathaniel Ford, In the Matter of 93 Phosnix Insurance Co., Pech- ner v 411 Phoanix Mutual Life Insurance Co., Tifftv 198 Pierce v. Wright 306 Pitts v. Hunt 146 Pondir, Muller v 472 Porter v. Knapp 125 President, etc., of New York Gas-light Co., The People v., 467 Pullar v. Easton 247 Putnam Fire Insurance Co., Whitwellv ^ 166 Q. Quicksilver Mining Co, Bar- clay v 25 R. Railway Passengers' Assurance Co., Champlin v 71 Rannie, Clarke v 210 Rea, Hackettstown Bank v 455 Rogers v. Wheeler 420 VU1 TABLE OF CASES REPORTED. PAGE. Rose, Lewis v 206 Eosenzweig v. The People 462 Ryckmanv. Gillis 79 S. St. Stephen's Church, The Peo- ple ex rel. Dilcher v 172 Scott, Sortore v 271 Shepherd v. Hill 387 Shirley v. Bennett 512 Smith, Herbert v 493 Smith, Hinde v 464 Smith v. Smith 313 Smith, White v 5 Snell, Van Slyck v 299 Sortore v. Scott 271 Southwick, Bailey v 356 Stack V. Bangs 262 Stewart, Beals v 408 Stone v. Frost 440 Supervisors of Oneida County, Loomis v 269 Supervisors of Richmond Coun- ty v. Wandel 33 T. Terrett v. Crombie 82 Terwilliger v. Beals 403 Tifft v. Phosnix Mutual Life Insurance Co 198 Todd, Allen v 222 PAGE. Tucker, McKinley v 214 Tucker v. Woolsey 482 Tyler v. Ames 280 u. Upton, Monroe v 255 V. Van Leuvan v. The First Na- tional Bank of Kingston 373 Van Slyck v. Snell 299 Voorhees v. Burchard 176 w. Wandel, Supervisors of Rich- mond County v 33 Washburnv. Hubbard 11 Westcott v. Fargo 319 Wheeler, Rogers v 420 White v. Smith 5 Whitwell v. The Putnam Fire Insurance Co 166 Williams, Lessee v 228 Will of John Kellum, In the Matter of 1 Wilson v. Edwards 134 Woolsey, Tucker v 482 Worthington v. The New York Central Railroad Co 257 Wright, Pierce v 306 TABLE OF OASES CITED IN THIS VOLUME, A. PAGE. Abbey v. Deyo 394 Abraham v. Plestoro 28, 29 Adams v. Bockingham Mut. Ins. Co 202 Adams V.R.R Co 17 ./Etna Ins. Co. v. Tyler 22 Alexander v. Green 329 Allen v. Crary 180 Allen v. The City of Buffalo.. . . 191 Allen v. Kingsbury 17, 19 Allen v. Merch. Bk 454 Allen v. Miller 225 Allenv.Smith 45 Allicot v. Turner 13 Ames v. N. Y. Union Ins. Co., 167 416 Amoskeag Mf g Co. v. Spear. . 160 Angel v. Pownal 37 Argall v. Bryant 133, 225 Armstrong v. Gilchrist 217 Artcherv. Zeh 13 Arthur v. Brooks 22 B. Bagley v. Smith ,....,... 18 Baileyv. Buel 165 Baldwin v. The City of Oswego, 254 Ballard v. Burchard 401, 402 Ballentine v. McDowell 184 Baker v. Taylor 256 Bk. of Chenango v. Brown. ... 46 LAPSING VOL. VL 2 PAGE. Bk. of Commonwealth v. Mayor of N.Y .. 124 Bk. of Toronto v. Hunter 331 Banow v. Eldridge 429 Barclay v. Quicksilver Mining Co 30 Barhydt v. Shepard.. 110, 124, 193 292 Barker v. The People 46 Barrett v. The Third Ave. B. B. Co 388 Barrett v. The Union M. Ins.Co., 169 Barrick v. Austin 22 Barto v. Himrod. 46 Bates v. Bosekrans 22 Beach v. Bay State Co 22 Beach v. Vandewater 145 Beadle v. The Assessors (supra), 123 Beals v. Guernsey 29 Beard v. The City of Brooklyn, 254 Beekman v. Bonser 298 Beeler v. Turnpike 29 Benjamin v. Saratoga Mut. Ins. Co 418 Bennett v. Benjamin 76 Beclar v. Turnpike Co 28 Benedict v. Ocean Ins. Co. .... 163 Bell v. Cunningham 8 Bempde v. Johnson 157 Bennett v. Ditson. . . . ., 115 Bennett v. Judson 198, 268 Berkshire Woolen Co. v. Proc- ter 115 Berridge v. Ward 17 Bevan v. Turnpike 29 TABLE OF CASES CITED. Bigelow v. Stearns 285 Bird et al. v. Carital 29 Bird v. Pierrepont 29 Bissell v. N. Y. C. R E. Co., 20, 327 Blakev. Cole 13 Blake v. The Exch. M. Ins. Co., 170 Blair v. Claxton 331 Blaisdell v. Briggs 37 Blanchard v. Ely 13 Blanchard v. Weeks 420 Bland v. The State 838, 345 Bliven v. K E. Screw Co 454 Bloodgood v. M. and H. R. R. Co 46 Blossom v. Dodd 327, 328 Blossom v. Griffith 429 Blotv. Boiceau 466, 468 Boehen v. Williamsburgh Ins. Co 168,416 Bogert v. Bogert 600 Bonito v. Mosquera 479 Booth v. Bunce 29 Booth v. Clarke 28 Bortlyv. Faulkner 224 Bourne v. Gatliff. *.... 454 Bouton v. City of Brooklyn.. . . 193 Bo wen v. Washington Co 37 Bowers v. Smith 363 Boyce v. Brockway 180, 181 Boyd v. McLean 371 Bradley v. Mutual Benefit Life Ins. Co 30 Bradley v. Nelson 16, 17 Bradley v. Rice 16, 17, 20 Brady v. The Sup'rs of N. Y., 253 Breasted v. Farmers' L. & T. Co., 72 Brewster v. Lilew 234 Bridgman v. Jennings 20 Brittam v. Kinnard . . 295 Britton v. Lawrence 37, 44 Broadwell v. Getman. 12 Brookman v. Hamill 434 Brownell v. Winnie 302 Brown v. Cattaraugus County Mutual Ins. Co 418 Brown v. Chantry 207 Brown v. Smith 290* Binssev. Wood 207 Buckle v. Eckhert 142 PAGE Bucklin v. Ford 297 Bulger v. Roche 69 Burgess v. Simonson 388 Burns v. Bryant 180 Burns v. Erben f .. 207 Burrittv. Silliman 298 Bushel v. Miller . 180 C. Cabot v. Britt 37 Caled R. Co. v. Sprot 83 Campbell v.Charter Oak Ins. Co. , 22 Campbell v. Ewart 207 Cameron v. Wentz 29 Case v. Carroll 86 Campbell v. Hall 74 Campbell v. Logan 2 Campbell v. Perkins 301, 302 Camput v. Fulton 207 Cardell v. McNeil 234 Carpenter v. The Providence Ins. Co 168 Carroll v. Charter Oak Ins. Co., 416 417 Castle v. Duryea 207 Cayle v. Case 115 Chadwick v. Lamb 281 Chalmer v. Bradley 87 Chamberlain v. Thompson .... 243 Chambers v. Lewis 331 Chase, Administrator, v. The American Steamboat Co 434 Chegary v. Jenkins 124 Chemung Bank v. Supervisors of Chemung Co 37, 41 Chester v. Bank of Kingston. . . 371 Child v. Brace 28 Child v. Starr 16, 20 Child v. Sun Mutual Ins. Co. . . 22 Christmas v. Russell 69 Chubbuck v. Vernam 325 City of Peoria v. Kidder 97 Claremont v. Carleton 17 Clarke v. Dutcher 69 Clarke v. Meigs 8 Clark v. Metropolitan Bk 505 Clark v. Miller 46 TABLE OF CASES CITED. XI PAGE. Clark v. Rowling 256 Clark v. Thompson 13 Clark v. Wethey 17 Cleek v. The Commonwealth, 342 345 Coates v. Holbrook 160 Cobb v. Dows 180, 181 Cochran v. Dinsmore 826 Collier v. Idlay's Ex'ra 2 Colvin v. Burnett 22 Com'l Bk. v. First Nat. Bk 492 Commonwealth v. Brice 87 Committ v. Beaqua 87 Comstock v. Van Deusen. . 16, 17 Conklin v. Edgerton. 299 Connah v. Hale 180 Conroy, Adm'r, v. Gale 263 Cook v. Comley 17 Cooper v. "Whitney 88 Copeland v. Stevens 202 Cornell v. Dakin 256 Corning v. Southland 216, 218 Corning v. White 28 Costigan v. Mohawk and H. R. R 18 Cowen v. Doly 160 Cox v. Fredley 17 Craigv. Wells 81 Culler v. Wright 456 Camming v. The Mayor, &c. , of Brooklyn. 254 Cummings v. Morris 831 Curry v. Pringle 207 Cromwell v. Stevens. 115 Crowley v. Panama R. R. Co. . 28 Cruger v. Hud. R. R. R Co. . . 22 Curtis v. Brooks 69 Cutler v. Wright. 30 Dausey v. Rich 115 Darlington v. The Mayor 97 Davenport v. Ruckman 78 Davison v. Stanley 145 Davis v. Blunt 242 Davis v. Duffle . . .349 PAGE. Davis \ . Gaw 297 Davis v. Shields 8 Delamater v. The People 461 Den v. Wright. .; 17 Demeyer v. Legg 17 Depeyster v. Clendenning 298 Devendorf v. Beardsley 198 De Tassett v. Cronsselatt 8 DeWittv. Burnet 28 De Witt v. Walton 506 Dickinson v. Valpy 143 Dixon, Ex'r, v. Ramsay, Ex'r. . 28 Pobson v. Collis 13 Dodd v. City of Hartford 193 Doe dem. Hughes v. Lakin .... 20 Doe v. Derry., 183 Dolan'sCase 844, 355 Dominick v. Michael 299 Doolittle v. Lewis 28 Dorr v. N. J. Steam Nav. Co. . . 329 Dorwin v. Strickland 294 Douglass v. Forrest 297, 299 Duffy v. The People 46 Dunham v. Williams 17 Dunlevy v. Tallmadge 28 Dunning v. Roberts 505 Draper v. Snow 234 Dresser v. Brooks 256 Dresser v. Dresser 13 Dwight v. Clarke 69 E. East India Co. v McDonald. ... 223 Elwell v. Chamberlain . . . 198, 233 Elyv. Ehle 180 Evens v. Llewellen 222 Evans v. Root 8 Exchange Bank v. Monteath. . . 144 Ex parte Brunding 351, 853 Ex parte Clifford 340, 345 Ex parte Jennings 17 Ex parte Meyers 350, 851, 353 Ex parte Milligan 49 Ex parte Turner 851 Ex parte Wilson 87 Xll TABLE OF CASES CITED. F. PAGE. Farmers' and Mechanics' Bk. v. Butchers' and Drovers' Bk. . . 492 Farnsworth v. Child 243 Farrand v. Marshall 82, 131 Farrel v. Calkins 300, 302 Farrel v. Hildredth 281 Feise v. Wray 477 Fenner v. Buffalo and State Line R. R. Co 429 Ferguson v. Hamilton 232 Ferris v. The People 339 Ferris v. Union Ferry Co 78 Field v. Mould 300 Finn v. Harrison 233 First National Bank of Cortland v. Green 127 Fisk v. The Chicago R, etc.,E. R. Co 28 Fleetwood v. City of New York, 69 Fletcher v. Phelps 17 Footv. Stevens 29 Foster v. Van Wyck 193 Foulder v. Willoughby . . . 180, 185 Fountain v. Pettee 419 Foy v. Harding 13 Fralt v. Woodward 17 French v. Buffalo N. S. and Erie R. R. Co.. 327 French v. Carhart 19 Frost v. Saratoga Mut. Ins. Co. . . 416 Fulton Fire Ins. Co. v. Baldwin, 263 G. Gage v. Angell 331 Gage v. Currier 288 Ganson v. The City of Buffalo, 254 Gardner v. The Mayor 69 Garvey v. Jarvis 162 Gates v. Madison Ins. Co 72 Genesee Valley Nat. Bank v. Supervisors of Livingston Co., 124 Gerard v. Stagg 300 Gilbert v. Sharp 480 Gilbert v. The Phoenix Ins. Co., 168 Gildersleve v. The People 46 Gould v. Chapin 429 Gould v. Mortimer 304 Grant v. Morse 325 Gray v. Goodman 331 Greenleaf v. Kitton 16 Green v. Rumsey 207 Greenwood v. Brodhead 28 Griffin v. Marquard 388 Grosvenor v. The Atlantic Fire Ins. Co 202 Grunslade v. Down 143 Guest v. Forehand 28 Guildaume v. Hamburg and Am. Packet Co 329 H. Hallemere v. Albro 178 Hallock v. Woolsey 87 Halloway v. Hampton 12 Hall v. Austin 277 Hall v. Sampson 281 Hall v. Earnest 519 Hall v. The Mechanics' M. Fire Ins. Co 169 Hammond v. McLachlan 17 Hammond v. Tillotson 366 Hanley v. Wood 22 Hanlon v. Supervisors, &c 97 Harmon v. Bird 69 Harris v. Porter 18 Harris v. Pratt 476 Harris v. Roberts 82 Harris v. Ryding 82 Hasbrouck v. Kingston Board of Health 198 Hatcher v. Rochleaw 29 Hatch v. Carpenter. 16 Hathorn v. Stinson 16 Haynor v. James 46 Hay wood v. Miller 180, 183 Heald v. Carey 180 Healy v. Bainbridge 143 Hedges v. Seeley 480 Henderson v. Brown 292 Herring v. Fisher 17, 20 Hern v. Nichols 492 Hey wood v. The City of Buffalo, 362 Hillv. Selick ,. 292. TABLE OF CASES CITED. xm PAGE. Hitchcock v. N. W. Ins. Co.. . 202 Holbrook v. Vose 479 Holdenv. Putnam Fire Ins. Co., 416 Holland v. Prior 277 Holmes v. Broughton 28 Homer v. Wood 69 Hooker v. Tuckerman 29 Hooper v. Wells, Fargo & Co., 329 Hope Ins. Co. v. Taylor 28 Hopkins v. Grove. ... 207 Houston v. Moore 48 Howard v. Bergen 13 Howland v. Eldrege 312 Howtayne v. Browne 145 Hoyt v. Martinse 86 Hoyt v. Thompson 28, 29, 32 Huggans v. Fryer 281 Hulet v. Swift 114 Hunt v. Johnson 29 Hutchinson v. Stall 37 Huy v. Brown 439 Hyatt v. Waite 168 I. Ingalls v. Bosworth 288 In re Empire City Bank 46 In re Smith 46 Irving v. Excelsior Ins. Co 22 Ireland v. The City of Rochester, 193 J. Jackson v. Leggett 22 Jackson v. Louw 17 Jackson v. Parkhurst 184 Jackson v. Tile 16 Jackson v. Wood 46 Jefferson County v. Jones 37 Jewell v. Wright 455 Johnson v. Hunt 28 Jones v. Holstein 17 K. Kasson v. Mills 300 Keen v. The Queen 339 Kent v. Kent . , 13 PAGE. Kernochan v. Bowery Ins. Co., 23 Kimball v. The Howard Fire Ins. Co 169 King v. Bath 350 King v. Donnelly 298 King v. Ives 115 Kingv. King ..16, 17 King v. Oakey. . 337, 338, 346, 355 King v. Richardson 174 King v. Talbot 277 Knotchbull v. Fearnhead 276 Kraft v.Vickey 28 Kundolfv. Thalbeiner.. , 30 L. Ladue v. Griffith 429 Lambert v. The People , . 207 Lamb v. Camden and Amboy R.R. Co 422 Lamb v. Grover 142 Lampman v. Milks 132 Lamott v. The Hud. Riv. Ins. Co 168 Lansing r. Case 207 Lansing v. Van Alstyne 22 Lappin v. The Charter Oak Ins. Co 202 Large v. Bristol Trans. Co 29 Lasala v. Holbrook 131 Latourette v. Clark 76 Lawrence v. Delano 178 Lawrence v. Ocean Ins. Co 23 Lawrence v. Simmons. 69 Lee v. Tillotson 46 Leflerv. Field 505 Leftwich v. The Commonwealth, 344 345 Leggett v. Hunter 46 Le Guen v. Gouveneur 8 Leonard v. Putney 225 Leroy v. Platt 178 Lewis v. Jones 37 Liddle v. The Market Ins. Co. . 167 Lietch v. Wells 274 Lightbody v. North Am. Ins. Co. 416 Lincoln v. Battelle 69 Livingston v. Hollenback 193 xiv TABLE OF CASES CITED. PAGE. Livingston v. The Mayor 46 Lobdell v. Lobdell 507 Lombard Bank v. Thorp 28 Looney v. Hughes 37, 41 Lounsbury y. Purdy 371 Louisville & Charleston R. R. Co. v. Selson 28 Lord v. Com. of Sidney 17 Lovell v. Robinson 16 Lowenbey v. The People. . 153, 339 Louber v. Selden 69 Lowell v. Robinson 17 Luce v. Carley 17 Luke v. City 46 Lyon v. Kingdon 276, 339 M. McCarthy v. City of Syracuse. . 264 McCartney v. Bostwick 29 McClure v. Board of Supervisors of Niagara county 253 McCosker v. Brady 298 McCullock v. The Mayor, etc., of Brooklyn 254, 255 McCulloch v. Vail 17 McCulloch v. Wall 17 McElmoyle v. Cohen 29 McGee v. Gibson 184 McKinley v. Dada et al 214 McLees v. Hale 13 McNeil v. The Tenth National Bank 400, 402 Maghee v. Camden and Amboy RR. Co 422 Mallory v. Tioga R. R. Co 115 Mandeville v. Guernsey 444 Manning v. Wells 115 Mann v. Fairchild 362 March v. The People 207 Marsh v. Burt 17 Marsh v. Hutchinson 157 Martin v.Mott.. 48 Martin v. Supervisors of Greene county 258 Mason v. Jones 2 Masterson v. The Mayor, etc., of Brooklyn 18 PASS. Maston v. Porter 127 Mathews v. Howard Ins. Co 72 Matter of Albany street 46 Matter of George W. Robinson, 298 Matter of the Mayor of New York, etc., for improving Nassau street 96 Matter of John and Cherry Streets 46 Matter of the petition of Michael Tracey 99 Matter of Townsend 46 Meeker v. Van Rensselaer. . 37, 44 Mepeck v. Supervisors of Co- lumbia 193 Mercantile Mutual Ins. Co. v. Calebs 327 Merrick v. Van Santvoord 28 Merritt v. Millard 69 Merwin v. Playf ord 142 Meyer v. Harnden's Express Co., 327 Middleton v. Merchants' Bank, 28 Milbank v. Dennistoun 8 Miller v. Brinkerhoff 285 Miller v. Steam Navigation Co., 429 Miller v. Talcot 148 Milton v. Hudson R. Steam- boat Co 8 Miner v. McLean 37 Minturn v. La Rue 69 Mohawk and Hudson R. R. Co. v. Clute 164 Monell v. Dickey 28 Monroe v. Douglass 28 Monroe v. Potter 148 Moore v. Evans 327 Moore v. Fox 18 Moore v. Little 55 Moorv. Newfield 87 Morgan v. King 17 Morris v. Sammond 8 Morris v. The People 41 Morse v. James 286 Mostyn v. Fabrigas 76 Mosher v. Hotchkiss 234 Mosselman v. Cain 28 Mowatt v. Wright 69 Mowry v. Walsh 402 Mudgett v. Bay State 115 TABLE OF CASES CITED. PAOE. Munech v. Cocknell 275, 276 Murphy v. The People 46 Murray v. East Ind. Co. . . 297, 299 Mygatt v. Washburn 165, 292 Neustadt v. Joel 28 Newman v. Jeune 180 N. H. and N. Co. v. Quintard. . 510 Nichols v. Primer. 180 Nixon v. Hyserolt 198 Norcross v. Norcross 115 North River Bank v. Aymar. . . 144 N. S. Rail Co. v. Crosland 82 Nutting v. Herbert 16, 17 N. Y. and Harlem R. R. v. Marsh 69 o. Oakley v. Stanley 178 O'Brien v. Hagan 348 O'Neil v. The Buffalo Ins. Co., 23 Onderdonkv. Mott... 362, 363, 366 Ontario Bank v. Mumford 202 Owen v. The Farmers' Joint- stock Ins. Co... 168 Owneys v. Speed 37 P. Palmer v. Hutchins 256 Parish v. Golden 121 Parker v. Flint 115 Parker v. Phoenix Ins. Co 22 Parkhurst v. Foster 115 Parks v. Purdy 180 Parsons v. Lyman 28, 29 Parsons v. Monteath 327 Passinger v. Thorburn 13 Pearsall v. Dwight 28 Peaslee v. Gee 16, 17 Peck v. Knox 180 Pendlon v. The Am. Mut. Ins. Co... . 170 FAQX. People v. Aimes 180 People v. Assessors of Albany, 193 People v. Assessors of Brooklyn, 193 People v. Assessors of Brooklyn, 105 108 People v. Chase 207 People ex rel. Beadle et al. v. Assessors of Elmira 123 People ex rel. Crane v. Ryder, 30 People ex rel. The Nicolson Pavement Co. v.May or.. 97, 98 People v. Ferguson 109 People v. Fredericks 110 People v. Gardinier 37 People v. Gates 511 People v. Gonzales 21 People v. Gonzales 454 People v. Halsey 110 People v. Howes 46 People v. Jansen 36 People v. Lawrence 41 People v. The Mayor 32 People v. Merrill 151 People v. Molineux 3, 50 People v. Naughton 339 People v. Navins 204 People v. Phillips 153 People v. Quimbo Appo 339 People v. Reddy 109, 292 People v. Ryder 32 People v. The Supervisors of Chenango 97, 292 People v. Supervisors of Dela- ware County 253, 255 People v. Supervisors of New York 253 People v. Supervisors of Ulster, 123 People v. Weed 152 People v. Zeyst 311 Perrin v. Dows 479 Peter v. Compton 13 Peterson v. Ayers 8 Peterson v. Chemical Bk . 28, 29, 32 Peters v. Westboro 13 Phoenix Bk. v. Donnell 3 Phillips v. Graham 331 Phinney v. Phinney 28 Pickering v. Bush : 402 Piggott v. Bush 297 XVI TABLE OF CASES CITED. PAGE. Pinkerton v. Woodward 115 Place v. The Union Express Co. , 329 Plato v. The People 46 Platt v. Crawford 28 Platt v. Stout 30 Plimpton v. Curtiss 13 Post v. ^Etna Ins. Co 416 Postv. Post 180 Powell v. Jessup 8 Power v. Hathaway 69 Pratt v. Samson 17 Prescott v. Heard 243 Prescott v. White 410 Prest., &c., of Westfield Bk. v. Cowen 144 Price v. Neul 492 Priest v. Rice 242 Prindle v. Caruthers. ., , 30 Q. Quin v. Lloyd 519 E. Railroad Co. v. Wallace 29 Uaphael v. Bk. of England 493 Rathbun v. Sawyer 46 Reedv..Fitch 371 Reed v. Randall 69 Reed v. Randall 443 Regma v. Charlton 339 Regma v. Eastonhouse 157 Rex v. Ratcliffe 239 Rex v. Sheriff of Surrey 36 Richards v. Richards 297 Richv. Milk 281 Rider v. Powell 325 Riley v. Griffin 17 Robbins v. Wells 28 Roberts v. Rockbottom 13 Robinson v. Chamberlain 263 Robinson v. N. Y. and Erie R. R. Co 131 Rockwell v. Nearing 46 Rogers v. McLean 28 Rood v. N. Y. and E. R.R. Co., 132 PAGE. Roonee v. Phillips 299 Root v. French 402 Rudle v. Moore 8 Ruggles v. Keeler 69 Ruloff v. The People 347 Runk v. St. John 28, 29, 32 Russel v. Commonwealth 350 Russell v. Maloney 17 Russell v. Scudder 480 s. Safford v. The People 153 Salters v. Everett 402 Sanford v. Handy 198, 233 Sarsfield et al. v. Healy 180 Schennerhorn v. Burgess 510 Schenectady and S. Plk. R. Co. v.Thatcher 22 Schooner Lively v. Gamion 13 Scott v. Rogers 8 Scott v. Seymour 76 Seneca Indians v. Knight. ... 17 Sere v. Coit . ... 30 Seymour v. Cook 115 Seymour v. Sturges ..... 29, 82 Shannon v. Comstock. 13 Sharp v. Spier . 94, 96 Shaw v. Holland > 8 Sheldon v. The Atlantic Fire and Marine Ins. Co 168 Sheldon v. Hopkins 28 Sherman v. Barnard 69 Sherman v. Niagara Fire Ins. Co. 417 Shute v. Dorr 815 Sicardv. Whale 28 Siddle v. Market Fire Ins. Co., 416 Siffkenv. Wray 476 Silliman v. Wing 69 Simmons v. Sisson 506 Simpson v. Dendy 17 Sir Charles Ratcliffe's Case .... 356 Sizer v. Devening 17 Skinner v. Kelly 285 Smith v. Bull 76 Smith v. Helmer 37, 44 Smith v. Spinola 28 Smith v. Tracy 233 TABLE OF CASES CITED. xvii PACK. Southal v. Tompkins 29 Bpalding v. Spalding 180 Spooner v. Brooklyn City R. R. Co 436 Stanley v. Green 17 Staples v. Fairchild 285 Starin v. The Town of Genoa. . 311 State v. Connell 352 State v. Wamire 342, 345 Stedman v. Western Transporta- tion Co 329 Stephenson v. New York and HarlemR.R 198 Stevens v. Phcenix Ins. Co .... 28 Stewart v. McReady 115 Stockwell v. Phelps 180 Stokes v. Landegroff 160 Story v. The New York and Harlem R. R. Co 300 Strong v. Manf . Ins. Co 202 Sumner v. First Parish in Dor- chester 288 Supervisors of Chenango v. Birdsall 37, 40, 41 Supervisors of Livingston v. White 37 Supervisors of Onondaga v. Briggs 37, 69 Susquehanna Bk. v. The Super- visorsof Broome 193 Suydam v. Allen 8 Suydam v. Keyes 286 Suydam v. Morris Canal Co 455 Swift v. The City of Pough- keepsie 124, 193 Swinburne v. Swinburne . . . 371 T. Taber v. Bradley 178 Tawcett v. Charles 175 Taylor v. Bradley 13 Taylor v. Henry 37, 44 Taylor v. Porter et al 46 Thayer v. Bacon 17 Thomas v. The Merchants' Bk., 29 Thompson v. Ebbitts 164 Thompson v. Lacy 115 LANSING VOL. VI. 3 PAGE. Thorogood v. Robinson 180 Throop v. Hatch 28 Thurman v. Wells 198 Toulandon v. Lachenmeyer 69 Towson v. Tickall 298 Trigge v. Lavallee 69 Throop v. Smith 225 Trustees v. Dickinson 17 Tucker v. Tucker 487 Turnpike Co. v. Peddle 29 Turnpike Co. v McAnulty 29 Turnpike Co. v. Wallace 29 V. Vail v. Owen 291 Valten v. The Nat. Fund Life Ins. Co 198 Vanderpoel v. Van Valken- burgh 2 Van Diemen's Land Co. v. Cock- rell 8 Van Rensselaer v. Cottrell 291 Van Rensselaer v. Kidd 193 Van Rensselaer v. Whitbeck. . 121 291 Van Santvoord v. St. John 454 Van Valkenburgh v. Thyayer. . 180 Vaughan v. O'Brien 510 Wareham v. Mohawk Ins. Co., 297 Von Latham v. Libby 207 Voorhis v. Childs 276 Vos v. Robinson , 23 w. Walker v. Maxwell 28 Walling v. Potter 115 Wall v. Buffalo Water-works. . 24 Walter v. Lockwood 30 Washburn v. Jones 112, 116 Waugh v. Waugh 17 Weaver v. Devendorf 291 Wells v. Buffalo Water-works, 22 Wells v. Jackson Iron Co 16 Wells v. Steam Navigation Co., 328 329 Wenman v. Mohawk Ins. Co. . . 299 XV111 TABLE OF CASES CITED. PAGE. Wesley Church v. Moore 29 Westervelt v. Craig 46 West v. Am. Ex. Bank 22 Wheeler v. McFarland 180 Whitbeck v. Schuyler 505 White v. Platt 480 Wheeler v. Newbould 480 Whitney v. Lewis 69 Wierv. Hill 12 AViles v. Winsterley 82 Willets v. Vandenburgh 29 WHlots v. Waite 29, 32 Willetts v. White 28 Williams v. Reynolds 8 Williams v. Storrs 28 Willis v. The People 154 Wilson v. Genesee M. Ins. Co. . 168 Wilson v. Hill ; 202 Wilson v. Little . . .480 PAO. Wilson v. Robinson 207 Winchell v. Hicks 148 Winslow v. Buet 69 Wintermute v. Clarke 115 Wise v. Withers 288 Witbeck v. Holland 429 Wood v. City of Brooklyn 46 Wood v. Whitney 22 Wooster v. The Hartford Fire Ins. Co 169 Worth v. Edmonds 8 Wright v. Delafleld 162 Wyman v. Farnsworth 69 Wynehamer v. People 46 Y. v. Catlett. CASES ADJUDGED IN THE STJPEEME OOTJKT OF THE STATE OF NEW YORK. IN THE MATTER OF THE WILL OF JOHN KELLUM, deceased. e i 50a 298 (GENERAL TERM, SECOND DEPARTMENT, SEPTEMBER, 1872.) The provisions of the Revised Statutes ( 80, 2 R. S., 61), under which the next of kin may contest the probate of wills of personal property, are inapplicable to wills which dispose of both real and personal property; they relate to wills, exclusively, of personal estate. ^HIS was an appeal from an order of the surrogate of Queens county, dismissing proceedings upon the return of a citation issued in due form of 'law under 2 R. S., 61, 32, on allegations against the validity of the will of John Kellum, deceased, and the competency of the proof thereof. The will had been established as a will of real and per- sonal estate, and consisted of a single provision in favor of the widow of the deceased, as follows, viz. : " I give, devise and bequeath unto my beloved wife, Han- nah Kellum, and to her heirs and assigns forever, all my property and estate of every nature and description whatso- ever, and constitute and appoint her executrix of this my will, revoking hereby all other and former wills by me made." Upon return of the citation, objection was made to the juris- LANSING VOL. VI. 1 CASES IN THE SUPREME COURT [Sept., Matter of the will of John Kellum. diction and authority of the surrogate to revoke the probate of the instrument under the statute, inasmuch as the paper propounded and established contained provisions for the dis- posal of both real and personal estate. The objection was sustained, and the surrogate dismissed the proceedings. Philip S. Crooke, for the appellant. The probate was effective as that of a will of personal property. (Laws 1837", chap. 460, 18, 19 ; Vanderpoel v. Van Valkeriburgh, 6 N. Y., 190 ; Burrill's Law Diet., "Will ; Campbell v. Logan, 2 Bradf., 90; Willard on Ex'rs, 03; Collier v. Idlers Ex'rs, 1 Bradf., 94^98; Mason v. Jones, 2 id., 181, 325.) The object of the statute was to allow contest of a will after probate on allegations before the surrogate in regard to the personal, and in a trial at law in regard to the real estate. JR. Ingraham, for the respondent. . / Present BARNARD, P. J., GILBERT and TAPPEN, JJ. By the Court GILBERT J. The decision of this case depends upon the proper construction of 30, art. 2, title 1, chap. 6, part 2, of the Kevised Statutes. (2 R. S., 61.) By that section it is provided that " notwithstanding a will of personal property may have been admitted to probate, any of the next of kin to the testator may at any time within one year con- test the same or the validity of such will." It is contended by the appellant that inasmuch as the will of the testator embraced personal as well as real property, it is a will of personal property within the meaning of this statute. "We are of a contrary opinion. Title 1, of chap. 6, in which the provision in controversy is contained, has this heading or inscription : " Of wills and testaments of real and personal property, and the proof of them." This title is divided into three articles, the headings or inscriptions to which are as follows, viz. : "Article 1. Of wills of real pro- perty and the proof of them. Article 2. Of wills of per- 1872.] OF THE STATE OF NEW YORK. 3 Matter of the will of John Kelhim. eonal property and the probate of them. Article 3. General provisions applicable to wills of real and personal property." These headings or inscriptions are not titles of the acts in the sense which brings them within the rule that the title of an act cannot control the words contained in the body of the statute, but are rather parts of the statute itself limiting and defining its effect. (People v. Molineux, 53 Barb., 9 ; S. C., 40 N. Y. R., 113.) Under this rule of construction, wills of real property are expressly excluded from the opera- tion of the second article of the statute under consideration. The heading to that article is equivalent to an explicit declara- tion that the provisions thereof shall be applicable to wills of personal property only, and shall not embrace wills whereby real property is devised. Such, evidently, was the intention of the legislature, as is shown by the different provisions relating to the proof of wills' of real and wills of personal property, the legal effects of the probate of each, and especially by the omission of a provision requiring notice to the heirs or devisees of the proceeding to contest the will, after the probate thereof. It is unnecessary to refer to those provisions particularly, but it will be sufficient to say that on the probate of a will of per- sonal property, the next of kin only were required to be cited to attend the probate, whereas, in the case of a will of real estate, notice of the application for the proof thereof was required to be served upon the heirs of the testator. The notice to the next of kin was to be by the personal service of a citation six days before the day appointed, if within the county, and if not within the county, by a publication of the citation two weeks, in a newspaper designated by the surro- gate. The notice to the heirs was to be personally served upon those residing in the county fifteen days ; upon those residing in the State, but not in the county, twenty days pre- vious to the application ; and upon such heirs as could not be found in the State or did not reside therein, twenty days previous to the application, or by publishing it six weeks in the State paper. A will of personal property was admissible CASES IN THE SUPREME COURT [Sept., Matter of the will of John Kellum. to probate on the testimony of a single witness, whereas, on the proof of a will of real estate, all the witnesses to the will were required to be produced and examined, if alive and within the State. The probate of a will of personal property was made conclusive evidence of the validity of the will, while in the case of a will of real estate the probate was not conclusive, but the validity of the will was subject to con- struction afterward, in an action at law. It was the conclusive effect of the probate of the will of personal property that induced the enactment of the section of the statute under consideration, for the purpose of afford- ing to the next of kin, who had not been notified of the probate, an opportunity to contest the validity of the will and to have the probate thereof revoked. (See revisers' notes , 5 Edm. Stat, 626.) The proceeding which the statute pro- vides for this purpose is inapplicable to a will of real and personal property, for there is no provision for any notice of it to heirs or devisees. It would be monstrous to give a con- struction to the statute whereby the interests of such persons could be cut off summarily, without any notice to them of such proceeding. One observation more. The necessity supposed to exist at the time of the passage of the enactment in question, seems to have been superseded by subsequent alterations made by the legislature of the law relating to the proof and recording of wills. The law, as it now stands, prescribes the same mode of proceeding and proof in respect to wills of per- sonal as to wills of real property, and provides also for the recording of wills of personal property. (Laws 183Y, 524, et seq., 5-18.) This statute also provides that whenever any will shall be recorded as a will of real estate, it shall not be necessary to record the same as a will of personal property. (Id., 19.) By chapter 182 of the Laws of 1846, amended by chapter 748 of the Laws of 1869, any will of real estate proved before the surrogate may be recorded in the clerk's office as a conveyance, and this record is made evidence of the will. 1872.] OF THE STATE OF NEW YORK. White . Smith. The consequence of holding the section of the Revised Statutes to be applicable to wills of real and personal pro- perty would be to impair, if not to destroy, the efficacy of these records. For the surrogate is required, in case he decides, upon the hearing of the proceeding mentioned in that section, against the validity of the will, or that it has not been sufficiently proved to have been the last will and testa- ment of the testator, to annul and revoke the probate thereof. (2 R. S., 62, 35.) This course of legislation is indicative of the legislative intent, and tends to strengthen our conviction that the construction put on the statute in question by the surrogate was correct. The decree appealed from is, therefore, affirmed, with costs. EDWABD M. WHITE, Respondent, v. SPENCKB H. SMITH et al., Appellants. (GENERAL TERM, SECOND DEPARTMENT, FEBRUARY, 1871.) Stock-brokers may not revoke their general agreement to buy, hold and sell stocks for a commission and interest on advances, without notice. And they are liable for damages sustained by their employer by reason of a renunciation of the agreement Where a broker, hi advance of orders, purchases and delivers stock in ful- fillment of his principal's agreement to sell, and refuses to purchase and deliver subsequently when directed, his principal's failure to attempt a purchase of the stock through others is no answer to his claim for damages. And the principal may rely, it seems, hi such case, implicitly upon the fidelity of the broker. The damages recoverable are the difference between the price paid upon the unauthorized purchase and market value of the stock at the time of refusal THIS was an appeal by the defendant from a judgment in his favor upon trial by jury. The action was brought to recover damages for alleged breach of contract. 6 CASES IN THE SUPREME COURT [Feb. r White v. Smith. It appeared that the defendants, who were stock-brokers in New York city, in August, 1869, made a contract with the plaintiff, who was a resident of St. Louis, Mo., by which they agreed to make purchases and sales of stock and hold and carry the same subject to the plaintiff's orders, upon the customary "margin," or deposit of per centage as security. The defendants were to be paid the usual commission, and also interest on any excess over the "margin" in the amounts advanced by them. The plaintiff deputized one Treadway of New York to act for him in respect to his stock operations with the defendants under the agreement, and notified the defendants thereof; and between the date of the contract and October 18, 1869, numerous transactions were had between the plaintiff and defendants, through the agency of Treadway ; that, on the 14th of October, 1869, the plaintiff wrote to Treadway from St. Louis, revoking his authority, and requested him to inform the defendants thereof, and that he would thereafter commu- nicate with them directly. On the 16th October, he also tele- graphed to Treadway to " sell 300 shares of New York Cen- tral Railroad stock at $181 per share or over." The telegram and letter were received at about the same time on the 18th October, and Treadway went to the defendants' place of busi- ness and informed one of them, (the defendant Bowen), who was present, of the revocation, and gave them at the same time the plaintiff's order for the sale of New York Central stock, which defendants filled the same day. Bowen informed Treadway that the revocation of authority and arrangement by which plaintiff was to communicate directly with defendants, was satisfactory, and Treadway there- upon telegraphed the plaintiff to that effect ; but afterward, during the same day, the defendant Smith sent for Treadway, and objected to his withdrawing from the agency, and subse- quently frequently complained to Treadway of the insuffi- ciency of the plaintiff's margin. Finally, on the first Novem- ber, he requested Treadway to give him directions for pur- chase of 300 shares of Central stock, for the purpose of cov- ering the sale of the same amount theretofore made on the 1871.] OF THE STATE OF NEW YORK. White v. Smith. 18th October. Tread way insisted that he had no authority in the matter, but finally, on being urged, directed the purchase. The stock was then rising in the market, and the purchase was made at prices somewhat in advance of the price at which the plaintiff had sold or agreed to sell. It appeared also that a margin of some $3,000 of the plaintiff's money was then in defendants' hands. On the 2d November, Central stock declined in price and fell considerably below the price at which the contract for sale had been made on behalf of the plaintiff. On that day the plain- tiff communicated directly to the defendants, by telegraph, his directions for purchase of stock to cover his previous sale. The defendants moved for dismissal of the complaint, but the court held that, for the purposes of the case, the broker is bound to obey the order of his principal, and for disobedience is liable to pay the amount of profits he would otherwise have made. The court also refused to charge that the defend- ants were only liable for nominal damages. It was contended by the defendants that the original agreement with the plain- tiff was conditional upon the continuance of the agency of Treadway to act on his behalf, and there was evidence tend- ing to show this fact. The court charged the jury that it was for them to deter- mine whether the agency of Treadway was to have been irre- vocable ; whether, for deficiency of margin, the defendants had authority to protect themselves by buying in or selling with- out notice to the plaintiff, and whether the defendants con- sented to the revocation of Treadway's authority ; and that, if they should find with the plaintiff on these points, the defend- ants were obliged to obey his telegram of November 2d, and for omission to do so were liable in damages for the profit to the plaintiff at the price of that day as compared with the price at which the stock had been sold short. Exceptions were duly taken to the charge and the several portions thereof, and to the measure of damages established. The jury rendered a verdict for plaintiff for $1,718.00, and 8 CASES IN THE SUPREME COURT [Feb., White v. Smith. the plaintiff brought this appeal upon a case made and excep- tions taken. John E. Parsons, for the appellant, cited Worth v. Edmonds (52 Barb., 40) ; Milton v. Hudson R. Steamboat Co. (37 N. Y., 210) ; Davis v. Shields (24 Wend., 322) ; Peterson v. Ayers (13 C. B., 353) ; Williams v. Reynolds (11 Jen., N. S., 793); Powell v. Jessup, 18 C. B., 336 ; Shaw v. Holland (15 M. & W., 136) ; Fi v. Wright (1 Pet. C. C. Rep., 71) ; J0n'd v. Ow. of Sidney (12 Moore P. C. Gas., 473) ; Cox v. Fredley (33 Penn. St. R., 124) ; Demeyer v. Z1), by ignoring or disregarding the rights of the county in respect to the sum he had received for such interest, was without any authority conferred upon them by statute, and constituted no rclinquishment or release of the claims for them by a subsequent board ; and although the county treasurer, at his several subsequent annual accountings, in 1832 and 1803, exhUutcd to the board his bank book, showing the receipt by him of interest on the moneys of the county in those years, they failed to take any notice of (hem, or to require that he should be charged with them. Such non-action on their part, even with full knowledge that he claimed them as a perquisite of office, for a stronger reason was of no effect as a surrender or release of the rights of the county. "His duty was made, by the statute, imperative, and he rendered himsslf and his sureties liable for these moneys thus received, and which he has failed to pay or apply according to law, notwithstanding that the board for those years, in auditing and allowing his account, may have knowingly and designedly omitted them as a charge against him. " For these reasons, I am of the opinion that the defendants are liable for these several sums collected or received by him for interest money on county fund, in 1861, 1863 and 1863. Third, as to the sums received by Mr. Wandel, as county treasurer, from the school funds, amounting for the years 1861, 1862 and 1863 (beyond any credits or deductions properly allowed to him), and as above stated, for 186 1 , $2,059.38 ; for 1862, $2,04(5.59 ; and for 1863, $2,5)51.96, beyond what he has accounted for, the errors arc fully established, and he has never paid or applied any portion of them in the manner required by law. " No defence is offered against a recovery of them, except an alleged accounting, in which it is claimed they were merged and satisfied. It appears from the evidence that, at the annual meeting of the board in 1864, and after his accounts for that year had been audited and allowed, Mr. Wandel stated to the board that in relation to the school moneys ' he was befogged ;' that he could not understand the system of accounts kept at the comptroller's office ; that he had never actually received any money from the State, having passed over the checks he received for nv-xicya immediately, in payment of the county indebtedness; the chairman asked him what the difference would amount, to and he replied from $1,000 to perhaps $3,OOJ or $7,000. He retire 1, and the board conferred together; they discussed and took into consideration the services he had 1872.] OF THE STATE OF NEW YORK. 43 1 . . Supervisors of Richmond County v. Wandel. performed in enlisting men and procuring substitutes to fill the quota required from the county toward filling the draft and in raising funds to meet the expenses of the draft, which were stated to have been arduous, and Mr. Keeley, one of the members, moved (substantially) ' that what- ever difference existed in Wandel's accounts with the county, in respect to these school moneys, should be allowed to him for services in relation to the draft.' This proposition was put to vote, and passed unanimously. " This resolution, however, was never signed by the chairman or the clerk of the board, nor recorded in any book of record of the county, nor was it ever reduced to writing, or manifested otherwise than by the verbal reso- lution above stated. "Another resolution, highly commendatory of him and his services iu behalf of the county in effecting the enlistment of men to fill the quota of the county, was then also passed and recorded in the county ledger. " From the accounts of the treasurer, presented in evidence, it further appeal's that Wandel, in 1863, received credit for commissions (on war loan of $20,000) $200, and for fees for obtaining loans and issuing bonds, stamps and disbursements, $1,009; and in his accounts, audited and allowed in 1861, he charged and received credit for commissions for raising and dis- bursing money in enlisting volunteers to fill the quota of the county, with which duty he had been entrusted ($1,874 and $4,041.50), $5,9I~>.50; for a commission of $5 per man on 1,003 men enlisted ($2, 233 and ^3,715), the sum of $1,000 ; for completing and delivering bonds ($300 an.l $:J50), $550, making a total of allowances for these very services of $11,46150; and had also been allowed credit in his account, as superintenden t of enlist- ments, for raising mmeys, to wit: two and one-half per cent on $3~>,000, $2,375, five per cent on $62,000 =$3,100, and ten percent on $189,000=. $18,900, together amounting to $24,375. None of those charges and allowances are questioned, but this attempt to make him an additional allowance, gift or gratuity of upward of $10,000 has been repudiated by a subsequent board, which ordered the bringing of this suit, and I am of the opinion that the resolution and action of the board in 1864 to effect that object was void, because " 1st No such claim for services was ever presented by Mr. Wandel, in the form or verified manner required by the twenty-fourth section of chap- ter 180 of the Laws of 1845, as amended by section 2 of chapter 490, of the Laws of 1847, above quoted. It is uncertain from the resolution whether the amount of the deficiencies in the treasurer's account for school moneys (amounting, in fact, to $10,120.99, exclusive of interest) should bo specifically allowed for his entire compensation for his services ' in rela- tion to the draft,' as expressed in the verbal resolution, or should be in addition to the $11,465.50 already allowed him therefor, exclusive of $24,375 credited him for commissions on the bonds issued for loans. The act of 1864 (chap. 8), authorizing the payment of expenses incurred and services rendered in procuring enlistments, does not exempt him from the operation of the act of 1845. This provision of law regulated and con- 44 CASES IN THE SUPREME COURT [June, The People v. Daniell. trolled proceedings of this character, and was intended to prevent any such vague and indefinite action ; the presentation of the account so verified was necessary to confer jurisdiction to act upon the subject. Without presentation in writing of the claim verified, the action of the board was entirely without authority. " 3d. That the action of the board in passing this resolution had no refer- ence to the auditing and allowance of any account then before them, and was void, because, First : It was of a judicial character and should have been in writing. (Meeker v. Van Sensselaer, 15 Wend., 398; Smith v. Hel- mer, 7 Barb., 417 ; 1 Kev. Stat., 367, 9, Subs. 1, 2 ; Taylor v. Henry, 2 Pick., 397 ; Brilton v. Lawrence, 1 Chipman, 103.) Second : It was founded upon a misstatement made by Mr. Wandel of the amount of school money unaccounted for, and without any correct knowledge or information as to the facts of the case being afforded them by Mr. Wandel, or ascertained by them from any other source, as to the true balance of school moneys for which he had failed to account, then amounting, as before stated, to $10,120.99. Third : Whatever was the intention of this board in making the allowance, by way of offset of the services of Mr. Wandel, in the enlistment service of the county, against those school moneys, the legal effect of the resolution was to tender or offer to him the amount of his deficiency as 'compensation' and full satisfaction therefor. He never accepted this proposition, but exacted and retained the full sums for com- missions and services, as before stated, of $11,465.50, or, including the conv- missions credited him, of $35,840. It is for these reasons that I hold that the defendants are liable for the full amount of these school moneys, with interest to be computed on the principal sums from the several dates when they were erroneously allowed or should have been entered in the treasu- rer's account." THE PEOPLE, &e., ex rel. EDWARD P. UNDERWOOD, v. EDWAKD S. DANIELL, Major, &c. (GENERAL TERM, SECOND DEPARTMENT, JUNE, 1871.) The legislature has power, under the State Constitution (art. 11, 1), to create courts-martial for the discipline of the militia. And under the Constitution of the United States (art. 1, 8), and legislation of congress, it is obligatory on the States to provide for such courts as part of their militia system. Article 6 of the State Constitution has no reference to military courts, but applies exclusively to those of civil judicature. The provisions of section 2, article 1, of the State Constitution, in regard tc the right of jury trial, are not applicable to trials by court-martial. 1871.] OF THE STATE OF NEW YORK. 45 The People v. Daniell. NOT are those of 2 R. S., 274, 1, regarding the publicity of the courts. Nor is section 6, article 1, of the State Constitution, regarding the right to appear by counsel. TUB proceedings in this case were brought before the court by certiorari to the defendant, a major of 13th regiment, N. Y. State National Guard, as chairman of a military court martial, appointed for the trial of alleged delinquencies in that regiment. It appeared from the return that a summons was issued by the defendant, as president of the court-martial, directed to and personally served on the relator, a private in company H of the regiment, requiring him to appear before a court- martial on the fourteenth February to answer certain charges preferred against him for failure to attend certain parades and drills ; that the relator appeared before the court at the time specified, and objected to its jurisdiction, upon the ground that the provisions of the act known as the " Military Code," passed March 17th, 1870 (Laws 1870, chap. 30), under which the court-martial was organized, or so much thereof as pre- scribed the method of procedure and the method of enforce- ment of the sentence were unconstitutional. This objection was overruled, and the relator thereupon demanded permis- sion to appear by counsel, and that he be tried by jury, and that his trial should be public. These demands were refused, and the relator, protesting against the jurisdiction of the court and method of its procedure, declined to appear further, and withdrew. Testimony was thereupon taken before the court tending to establish his absence from parades and drills as charged, and he was found guilty and fined therefor to the amount, in the aggregate, of eighteen dollars. The findings and sentence were certified to the brigadier-general, by whose order the court was held, and approved by him, and thereupon the defendant, as president, &c., issued his warrant to the mar- shal of the court, directing him to levy and collect the fines, with his costs, of the goods and chattels of the relator, and, 46 CASES IX THE SUPREME COURT [June, The People v. Daniell. in default thereof, to arrest him and convey him to the county jail and deliver him to the jailor. II. E. Sickels, for the relator. The provisions (act of 1870, chap. 80, art. 13) under which the proceedings were had are unconstitutional. (Const., art. 6 ; Matter of Albany St., 11 Wend., 149, 152; Matter of John and Cherry Streets, 19 Wend., 659, 676; Bloodgood v. M. and II. R. R. Co., 18 Wend., 9, 59 ; Taylor v. Porter et al., 4 Hill, 140, 146 ; Barto v. Ilimrod, 8 N. Y., 483; Ilaynor v. James, 17 id., 316 ; 1, art. 1, Const. N. Y. ; 2 Kent Com., 13 ; Story on Const., 661 ; 2 Coke Inst., 45, 59 ; People v. Hmdes, 37 Barb., 440, 456 ; WesterveU v. Craig, 12 N. Y., 212 ; Wyne- hamer v. People, 13 N. Y., 378, 392, 416 ; 'Rockwell v. Nearing, 35 id., 302, 305 ; Matter of Townsena, 39 id., 71, 180 ; Ls. 1846, ch. 139 ; Doct, 270, 89 ; Wood v. City of Brooklyn, 14 Barb., 482.) John S. Burrill, for the defendant, cited Livingston v. The Mayor (8 Wend., 100) ; Jackson v. Wood (6 Cow., 818, note) ; In re Smith (10 Wend., 449) ; Lee v. Tillotson (24 Wend., 337) ; Barker v. The Pe^le (3 Cow., 686) ; 20 John., 457 ; Rathbun v. Sawyer (15 Wend., 451) ; Const. 1822, art. 7, ,7 ; Plato v. The People (3 Parker Grim., 386) ; Wyneka- mer v. The People (13 N. Y., 378, 427, 458); 1 Pt. S., 1830, 304-312; Murphy v. The People (2 Cow, 815); Dufyv. The People (6 Hill, 75) ; Wood v. City of Brooklyn (14 Barb., 425 ; Glider dove v. The People (10 id., 35) ; In re Empire City Bank (18 N. Y., 199); 8 Abb. Pr., 192 ; Leg- gett v. Hunter (1 9 N. Y., 445) ; Bank of Chenango v. Brown (26 id., 467, 529) ; dark v. Miller (42 Barb., 255) ; Luke v. City (43 Barb., 54); 2 U. S. Stat. at Large, 359 ; Act. Ap. 10, 1806 ; Ex Parte MiUigan (4 Wallace U. S. S. C. R, 123). Present BASNARD, P. J., GILBERT and TAPPAN, J J. By the Court GILBERT, J. The relator is a private in company IT, of the 13th Regiment of the National Guard. He 18V 1.] OF THE STATE OF NEW YORK. 47 The People . Daniell. has sued out this writ of certiorari in order to obtain a review of the proceedings of a court-martial, organized and held pur- suant to article 13, of chapter 80, of the Laws of 1870, known as the Military Code. The court-martial adjudged him to have been delinquent in not attending certain parades and drills specified in the judg- ment, and sentenced him to be fined therefor ; which fines, in the aggregate, amounted to $18. The proceedings and sentence were duly approved by the brigadier-general. Whereupon the respondent, as president of the court-martial, issued his warrant to the marshal, directing him to levy and collect said fines, with his costs, of the goods and chattels of the relator, and, in default thereof, to arrest the relator and convey him to the county jail of the county of Kings. It was not disputed on the part of the relator that all these proceedings were conformable to and authorized by said act of 1870, but it was urged on his behalf that the provisions of said act, relating to courts-martial, are unconstitutional and void. With respect to the merits, it was conceded that the court- martial was organized and proceeded according to the statute. The first question presented is whether courts-martial are authorized by the Constitution. That instrument contains no words which expressly authorize such courts. But we think the legislature has, irrespective of its general powers, the specific power to create them under article nine of the Constitution. The first section of that article provides that "the militia of this State shall, at all times hereafter, be armed and disciplined and in readiness for service." Thib is a positive requirement of the fundamental law, and of neces- sity involves the power of carrying it into effect. The legis- lature, therefore, as the supreme power of the State, have the authority, and it is their duty, to pass appropriate laws to effectuate the object intended. They are the exclusive judges of what laws are proper for this purpose. It cannot be said that the provisions of the statute establishing courts-martial and regulating their proceedings are not fairly within this power. 48 CASES IN THE SUPREME COURT [June The People t>. Daniell. The power to discipline the militia is per se a power to pro- vide for trial and punishment by courts-martial, for such courts have always formed a constituent part of the military system in this country and in England. As was said by the Supreme Court of the United States, in the case of Mittigan, (4 "Wall, 123), "the discipline necessary to the efficiency of the army and navy require other and swifter modes of trial than are furnished by the common-law courts ; and in pursuance of the power conferred by the Constitution, congress has declared the kinds of trial and the manner in which they shall be conducted for offences committed while the party is in the military or naval service. Every one connected with these branches of the public service is amenable to the juris- diction which congress has created for their government." The providing of courts-martial, as one of the means of disci pline for the militia, is rendered obligatory on the States by the legislation of congress, to which the court, in the passage quoted, refers. For, by the Constitution of the United States, the power to provide for organizing, arming and dis- ciplining the militia is conferred upon congress, subject only to the power which is reserved to the States, respect- ively namely, of appointing the officers and of training the militia according to the discipline prescribed by congress. Congress has prescribed this discipline, and in doing so has provided for courts-martial. The States, in the exercise of the power reserved to them on this subject, are bound to conform to this legislation of congress. Congress, however, has not made specific provisions for the formation of courts- martial, or to regulate their proceedings when formed. The only provision is, that " courts-martial for the trial of militia shall be composed of militia officers only." (Act of 1795, 6.) In the absence of legislation by congress, the States have full power and jurisdiction over this subject qualified, at most, by the limitation that the courts, when constituted, shall be military courts. (Const. U. S., art. 1, 8, sub. 15 ; Brightley's Dig., 619 et seq. ; Houston v. Moore, 5 Wheat.; 1 ; Martin v. Mott, 12 id., 19.) 1871.] OF THE STATE OF NEW YORK. 49 The People v. Daniell. It is contended, on behalf of the relator, that article 6 of the Constitution of this State, which establishes and prescribes the courts of this State, and authorizes the legislature to estab- lish inferior local courts, has the effect to prohibit the estab- lishment of courts other than those enumerated, which are not local ; that courts-martial are not enumerated and are not local, and are, therefore, within this prohibition. We are of opinion that this article of the Constitution has no refer- ence to military courts, but applies exclusively to courts of civil judicature. The framers of the Constitution, and the people who passed it, must have known that courts-martial were among the usual means for the disciplining of the militia, and had been established by congress, and if there had existed a design to prohibit them, notwithstanding the provision of the Constitution of the United States before cited, which effectually excludes the power to do so, we think it would have been manifested in express words. If the foregoing views are correct, it is quite manifest that the provisions inserted in the Constitution of this State and of the United States for the protection of the life, liberty, property and rights of the citizens (N. Y. Const., art. 1, 1, 6 ; U. S. Const., 1st amendment), have no application to this case. Nor does the provision of the Constitution of this State, that " the trial by jury, in all cases in which it has been here- tofore used, shall remain inviolate forever," govern courts- martial, for the reason that those courts existed long prior to the Constitution, and the trial by jury never prevailed or was used in them. Indeed, such a mode of trial would be wholly incompatible with the object, end and organization of courts- martial. The only remaining objections brought to our notice are, that the trial of the relator was not in public, as required by 2 Kevised Statutes, 274, section 1, and that he was not allowed to appear and defend with counsel. With respect to the first of these, it is sufficient to say that the statute referred to is contained in part 3 of the Eevised Statutes, which, according LANSING VOL. VI. 7 50 CASES IN THE SUPREME COURT [1872. Livingston v. Green. to .the rule of interpretation established by the case of The People v. Molineux (53 Barb., 10) ; S. C. (40 K Y. R., 113), is limited to courts and ministers of justice, and proceedings in civil cases, and cannot be extended so as to embrace military courts. The answer to the last objection is not quite so plain. Nevertheless, we are of opinion that the proper construction of section 6 of article 1 of the Con- stitution, securing the right to appear and defend with coun- sel, is that it relates only to trials of persons accused of crimes or offences before the ordinary tribunals. It cannot be sup- posed that this provision of the Constitution was intended to prescribe any part of the discipline of the militia, for this is required to be according to the discipline prescribed by Con- gress, and Congress might, therefore, at any time, render the constitutional provision inoperative. The language of that clause of the section in which the right to defend with coun- sel is given is appropriate only to criminal prosecutions, and the right itself is to appear and defend as in civil actions. The fair import of this language is to secure the same right to defend with counsel in criminal cases as in civil actions. Upon the whole, we are of opinion that the proceedings sought to be reviewed are regular and valid. Judgment accordingly. HENRY A. LIVINGSTON and others, Appellants, v. DAVID GREEN and others, Respondents. (GENERAL TERM, SECOND DEPARTMENT, 1872.) A devise to testator's widow for life, " and from and after " her death to all his children in equal shares, creates a vested remainder in fee in the chil- dren to vest in possession on termination of the life tenant's estate. AJI additional provision, that if any child should die leaving heirs, they should receive their parent's portion, furnishes no evidence of intent that the remainder should not vest. Nor does an omission to provide for the case of any of the children dying without issue. 1*72.] OF THE STATE OF NEW YORK. 51 Livingston v. Green. THIS was an appeal from the decision of the court at Special Terra in Dutchess county. The action was brought to partition certain real estate, to which the parties claimed title under the will of Henry A. Livingston, deceased. It appeared that the testator died in June, 1849, seizedof the property in question, and leaving a will dated March 3, 1843, which was duly proved before the Dutchess county sur- rogate and recorded, and which, with others, contained the following provisions : "First. I order and direct my executors and executrix, hereinafter named, should it be found by them necessary for the payment and discharge of any debts or lawful charges that may be against me at the time of my death, or at any time thereafter, should it be required for the support or education of my minor children, to sell all or any of my real estate, wherever situated, except my mansion house and farm, on which I now live, in the town of Poughkeepsie, and which is not to be sold, and to give good and sufficient deeds and conveyances for such other property as they may eell ; and should any overplus remain after paying my debts, such overplus to be paid to my beloved wife, Frederica Livingston, to be by her used and expended for herself and our children, for their maintenance and education. ******** " Fourth. * * * I give, devise and bequeath unto iny beloved wife, Frederica Livingston, all my farm, mes- suage and tenements, with the appurtenances, situated in the town of Poughkeepsie, and county of Dutchess, on which I now reside with my family, and is known as my mansion farm and residence, on the banks of the Hudson river, and which was the homestead of my grand- father, Henry Livingston, deceased, with all the rents, issues and profits thereof, for and during the term of her natural life, to be used and occupied as she may think best, either as her residence, or to let or lease the same, the better to enable her to maintain herself and my younger 52 CASES IN THE SUPREME COURT [1872. Livingston v. Green. children by my marriage with her, in such manner as she may determine, or at any time during her life, best calculated for herself and their interest ; and that for and during her life she shall not be subject to any costs or rents, or imputa- tion of waste by or from any person or persons whatsoever, except the payment of all lawful taxes that may from time to time be assessed on said farm. " Sixth. The income of my farm not being sufficient to maintain my wife and support and educate my younger and minor children, I hereby give the rents and yearly income of all my real estate, in houses and lands, wheresoever situated, and not sold by virtue of this my will, to my said wife, Frederica Livingston, for the continuance of her life, for the support and purposes herein named. " Seventh. From and after the decease and death of my beloved wife, Frederica, I give and bequeath all my real estate then being, whatsoever and wheresoever, including my mansion house and farm, to all my children, and to their heirs and assigns forever, to be equally divided, share and share alike. And should any of my children die and leave lawful heirs, such heirs to receive the portion that their parent would have been entitled to, had such parent lived, viz. r After the death of my beloved wife, Frederica, I give to my son, John A. Livingston, one equal share ; to my son, Abra- ham H. Livingston, one equal share; to my son, Russell Livingston, one equal share; to my daughter, Louisa M. James, wife of Edward K. James, one equal share ; to my daughter, Frederica C. Livingston, one equal share ; to my daughter, Christina Ten Brouck Livingston, one equal share ; to my daughter, Cornelia Beekman Livingston, one equal share ; to my daughter, Jane Murray Livingston, one equal share ; to my daughter, Henrietta Ulrica Livingston, one equal share ; to my son, Henry Philip Livingston, one equal share ; to my son, Augustus Linlithgo Livingston, one equal share. ***** " Ninth. On the event happening of the death of my wife, 1872.] OF THE STATE OF NEW YORK. 53 Livingston v. Green. Frederica Livingston, and on a division of my estate, in equal shares amongst my children, as named in the seventh section of this my will, I hereby declare such shares to be an estate in fee to them and their heirs or assigns ; and they, or either of them, are empowered to give good and sufficient deeds for his, her or their shares of my real estate." A portion of the premises in the complaint were referred to in the will as the " mansion house and farm," and with the other premises described therein comprised all the real estate of the testator which remained unsold at the time of the death of his widow. It also appeared that the testator left surviving him his widow and eleven children mentioned in his will, and that before the decease of the widow all but four of such children had died intestate and otherwise, leaving various children, devisees and descendants, who were made parties to the action, and claimed their respective interests in the portions of the property devised by the testator to their ancestors, and put in their answers to the complaint. The court found the following conclusions of law, viz. : " That on the death of Henry A. Livingston each of his said children then living, by virtue of and under the provisions of his will, became seized in fee of an undivided one-eleventh of the premises described in the complaint, subject to the life estate therein of Frederica C. Livingston, the widow of said deceased," and that the several devisees and heirs-at-law of the children of the testator, who were deceased at the death of the widow, were seized and entitled to their interests therein of their respective ancestors or testators. There were also certain special finding* of law not essen- tial to an understanding of the decision here. The plaintiff and others appealed. Ndson & Baker for appellants. J. 8. Van Chef, S. W. Buck, Sanford & Woodruff and, Emott & Taylor for various other parties. Present GILBERT and TAPPEN, JJ. 54 CASES IN THE SUPREME COURT [1872. Livingston v. Green. By the Court GILBERT, J. The language of the will in this case is plain and well chosen for the purpose indicated. The testator gave his wife an estate during her life, and to his children, each, a vested remainder in fee in one eleventh part of his estate, which should vest in possession upon the termination of the life estate of his widow. As all the children survived the testator, the provision that the children of a deceased child should take the share their parent would have taken never took effect. It is hardly disputed that such is the legal effect of the language employed, but the appellants contend that the whole will manifests an intention on the part of the testator that his estate should not vest in his children until the death of his widow, and that the children then living should take as survivors, the issue of a deceased child taking a parent's share. The will contains no language adapted to make such a disposition. The devise is "to all my children and their heirs and assigns." He then repeats the gift to his children, naming them, and specifies the share each is to take, namely, one equal share. In the last sentence, the words " heirs and assigns " are omitted. Taking the gift in either form, how- ever, it is the same in legal effect, for the term heirs or other words of inheritance are not requisite to create an estate in fee. The devise, then, is to the testator's wife during her life, and after her death to his children, each one share. No more apt words could have been chosen to create a vested remainder in fee in the children. The words " from and after the death of my wife " do not make a contingency, but merely point to the time when the estate is actually to vest in possession. The provision for the children of a deceased child was probably inserted because the testator thought it was necessary to prevent a lapse. At common law it would have been necessary for that purpose, but the rule has been changed by statute. (2 E. S., 66, 52.) But whatever the object was, it furnishes no evidence of an intention that the devise of the remainder should not vest at the death of the 1872.] OF THE STATE OF NEW YORK. 55 Livingston v. Green. testator. To give the will that effect, we should have to interpolate into it, after the words " should any of my chil- dren die," the words " after my decease and before the ter- mination of the estate given to my wife " or the like, which is not admissible. Nor is there any special significance in the fact that the testator omitted to provide for the contin- gency of any of his children dying without issue, for the only effect of such an event would have been to enlarge the shares of the children who survived the testator, or in case the child who died left a descendant to vest the share of such child in such descendant. It is claimed, also, that the share which the testator gave to any of his children was liable to be divested on such child's dying without leaving lawful issue surviving at his death. But such an effect could not be produced without a radical alteration in the language of the will. It would be necessary to change the gift to the chil- dren from an absolute gift of a remainder in fee, into a gift to them during their lives, and after their decease to their heirs and assigns. This, according to the doctrine of Moore v. Littel (41 N. Y., 66), would, if the same effect should be given to a devise as to a grant, make a vested remainder in each of the grandchildren of the testator, which would be liable to be divested by their death before that of their parents, and the several shares of the estate would, upon the death of the widow, and the life tenants of such shares respec- tively vest in the grandchildren then living, according to the shares given to their parents respectively. The will of the testator does not admit of such a construc- tion, and we could not give it that effect without making a new will for him. We are unable to perceive that the ninth clause in the will makes any change in the legal import and effect of the seventh clause. There could not, in the nature of things, be any actual enjoyment by the devisees in remainder of their separate shares during the life of the widow. But this is evidently the kind of enjoyment which the testator meant by the term " division of my estate." When, therefore, the testa- 56 CASES IN THE SUPREME COURT [1872. Carpentier . Minturn. tor referred to a division of his estate among his children, as named in the seventh section, he intended to embrace all the beneficiaries therein mentioned. The provision in the seventh section, that the heirs of a deceased child should take the share of their parent, is, by a settled rule of interpretation, restricted to heirs of the body, and such heirs may properly be included in the meaning of the word children as used in the ninth clause. Nor can any different effect be given to the phrase " on the event happening of the death of my wife," in the ninth clause, than to the like phrase in the seventh clause. Both have the same meaning, and point only to the time when the actual enjoyment of the estates in remainder shall begin. Upon the whole, we see no reason to doubt that the court below put the right construction upon the will, and we are unable to discover any general or particular intention of the testator which that construction would defeat. , The judgment is, therefore, affirmed with costs. HORACE W. CAEPENTIEE, Respondent, v. CHAELES MINTUKNT, Appellant. (GENERAL TERM, SECOND DEPARTMENT, 1872.) A foreign statute of limitation is not a bar to an action here. To a complaint on promissory notes, the defendant set up in defence a fail- ure of consideration, for the reason that the notes were given for exclu- sive ferry rights which the payee held under a city ordinance, which proved, upon judicial determination, ultra vires of the city corporation. Held, no defence, and demurrable for that reason. Also, that the mistake of the vendor and vendee was in regard to a gene- ral law of the land. THIS was an appeal by the defendant from an order at Special Term in Kings county, sustaining a demurrer to parts of the defendant's answer. The complaint was on two promissory notes for $500 each, and interest at the rate of three per centum per month, seve- 3872.] OF THE STATE OF NEW YORK. 57 Carpentier v. Minturn. rally bearing date April 14, 1858, and made at San Francisco, California, by the defendant and others, jointly and severally, to the plaintiff'. The complaint averred that a statute of the State of Cali- fornia, of April 13, 1850, authorized contracts in writing for the payment of any stipulated rate of interest on money due or to become due, and that, under this statute, judgment upon such an agreement should conform to the rate of inte- rest provided for thereby, and that the notes were made and delivered pursuant to such statute. The defendant admitted the execution and delivery of the notes as alleged ; denied knowledge or information sufficient to form a belief whether they were correctly described in the complaint ; also as to the alleged statute of California, and delivery of the notes pursuant thereto, and the ownership of the notes ; it denied that the notes were valid contracts, and the defendant's liability thereon, set up the statute of limita- tions, and also the following as defences to the action, viz. : " Third. And as a separate and distinct defence to the said complaint, this defendant alleges that the said promissory notes were made, executed and delivered to the said plaintiff by this defendant and the Contra Costa Steam Navigation Company, under a certain sale and assignment, or indenture, made the 21st day of October, 1854, by and between the said plaintiff and Edward R. Carpentier and Harriet N". Carpen- tier, of the first part, and this defendant and the Contra Costa Steam Navigation Company, of the second part, whereby the said parties of the first part granted, bargained, sold and assigned unto the said parties of the second part, their legal representatives and successors, or assigns, for the term of twenty years, from the twelfth day of March, 1853, all the exclusive right and privilege of landing with steam ferry- boats running between the city of Oakland and the city of San Francisco, or between the said city of Oakland and any other place, at any wharf or landing which then was or might thereafter be constructed in said city of Oakland, which the said parties of the first part, or either of them, may have LANSING VOL. VI. 8 58 CASES IN THE SUPREME COURT [1872. Carpentier v. Minturn. acquired or were entitled to, by virtue of any ordinance of the board of trustees of the town of Oakland, or of any deed or conveyance, contract or grant, from said town, and particularly a certain contract for the establishing and maintaining a public ferry between the said city of Oakland and the said, city of San Francisco, or between the said city of Oakland and any other place, entered into between the said Edward R. Carpentier and the said town of Oakland, on the twelfth day of March, 1853 ; together with all his rights, privileges and franchises, and interest, under and by virtue of said contract, and of a certain ordinance of the board of trustees of the town of Oakland, passed the fifth day of March, 1853, and entitled ' An ordinance to create a public ferry between the town of Oakland and the city of San Francisco, and to provide for keeping up and running the same ;' and also all his right, title and interest in the ferry then in operation, under said ordinance and contract, a copy of which said ordinance and contract are hereto annexed as part of this answer, and marked A and B, and for no other consideration whatever; which said ordinance was made under and by virtue of the third section of an act of the legislature of the State of California, entitled ' An act to incorporate the town of Oak- land, and to provide for the construction of wharves thereat,' approved May 4, 1852, and which is as follows, to wit : ' That the board of trustees shall have power to make such by-laws and ordinances as they may deem fit, proper and necessary to regulate, improve, sell and otherwise dispose of the common property, to prevent and extinguish fires, to lay out, make, open, widen, regulate and keep in repair, all streets, roads, bridges, ferries, public places and grounds, wharves, docks, piers, slips, rivers, wells and alleys, to authorize the construc- tion of the same; and with a view to facilitate the construc- tion of wharves and other improvements, the lands lying within the limits aforesaid, between high tide and ship chan- nel, are hereby granted and released to said town ;' and this defendant alleges that the said contract and ordinance, so sold 1872.] OF THE STATE OF NEW YORK. 59 Carpentier v. Minturn. and assigned to him as aforesaid, and for the assignment oi which to him, as aforesaid, the promissory notes set forth in the said complaint were given by this defendant, as aforesaid, were wholly null and void. That the said board of trustees had no lawful power or authority to make said contract, or to make or pass said ordi- nance. That they did not convey or give to the holders or owners thereof any right or title to the exclusive. right or title and privilege of landing with steam ferry boats running between the said city of Oakland and the said city of San Francisco, or between the said city of Oakland and any other place, at any wharf or landing which then was or might there- after be constructed in said city of Oakland ; and that the said third section of said act of the Legislature of the State of California, under and by virtue of which the said ordinance was passed and said contract was made, so far as it undertook to grant said exclusive right or privilege of ferriage as afore- said, was repugnant to and in violation of the provisions of the Constitution of the United States, and was utterly null and void. " And the defendant further alleges, that said third section of said act of the legislature of the State of California did not authorize said board of trustees to make said contract, or to make or pass said ordinance. That said town of Oakland did not own any of said ferry rights or privileges, and said contract and said ordinance were made by said board of trus- tees without any power or authority whatever, and the same were null and void. "That said Edward R. Carpentier had no right, title or interest in said ferry then in operation, and that said notes, in consequence thereof, were given to the said plaintiff by the defendants and the said Contra Costa Steam Navigation Company, without receiving any consideration for the same whatever. " Fourth. And for a separate and distinct defence to the said complaint, this defendant alleges that by an act of the legislature of the State of California, entitled 'An act 60 CASES IN THE SUPREME COURT [1872. Carpentier v. Minturn. defining the time for the commencing civil actions,' passed April 22, 1850, it was enacted by chapter 3, section 17, of the same, ' that an action upon any contract, obligation or liability, founded upon an instrument in writing, excepting upon a judgment or decree of any court of the United States, or of any State or Territory within the United States, shall be commenced within four years from the time ;' and this defendant alleges that the alleged causes of action, set forth in said complaint, did not accrue within four years before the commencement of this action. " Fifth. And for a separate and distinct defence, and as a counter-claim to the said complaint, this defendant alleges that after the making of the said assignment of said exclu- sive right or privilege of ferriage by the plaintiff and the said Edward R. Carpentier and the said Harriet N. Carpentier to the defendant and the said Contra Costa Steam Navigation Company, above referred to, the plaintiff demanded, exacted and received, for said pretended exclusive right of ferriage, from the defendant, at sundry times between the second day of August, 1856, and the fourth day of October, 1858, divers sums of money, to wit : " (setting forth a list of payments) "amounting in the aggregate to thirteen thousand and fifty- eight dollars and fifty-one cents ($13,058.51) in gold coin of the United States, and this defendant paid said plaintiff said several sums of money for said assignment of said con- tract, and said ordinance, copies of which are hereto annexed, as above set forth, pretending to grant said exclusive right of ferriage 'under the third section of said act of the legislature of the State of California, approved May 4, 1852. And this defendant paid said plaintiff said several sums of money for no other consideration whatever. " And this defendant further alleges that said contract and said ordinance so sold and assigned to him as aforesaid, and for the assignment of which to him said money was paid as aforesaid, were wholly null and void. " That the said board of trustees had no lawful power or authority to make said contract or to make or pass said OF THE STATE OF NEW YORK. 61 Carpentier 0. Minturn, ordinance. That they did not convey or give to the holders and owners thereof any right or title to the exclusive right and privilege of landing, with steam ferry-boats running between the said city of Oakland and the said city of San Francisco, or between the said city of Oakland and any other place, at any wharf or landing which then was or might thereafter be constructed in said city of Oakland ; and that the said third section of the said act of the legislature of the State of California, under and by virtue of which the said ordi- nance was passed and said contract was made, so far as it undertook to grant said exclusive right or privilege of ferriage as aforesaid, was repugnant to and in violation of the pro- visions of the Constitution of the United States, and utterly null and void. " And the defendant further alleges that said third section of said act of the legislature of the State of California did not authorize said board of trustees to make said contract or to make or pass said ordinance ; that said town of Oakland did not own any of said ferry rights or privileges, and said contract and said ordinance were made by said board of trus- tees without any power or authority whatever, and the same were null and void ; that said Edward R. Carpentier had no right, title or interest in said ferry then in operation, and said several sums of money were paid by this defendant to the said plaintiff, as aforesaid, without this defendant receiving any consideration therefor whatever. " And the defendant further alleges that when said assign- ment or indenture was made and delivered to this defendant as aforesaid, and when the said plaintiff demanded, exacted and received said several sums of money of this defendant as aforesaid, this defendant supposed and believed that said assignment of said contract and said ordinance gave to this defendant the exclusive right or title and privilege of landing, with steam ferry-boats running between the said city of Oakland and the said city of San Francisco, or between the said city of Oakland and any other place, at any wharf or landing which then was or might thereafter be constructed 62 CASES IN THE SUPREME COURT [1372. Carpentier v. Minturn. in said city of Oakland ; and this defendant paid said plaintiff said several sums as aforesaid under said supposition and belief, and in ignorance of the facts that the said plaintiff and the said Edward R. Carpentier and Harriet N. Carpen- tier had no right to said exclusive privilege of ferriage or to convey the same, and that said contract and said ordinance were wholly null and void, and that said third section of said act of the legislature of the State of California, so far as it undertook to grant said exclusive right or privilege of ferriage as aforesaid, was contrary to the provisions of the Con- stitution of the United States, and without any force or effect whatever ; and that said town of Oakland was not the owner of said ferry rights, and that said board of trustees had n< power or authority to make said contract or to make am 1 pass said ordinance ; otherwise, the defendant would not have paid, or undertaken to pay, said several sums of money to the said plaintiffs, nor either of them ; and this defendant was ignorant of the facts above set forth as aforesaid, and acted under the supposition and belief as aforesaid set forth, and continued ignorant of said facts until after the payment of said sum of money as aforesaid, when it was adjudged by the Circuit Court of the United States for the district of Cali- fornia, at the July term thereof, in the year 1858, in a certain case wherein Edward Minturn was the plaintiff and one Larue and others were the defendants, that said contract and said ordinance did not confer an exclusive right or privilege of ferriage as aforesaid, and that said town of Oakland had no power to grant said exclusive right of ferriage, and that said third section of said act of the legislature of the State of California did not grant said exclusive right or privilege of ferriage as aforesaid, and, so far as it undertook so to do, was contrary to the provisions of the Constitution of the United States, and without any force or effect whatever ; which said judgment of said Circuit Court of said district of California was afterward in all things affirmed by the Supreme Court of the United States, at the December term thereof, in the year 1859 ; that by an act of the legislature of the State of 1872.] OF THE STATE OF NEW YORK. 63 Carpentier v. Minturu. California, passed March 13, 1850, entitled 'An act to regu- late the interest of money,' and which is still in full force and effect, it was provided by the first section of said act : ' "When there is no express contract in writing, fixing a differ- ent rate of interest, interest shall be allowed at the rate of ten per cent per annum for money received to the use of another.' "And this defendant further says that said assignment, con- tract and ordinance were made in the State of California, and said moneys demanded, exacted and received by said plaintiff from the said defendant were demanded, exacted and received as aforesaid, from the defendant, in said State of California, and by reason thereof the said plaintiff became liable to pay said money to this defendant, in said State of California, with the interest thereon as expressed in said statute of the State of California, as above set forth. "Sixth. And for a separate and distinct defence, and as a counter-claim to the said complaint, this defendant alleges, upon his information and belief, that on or about the month of May, 1852, the said plaintiff and one A. Moon entered into a contract with William N. Brown, of the same purport and effect as said indenture or assignment made between the plaintiff, Edward R. Carpentier and Harriet N. Carpentier, of the first part, and the said defendant and said Contra Costa Steam Navigation Company, of the second part, whereby the said plaintiff and the said A. Moon granted and conveyed said exclusive right and privilege of ferriage to said William N. Brown, under said contract and ordinance, marked exhibits A and B, which said contract, made by said plaintiff and said A. Moon, said William N. Brown immediately thereafter sold, assigned, transferred and set over to this defendant and said Contra Costa Steam Navigation Company, which said com- pany was owned by this defendant. "And this defendant further alleges that, after the making the said assignment, by the said Brown, to this defendant and said company, the plaintiff demanded, exacted and received for said pretended exclusive right or privilege of 64 CASES IN" THE SUPREME COURT [1872. Carpentier . Minturn. ferriage from this defendant, by virtue of said contract made by said plaintiff and said A. Moon with said Brown, a certain promissory note for $9,000, dated San Francisco, May 1, 1856, signed by this defendant, by W. B. Min- turn, his attorney, and by the said W. B. Minturn and Horatio N. Squires, which said promissory note this defend- ant states, upon his information and belief, was delivered to the said plaintiff by his said attorney, and said plaintiff there- after demanded, exacted and received, from this defendant, divers sums of money, between the r first day of November, 1856, and the fourteenth day of June, 1858, for said pre- tended exclusive right and privilege of ferriage, on account of said promissory note, as follows, to wit : " November 6, 1856, $2,250 ; May 4, 1857, $1,000 ; May 12, 1857, $400 ; May 22, 1857, $50 ; March 24, 1858, $2,250 ; and June 16, 1858, $1,000 ; making in the aggregate the sum of $7,750 in gold coin of the United States ; and this defend- ant paid said plaintiff said several sums of money for said assignment of said contract and said ordinance, copies of which are hereto annexed, as above set forth, pretending to grant said exclusive right of ferriage under the said third section of the act of the legislature of the State of California, approved May, 1852; and this defendant paid said plain- tiff said several sums of money for no other consideration whatever. "And this defendant further alleges that said contract and said ordinance so sold and assigned to him as aforesaid, and for the assignment of which to him said money was paid as aforesaid, were wholly null and void. That the said board of trustees had no lawful power or authority to make said con- tract, or to make or pass said ordinance ; that they did not convey or give to the holders and owners thereof any right or title to the exclusive right and privilege of landing with steam ferry-boats running between the said city of Oakland and the said city of San Francisco, or between the said city of Oak- land and any other place, at any wharf or landing which then was or might thereafter be constructed in said city of Oak 1872.] OF THE STATE OF NEW YORK. 65 Carpentier v. Minturu. land ; and that the said third section of said act of the legis- lature of the State of California, under and by virtue of which said ordinance was passed and said contract was made, so far as it undertook to grant said exclusive right or privilege of ferriage as aforesaid, was repugnant to and in violation of the Constitution of the United States, and utterly null and void. " And the defendant further alleges that said third section of said act of the legislature of the State of California did not authorize said board of trustees to make said contract, or to make or pass said ordinance ; that said town of Oakland did not own any of said ferry rights or privileges ; and said con- tract and said ordinances were made by said board of trustees without any power or authority whatever, and the same were null and void ; that said Edward R. Carpentier had no right, title or interest in said ferry then in operation, and said seve- ral sums of money were paid by this defendant to the said plaintiff as aforesaid, without this defendant receiving any consideration for the same whatever. "And the defendant further alleges that when said assign- ment or indenture was made and delivered to this defendant as aforesaid, and when the said plaintiff dpmanded, exacted and received said several sums of money of this defendant as aforesaid, this defendant supposed and believed that said assignment of said contract and said ordinance gave to this defendant the exclusive right or title and privilege of landing with steam ferry-boats running between the said city of Oakland and the said city of San Francisco, or between the said city of Oakland and any other place, at any wharf or landing which then was or might thereafter be constructed in said city of Oakland ; and this defendant paid said plaintiff said several sums as aforesaid, under said supposition and belief, and in ignorance of the facts that the said plaintiff' and the said Edward R. Carpentier and the said Harriet N. Car- pentier had no right to said exclusive privilege of ferriage, or to convey the same ; and that said contract and said ordi- nances were wholly null and void ; and that said third section of said act of the legislature of the State of California, so fai LANSING VOL. VL 9 66 CASES IN THE SUPREME COURT [1872 Carpentier v. Minturn. as it undertook to grant said exclusive right or privilege ot ferriage as aforesaid, was contrary to the provisions of the Constitution of the United States, and without any force or effect whatever ; and that said town of Oakland was not the owner of said ferry rights, and that said board of trustees had no power or authority to make said contract, or to make and pass said ordinance ; otherwise this defendant would not have paid, or undertaken to pay, said several sums of money to the said plaintiff, nor either of them ; and this defendant was ignorant of the facts above set forth as aforesaid, and acted under the supposition and belief as aforesaid set forth, and continued ignorant of said facts until after the payment of said sums of money as aforesaid, when it was adjudged by the Circuit Court of the United States for the district of California, at the July term thereof, in the year 1858, in a certain action wherein Edward Minturn was the plaintiff and one Lame and others were the defendants, that said contract and said ordinance did not confer an exclusive right or privi- lege of ferriage as aforesaid, and that said town of Oakland had no power to grant said exclusive right of ferriage, and that said third section of said act of the legislature of the State of California did not grant said exclusive right or privi- lege of ferriage as aforesaid, and, so far as it undertook so to do, was contrary to the provisions of the Constitution of the United States, and without any force or effect whatever; which said judgment of said Circuit Court of said district of California was afterward, in all things, affirmed by the Supreme Court of the United States, at the December term thereof, in the year 1859. " That, by an act of the legislature of the State of Cali- fornia, passed March 13, 1850, entitled 'An act to regulate the interest of money,' and which is still in full force and effect, it was provided by the first section of said act, ' when there is no express contract in writing fixing a different rate of interest, interest shall be allowed at the rate of ten per cent per annum for any money received to the use of another.' 1872.] OF THE STATE OF NEW YORK. 67 Carpentier v. Minturn. "And this defendant further says that said assignment, con- tract and ordinance were made in the State of California, and said money demanded, exacted and received by the said plaintiff from the said defendant, were made, exacted and received as aforesaid from this defendant in the State of Cali- fornia ; and by reason thereof the said plaintiff became liable to pay said money to this defendant, in said State of California, with the interest thereon, as expressed in said statute of the State of California, as above set forth. "Wherefore this defendant demands judgment against the said plaintiff; that said complaint be dismissed, and that said notes be delivered up to this defendant to be canceled, and for the sums of money above set forth in said counter-claims, with interest thereon from the time of said payments as afore- said, at the rate of ten per cent per annum, besides the costs of this action." Annexed were copies of the contract and ordinance referred to in the answer. The plaintiff demurred, as follows : "Horace W. Carpentier, the plaintiff in this action, by his attorney aforesaid, demurs to the fourth ' separate and dis- tinct answer and defence ' of the defendant to the complaint in this action, by him pleaded, and states and shows to the court here the following grounds of objection and demurrer to the said fourth defence, that is to say : That the said fourth ' separate and distinct defence,' and the matters therein con- tained, are not sufficient in law to constitute either a counter- claim or defence in this action. "And the said plaintiff further says that the said fourth defence does not contain facts sufficient to constitute either a defence to the said complaint, and to the said action of the said plaintiff, or a counter-claim thereto, and that it is in other respects uncertain, informal and insufficient. Where- fore the said plaintiff doth demur thereto, and he prays judg- ment whether he ought further to answer the same or be barred of his said action. " Second. Andthe said plaintiff demurs to the fifth ' separate 68 CASES IN THE SUPREME COURT [1872, Carpentier v. Minturn. and distinct defence' by the said defendant fifthly above pleaded as a defence, ' and as a counter-claim to the said com- plaint,' and says that the same, and the matters therein con- tained, are not sufficient in law to constitute a defence to the said complaint or to the said action of the said plaintiff. " And the said plaintiff states and shows to the court here the following further ground of objection and demurrer to the said fifth defence and counter-claim, that is to say : That it does not state facts sufficient to constitute a cause of action in favor of the said defendant against the said plaintiff, nor a counter-claim in favor of the said defendant against the said plaintiff in this action ; and is in other respects uncertain, informal and insufficient. Wherefore the said defendant doth demur thereto, and he prays judgment whether he ought further to answer the same or reply thereto. " Third. And the said plaintiff demurs to the ' separate and distinct defence" of the said defendant, by him sixthly above pleaded as a defence and as a counter-claim to the said com- plaint of the said plaintiff, and says that the same and the matters therein contained are not sufficient in law to consti- tute a defence to the said complaint or to the said action of the said plaintiff. " And the said plaintiff states and shows to the court here the following further grounds of objection and demurrer to the said sixth defence and counter-claim, that is to say : That the said sixth supposed defence and counter-claim does not state facts sufficient to constitute a cause of action in favor of the said defendant against the said plaintiff, nor a counter- claim in favor of the said defendant against the said plaintiff in this action, and that it is in other respects uncertain, infor- mal and insufficient. " Wherefore, by reason of the insufficiency of the said sixth defence and counter-claim, the said plaintiff doth demur thereto, and he prays judgment whether he ought further to answer the same or reply thereto, and he also prays judgment as in and by his said complaint he has already prayed." 1872.] OF THE STATE OF NEW YORK. 69 Carpentier v. Minturn; Charles N. Black and S. P. Nash for the appellant. The act of the State of California did not authorize the trustees of Oakland to make the contract and ordinance. {Minturn v. La Rue, 1 McGill, 370 ; 23 How., 435.) They contended substantially that the subject of the alleged purchase was not u matter of doubtful right, but had in reality and fact no existence, and hence could not support a promise, citing Sher- man v. Barnard (19 Barb., 291 ; Gardner v. The Mayor, etc. 26 id., 423). Also, that if the money was paid in mistake it was one of fact not of public law, as the charter of Oakland was but a private act. (Sharswood's Black. Com., vol. 1, p. 85 and notes ; introduc. 3 ; Story on Cont., 101.) J. S., Carpentier and John K. Porter ', for the respondent, among other grounds for affirmance, contended that the fourth, fifth and sixth defences contained new matter not constituting a counter-claim and were bad in substance, citing Code of Procedure. (Merritt v. Millard, 5 Bosw., 645; Lawrence v. Simmons, 34 Barb., 355, 358 ; JV. jT. <& Harlem JR. R. v. Marsh, 12 N. Y., 308 ; Fieetwood v. City of New York, 2 Sand., 475 ; Louber v. Selden, 11 How. Pr., 526.) That the foreign statute of limitation could not be pleaded. (Ruggles v. Keeler, 3 John., 263; Lincoln v. Battelle, 6 Wend., 475 ; Christmas v. Russell, 5 Wai., 290, 301 ; Story's Oonfl. of L., 577 ; Toulandon v. Lachenmeyer, 6 Abb. Pr. [N". S.], 215 ; 1 Sweeney, 45 ; Bulger v. Roche, 11 Pick., 36 ; Dwight v. Clarice, 7 Mass., 516 ; Power v. Hathaway, 43 Barb., 214.) That there was a mistake, not of fact, but of law. {Curtis v. Brooks, 37 Barb., 476 ; Silliman v. Wing, 7 Hill, 159 ; Supervisors of Onondaga v. Briggs, 2 Denio, 40 ; Trigge v. Lavallee, 15 Moore Pr. C. C., 271 ; Clarke v. Dutcher, 9 Cow., 694 ; Mowatt v. Wright, 1 Wend., 355 ; Wyman v. Farnsworth, 3 Barb., 369.) They also cited Homer v. Wood (15 Barb., 371); Window v. Buel (11 How. Pr., 373); Har- mon v. Bird (22 Wend., 112) ; Whitney v. Lewis (21 id., 130) ; Reed v. Randall (29 K Y., 358). 70 CASES IN THE SUPREME COURT [1872. Carpentier v. Minturn. l Present BARNAKD, P. J. and TAPPEN, J. The judgment was affirmed ; and the following opinion, given by GILBERT, J., below, adopted as that of the court, GILBERT, J. I think the demurrer is well taken. The California statute of limitations is not a bar here. Nor can it have the effect of varying the contract. That was made, and was to be performed in California. The law of that State, therefore, governs the contract. By that law the exorbitant rate of interest was lawful, and the plaintiff may enforce the contract in that respect as well as any other. With respect to the counter-claim, it is alleged that there was a failure of the consideration of the defendant's obliga- tion, for the reason that the plaintiff sold the defendant an exclusive ferry right, whereas, the right which actually passed under his grant was not an exclusive one. The plaintiff transferred precisely the right which was granted to him by the town of Oakland. The defendants enjoyed the subject of the grant during the time the payments sought to be recovered back were made. After these payments were made it was judicially determined that by a proper construc- tion of the act of the legislature of California, by which the right to establish ferries was conferred upon the town of Oak- land, no power to grant an exclusive right was given. No doubt this very much impaired the value of the ferry right which the defendants bought of the plaintiff. There is no averment, however, of any fraud or misrepresentation or surprise. Both parties, no doubt, supposed the grant made by the town of Oakland was that which it in terms purported to be, an exclusive one. The mistake arose from a miscon- struction of the statute of California under which the grant was made. This clearly was one of law, and not only that, but of the general law of the land. There was no mistake as to any fact in the transaction. I think it would be unsettling a well established and salu- 1872.] OF THE STATE OF NEW YORK. 71 Champlin v. The Railway Passenger Assurance Company. tary rule to allow the defendants to take advantage of such a mistake. The cases cited by the counsel for the defendants are not in conflict with the rule. In all of them there were other ingredients, independent of the mere ignorance of law. The mistake of law was not per se the foundation of relief, but was only the medium of proof by which some other ground of relief was established. There must be judgment for the plaintiff on the demurrer, with costs, with leave to the defendants to amend on payment of costs. CHARLES G. CHAMPLIN, Respondent, v. THE RAILWAY PAS SENGER ASSURANCE COJIPANY, Appellant. (GENERAL TERM:, SECOND DEPARTMENT, 1872.) The contract of insurance is an exception to the rule which denies compen- sation for injuries of which the party's own negligence or want of due care have been the primary cause. So held of insurance against accident An accident insurance policy, covering risks while traveling, held to insure against an accident which occurred while the insured was getting into a public conveyance for passengers, while in motion. THIS was an appeal from a judgment entered upon a deci- sion of tho court at Special Term. The action was upon an accident insurance policy, which the plaintiff had taken from the defendant on the first day of July, 1867, and which purported to insure him against any accident while traveling by public or private conveyances for transportation of passengers in the United States, &c., causing personal injury, &c., for one day. It appeared that the plaintiff, on the same day, attempted to jump on to an omnibus, a public conveyance used for car- rying passengers, while the same was in motion ; that he suc- ceeded in getting on to the steps, which were at the rear of the omnibus, but was unable, by reason of the jar of the vehi- 72 CASES IN THE SUPREME COURT [1872. Champlin v. The Railway Passenger Assurance Company. cle, to maintain his footing, and received injuries of a serious nature, from contact of his knee with the wheel. VarricTc & Eld/ridge, for the appellant. Nelson & Baker, for the respondent. Present GILBERT and TAPPEN, JJ. By the Court GILBERT, J. The general rule of law undoubtedly is, that a party is not entitled to compensation for an injury of which his own negligence or want of due care has been the primary cause. The contract of insurance, however, forms an exception to the rule. It has been repeatedly so held in England and in the United States, in relation to insurance against fire and to marine insurance. (Gates v. Madison Ins. Co., 1 Seld., 478 ; Mathews v. How- ard Ins. Co., 1 Kern., 9, and authorities cited; see, also, Breasted v. Farmers' L. & T. Co., 4 Seld., 299.) The rea- son given is that this contract is one of indemnity, and that one object which the assured has in view in effecting an insu- rance is protection against casualties occurring from this cause. The same reason applies with equal force to the con- tract in this case. We are, therefore, of opinion that the proximate cause of the injury only can be looked at, and that, such cause being an accident, it is within the policy. The only remaining question is, was the plaintiff traveling when the accident happened ? He was in the act of getting into a public conveyance for that purpose, and was injured while upon the outside step thereof. It would be a very strained construction -of a contract like this to hold that he was not traveling. If he was not traveling it is difficult to say what he was doing. We think that as he was actually going from one place to another, he was traveling. The judgment should be affirmed, with costs. Judgment affirmed. 1872.] OF THE STATE OF NEW YORK. 73 Jones v. Milbank. CHABLES JONES, Assignee, &c., Respondent, v. JEREMIAH MILBANK and others, Appellants. (GENERAL TERM, SECOND DEPARTMENT, 1872.) An assignee in bankruptcy may recover assets which the bankrupt has fraudulently concealed from his creditors, although the application for discharge was granted after opposition on the ground of the same fraud- ulent concealment. The proceedings on application for the bankrupt's discharge are, it seems, conclusive only in that proceeding. THIS was an appeal by the defendants from an order sus- taining a demurrer to their answer to the plaintiff's com- plaint. The plaintiff set forth facts showing his title to the estate of the defendant Isaac L. Hewitt as assignee in bankruptcy, and then averred that Hewitt had been doing business in New York as a partner in several firms, one of which still existed and was composed of the defendants. That Milbank, one of the defendants, was ostensibly a special partner in such firm, but that his ostensible interest was in fact the property of Hewitt, and that Milbank's name was in fact used to cover up and conceal the interest of Hewitt in the firm. That the interest of Hewitt hf the firm amounted to the value of $35,000, and the complaints prayed judgment for the sum of $35,000, an account of the profits of the firm, and a decree against them for the profits belong- ing to Hewitt. The defendants answered, setting up that the action was not brought by the plaintiff of his own motion, but upon the instigation of certain creditors of Hewitt ; also the proceed- ings in bankruptcy under which Hewitt was declared bank- rupt. And they further alleged that the creditors mentioned had filed proof of their claims, and also, on behalf of them- selves and other creditors, objections to a discharge of Hewitt, which objections were the same as were set up by the plain- tiff as a ground of the relief asked in his complaint, and LANSING VOL. VI. 10 74 CASES IN THE SUPREME COURT [1872. Jones v. Milbank. that the issues thereon were duly tried, and the matters, in respect thereto, fully investigated, and all of them decided in favor of Hewitt, and a full discharge in bankruptcy granted thereupon. To their answer, the plaintiff demurred, for a failure to state facts constituting a defence. W. W. Niles, for the appellant. i Smith <& Cole, for the respondents. Present GILBERT and TAPPEN, JJ. By the Court GILBERT, J. The facts pleaded in the answer are no bar. This appears from the terms of the bank- rupt act as well as from the nature and object of the system created by it. The plaintiff was not and could not be a party to the proceeding in the District Court, nor was he in any sort of privity with the bankrupt. But if he could be deemed a privy in estate, his title accrued at the very commencement of the proceedings in bankruptcy ( 14), which, of course, was long before the proceeding to oppose the discharge was had. There would, therefore, be no estoppel, for the princi- ple of estoppel has no application except where the convey- ance is made, after the event out of which the estoppel arises. (Campbell v. Hall, 16 N. Y. R., 575, and cases cited.) The title to property transferred by the bankrupt, in fraud of his creditors, is, in express terms ( 14), at once vested in the assignee in virtue of the adjudication in bankruptcy and the appointment of his assignee, and the latter is authorized to sue for and recover the same ; and whether the creditors, who oppose the bankrupt's discharge, succeed or fail, the pro- perty which may be received or recovered by the assignee remains vested in him, and distribution thereof is to be made among the creditors. ( 27, 28.) The proceeding to oppose the discharge seems to be con- clusive only in that proceeding. If the determination is in 1872.] OF THE STATE OF NEW YORK. 75 Liscoinb v. The New Jersey Railroad and Transportation Company. favor of the bankrupt, lie gets his discharge. But any credi- tor may afterward, and within two years, apply to the court to annul it on the same grounds on which it had been opposed, or others, and if the fraud be established, the court is required to set aside and annul the discharge, unless the creditors so applying had knowledge of such fraud before the discharge was granted. ( 31.) The statute also provides ( 29) that the discharge itself shall not be valid if the bankrupt has made any fraudulent disposition of his property, or done any of the acts which the statute denounces, thus leaving the discharge open to attack in any court wherever set up as a bar. It is unnecessary to pursue the subject further ; the judg- ment below was clearly right and should be affirmed, with costs, with leave to the defendants to amend on payment of costs. Judgment affirmed. SARAH M. LISCOMB, Respondent, v. THE NEW JERSEY RAIL- ROAD AND TRANSPORTATION COMPANY. (GENERAL TERM, SECOND DEPARTJIEXT, 1872.) Where it appeared that the plaintiff and her husband, residing here, removed into New Jersey, where they kept house for a year, and then were without permanent abode, visiting here and in New Jersey, until after commencement of the action, when they resumed housekeeping in this State, and it did not appear with what intention, as to residence, they removed from the State or returned to it, Held, that the plaintiff was presumptively a resident of this State. A railroad company is guilty of gross negligence in leaving a hole in the floor of the depot, where its passengers are accustomed to alight from its cars, thus rendering their landing unsafe. THIS was an appeal, by the defendant, from a judgment in favor of the plaintiff, upon the report of a referee. The plaintiff sued in December, 1870, to recover of the defendant, a foreign corporation, created under the laws of New Jersey, to recover damages alleged to have been sus- 76 CASES IN THE SUPREME COURT [1872. Liscomb v. The New Jersey Railroad and Transportation Company. tained in consequence of injuries occasioned by reason of the defendant's negligence. It appeared that the plaintiff, while descending from one of the defendant's cars, upon which she was a passenger, at Jersey City, at the proper time and place, caught one of her feet in a hole in the floor of the depot, and sustained a per- manent injury. There was a distance from the step of the car to the floor of from two feet seven inches to three feet. The floor was of plank, and directly beneath the place of alight- ing was the hole from three to six inches deep, and of sufficient width and length to admit of the foot of an adult person Other facts are stated in the opinion of the court. Charles F. Stanford, for the appellant. Joshua M. Van Cott, for the respondent Present BARNARD, P. J., GILBERT and TAEPEN, JJ. By the Court GILBERT, J. The subject of tl^e action being transitory and personal, the rule of the common law is, that the defendants may be sued wherever they can be found and served with process. (Story Confl. L., 554.) Personal rights and obligations, founded in contract or growing out of the duty which one owes to another, follow those who are entitled to enforce them wherever they may go, and may be enforced by every court which obtains jurisdiction over ' the parties. (Bennett v. Benjamin, 15 Mass., 355 ; Smith v. Bull, 17 Wend., 323 ; Latourette v. Clark, 45 Barb., 330 ; Mostyn v. Fabrigas, 1 Smith Lead. Ca., 785-789 ; Scott v. Seymour, 1 H & C., 210.) The complaint avers that the defendants have an office and place of business in the city of New York. They appeared, and for some time litigated the action upon the merits, without any contention respecting the jurisdiction of the court. We must presume that they were duly served with the summons, conformably to the statute applicable to such cases ; and section 125 of the Code of Procedure in 1872.] OF THE STATE OF NEW YORK. 77 Liscomb v. The New Jersey Railroad and Transportation Company. terms provides for the trial of an action where none of the parties reside within this State. The defendant's counsel, however, contends that the evidence shows that the plaintiff was not, when the action was commenced, a resident of this State, and that the defendant being a corporation, created by the laws of the State of New Jersey, was not amenable to the jurisdiction of the court, by force of section 427 of the Code of Procedure, although the summons was served within this State, personally, in the manner provided by section 134 of said Code. It is not necessary to decide the precise question thus pre- sented, because the referee found the fact to be that the plain- tiff was a resident of this State, and we are of opinion that the evidence was sufficient to sustain such finding. It appears that the plaintiff is a married woman, and that the action was commenced in December, 18TO. The plaintiff and her husband both testified that their residence was in the city of Brooklyn. It appears that, up to the year 1868, they resided in the city of New York ; that they then removed to Rahway.New Jersey, where they remained and kept house for about a year ; that they then broke up housekeeping, and that they had no permanent abode until May, 1871, when they resumed housekeeping in Brooklyn. During the interval between November, 1870, and May, 1871, the plaintiff' a^d her husband boarded a part of the time in Brooklyn, making frequent visits to their relatives, who resided in New Jersey and in New York. The evidence, however, irrespective of the direct declarations of the plaintiff and her husband, was not conclusive upon the subject of their residence or domicile during that period. The plaintiff's residence, in contempla- tion of law, was that of her husband. The husband was not questioned, as to his intentions, when he left New York and went to New Jersey. He may have been domiciled in New York, and have taken up his residence in New Jersey, for a temporary purpose, without changing his domicile. In such a case, by abandoning his temporary residence with the inten- tion of returning to his place of domicile, the latter, in the 78 CASES IN THE SUPREME COURT [1872, Liscomb v. The New Jersey Railroad and Transportation Company. . i , . . absence of evidence that before his actual return to his domicile he had acquired another residence elsewhere, would be deemed his residence. Nor was he questioned respecting his intentions as to his future place of residence, when he quitted Rah way. The evidence is certainly insufficient to show that he actually acquired another residence in New Jersey. Leaving out of view the positive statements of the plaintiff and her husband, that they resided in Brooklyn, however, and conceding that the rest of their evidence may be regarded as sufficient to show that their actual residence was in New Jersey, still it was competent for the referee to take those statements into consideration, and to decide upon the effect of all the evidence on this subject, and we ought not to reverse his finding, especially as the point does not go to the merits of the case. We are clearly of opinion that the facts entitled the plain- tiff to recover. The defendants were guilty of gross negli- gence in leaving a hole in the floor where passengers were accustomed to alight from their cars. They were not bound to afford a platform higher than the floor, for the purpose of a landing, but they were bound to see that the place which they did provide for the landing of passengers, whether a platform or a floor, was a safe one. It does not appear that the plaintiff saw the hole in the floor, in question, or that she omitted the use of any reason- able precaution to prevent the accident. She had a right to rely upon the floor being free from holes, without taking special pains to ascertain whether it was or not before she stepped upon it. (Ferris v. Union Ferry Co., 36 N. Y., 312 ; Davenport v. Jtucfanan, 37 id., 568, 573.) The case presents no ground for setting aside the verdict because the damages were excessive. The judgment should be affirmed with costs. Judgment affirmed. 1872.] OF THE STATE OF NEW YORK. 79 Rycisman t>. Gillis. KATE T. RYCKMAN Respondent, v. STEPHEN 0. GILLIS, Appellant. (GENERAL TEEM, SECOND DEPARTMENT, 1872.) Under a conveyance of land, with covenant for quiet enjoyment, reserv- ing the right to enter on a certain part thereof and dig and take the clay and sand fit for brick making, Held, that the grantor was not at liberty to remove the lateral support of the land granted, in the exer- 1 else of his right to take the clay and sand from the part specified. Also, that the property in the clay and sand was excepted from the con- veyance, and the provision in respect to entry for their removal did not change the nature of the grantor's title to them. THIS was an appeal by the defendant from a judgment for the plaintiff, on the decision of the court, for damages, and perpetually restraining the defendant from so digging and removing clay or sand from certain premises as to destroy or impair the lateral support which the soil of such premises afforded to the plaintiff's adjacent premises, or to increase the tendency of such adjacent lands to crack, subside or fall away. The questions in controversy turned upon the construction of a deed from the plaintiff to one Sarah B. Shutes, who had conveyed to the plaintiff, subject to the defendant's rights under his deed to her. The defendant claimed a right to remove clay and sand from a portion of the premises granted by him to Shutes, without regard to a disturbance of the con- dition of the remaining land by removal of the lateral sup- port thereof; and the action was to recover damages for inju- ries already done in that particular, and for an injunction restraining the defendant from acts causing similar injuries. The provisions of the deed from the defendant,- so far as material, are stated in the opinion. It appeared that, at the" time of defendant's conveyance, there were, and so remained at the time of sale, buildings upon the premises granted, and that, after receiving his title, the plaintiff had enlarged and improved them, but that these buildings neither disturbed the natural coherency of the soil, V 80 CASES IN THE SUPREME COURT [1872. Ryckman v. Gillis. or by their weight increased the tendency of the plaintiff's lands to fall away into the excavations made by the defendant. E. A. Brewster and E. L. FancJier, for the appellant. S. W. Fullerton, for the respondent. Present GILBERT and TAPPEN, JJ. By the Court GILBERT, J. The determination of this case turns on the construction of the deed from the defend- ant to the plaintiff's grantor. The cardinal rule in the con- struction of deeds is to give effect to the intention of the parties to it ; and this is now made obligatory by statute. (1 R. S., 748, 2.) This deed conveys twelve acres of land in fee, with a clause in it " reserving to the said Stephen C. Gillis, his heirs and assigns, the right at all times hereafter, so long as the clay or sand may last or be used for brick-making purposes, to enter upon that part of the aforesaid premises bounded and described as follows (here follows description), containing one acre and seventy-five hundredths of an acre of land ; and to dig and take therefrom the clay and sand that may be found thereon fit for brick making. Such clay and sand is to be taken for no other purpose than brick making, and the right to enter upon the aforesaid part of said premises is to be only for the purpose of digging and removing such clay and sand." It also contains a covenant on the part of the defendant that "the said party of the second part (plaintiff's grantor), her heirs and assigns, shall and may, at all times hereafter, peace- ably and quietly have, hold, use, occupy, possess and enjoy the above-granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molesta- tion, eviction or disturbance of the- said parties of the first part, their heirs or assigns, or of any other person or per- sons lawfully claiming or to claim the same." It is not disputed that the plaintiff is entitled to subjacent L872.] OF THE STATE OF NEW YORK. 81 Ryckman v. Gillis. and adjacent support to her land, unless the right to take away such support has been expressly granted to the defend- ant. It is contended by the defendant that the legal effect of the reservation in his deed is the same as that of an express grant to him of the right reserved. No doubt this is true. But he further contends that the right is to remove the lateral and vertical support of the plaintiff's land, without regard to the consequences to the plaintiff. "We are of opinion that the deed does not allow of such a construction. The right contended for is not given in terms, and it would be unrea- sonable to suppose that the parties contemplated any such consequence. Upon such a construction the covenant for quiet enjoyment would have little effect. Taking the whole deed and giving effect to every part of it, we think the inten- tion of the parties was to except from the premises granted the clay and sand, and to give the defendant the right to remove them, provided he would do so without disturbing the plaintiff 's grantor in the enjoyment of that part of the property not excepted. Indeed, we are of opinion that such is the legal effect of the instrument upon the language employed. The use of the word "reserving 1 ' in the clause relating to the clay and sand, does not make that clause a technical " reservation." Lord COKE says : " The word t/ 1 reserve ' sometimes hath the force of saving and excepting. Sometimes it serveth to reserve a new thing, viz., a rent, and sometimes to except a part of the thing in use that is granted." (Co. Litt., 47 a, 143 a.) A reservation is never of any part of the estate granted, but must be of some new thing issuing out of it, as rent and the like, while an exception can only be of a part of the premises described as granted. (Shep. Touch., 77, 78 ; Craig v. Wells, 1 Kern., 315.) Applying these rules, it is evident that the clay and sand were not conveyed by the defendant, but the property in them remained in him after the deed as before. The grant of the right to enter for the purpose of removing them worked no change in the nature of the defendant's property in the mate- rials, for he had precisely the same right, and no other or LANSING VOL. VI. 11 82 CASES IN THE SUPREME COURT [1872. Terrett v. Crombie. different, before the grant was made. As to the clay and sand, therefore, the defendant occupied the position of an adjoining proprietor to the plaintiff, and was subject to the rule of the common law that every person must so use his own property as not to do any damage to the property of another. The plaintiff's right of subjacent and adjacent sup- port to his land is an easement which exists as a natural accessory of the soil. It is founded in justice, and is now- well sustained by authority. (Wiles v. Winsterly, 2 Roll Ab., 564 ; Farrand v. Marshall, 21 Barb., 410, and cases cited; Harris v. Ryding, 5 M. & W., 60; N. S. Bail. Co. v. Crosland, 32 Law Jour., chap. 358 ; Caled. R. Co. v. Sprot, 2 McQueen, 452 ; Harris v. Roberts, 7 S. & B., 625.) The judgment must be affirmed, with costs. Judgment affirmed. CHARLES "W. TEKRETT, Respondent, v. JAMES CROMBIE and MARY CROMBIE, Appellants. (GENERAL TEEM, SECOND DEPARTMENT, 1872.) The defendant took a deed of building lots, which were under contract of sale, and agreed with his grantor to make advances for building pur- poses to the purchaser, and in due time convey to him and receive back mortgages, and, after deducting his advances and certain other sums and claims from the price under the contract, pay the surplus to the grantors by the second mortgages of the purchaser. Held, that he was a trustee stibmodo for the grantor, and was bound to convey the subject of the trust to her on payment of the amount due him, with expenses of man- agement and interest; and, until discharged from the trust, to hold, manage and preserve the property for the grantor. Held, also, that he could not divest himself of the character of trustee by becoming the purchaser of the property upon foreclosure sales in actions brought by himself upon the second mortgages, no settlement having been made with the grantor, and she not having been party to the action. And that this was so, notwithstanding the legitimate claims of the defendant under the agreement exceeded the amount secured by the mortgages, and the remaining payments and securities had been exhausted by his payments in accordance with the agreement. 1872.] OF THE STATE OF NEW YORK. Tcrrett t. Crombie. And quere whether the fact would have been otherwise if the grantor had been party to the foreclosure actions. Nor was the defendant discharged from the trust by the grantor's refusal, upon request, to retake the property and pay him his advances and claims. Nor by his paying to the grantor a greater amount than that of the mort- gages. Held, further, that the wife of the defendant had no claim to dower in the property, superior to the grantor's right to redeem, on payment of the advances, &c. THIS was an appeal by the plaintiff from a judgment in the plaintiff 's favor, entered on the report of a referee. The action was brought to redeem certain property in Brooklyn, to which James Crombie, the defendant, claimed title as purchaser at foreclosure sales, in actions brought by him as the mortgagee in second mortgages thereon. The facts as they appeared and were found by the referee were substantially these, viz.: One Eleanor Terrett, the plaintiff's assignor, held the title to two tiers of five lots Bach, situate respectively on the north- easterly and north-westerly corners of Franklin and Madison streets, Brooklyn. These she had contracted to sell to one Jane Hudson at the price of $900 per lot, and at the same time had agreed to advance $6,600 to her for the erection of buildings upon the lots, and for conveyance upon completion of the buildings. Afterward, upon the failure of Jane Hud- son to fulfill her part of the contract, the plaintiff conveyed the lots to the defendant, James Crombie, and assigned to him the contract of sale. Crombie executed back to the plain- tiff an agreement in the nature of a defeasance, setting forth the object of the conveyances and the nature and extent of their respective interests in the property. The contracts with Jane Hudson were canceled, and new contracts, of like nature with the first contracts of sale, were given by Crombie to other parties, with the plaintiff's consent. The ultimate agreement made between the plaintiff and Crombie contemplated that Crombie should make advances iii aid of the erection and completion of houses on the lots 84 CASES IN THE SUPREME COURT [1872, Terrett v. Crombie. and in due time convey them and receive first and second mortgages thereon, which he should use as follows, viz. : The first mortgages in raising money to be applied toward the expenses of the improvements and toward reimbursing him- self for advances. Upon satisfaction of his claims out of the proceeds of first mortgages, or of the sales of the houses and lots, and by retaining to himself second mortgages for the balance, Eleanor Terrett was to have all the residue of the second mortgages or moneys ; but the second mortgages were not to be assigned until the houses should be completed. If there should be a failure of the party contracting to purchase and build upon the lots, and they should be sold to others, Crombie was to pay over to Eleanor Terrett all he should receive on sale of the houses and lots, after retaining to him- self all sums and payments provided for in the contract. In pursuance of the arrangement so made, Crombie con- veyed the houses and lots to one Atkins, and received of him a first and second mortgage on each of the houses and lots. Of these first mortgages Crombie negotiated nine, retaining the other to himself, and he applied the moneys he received on the mortgages and used one of the second mort- gages in procuring supplies for the buildings, and he ceased to have any interest in the house and lot covered by the last- mentioned second mortgage. Before the completion of the houses, and on the failure of Atkins to pay the interest due on the nine second mortgages, Crombie obtained judgment of foreclosure upon the second mortgages, and for sale of the lots covered thereby, in an action in which he was plaintiff, as mortgagee. On the sale of the houses and lots in pursuance of the judgment, he, Crombie, became the purchaser, and took conveyances to him- self. Eleanor Terrett was not party to the action. After the foreclosure sale, Crombie sold and conveyed three of the houses, and held the remaining six at commencement of the action. At the time of the conveyance to Atkins the houses were unfinished, he, Atkins, having failed to fullfil a contract made 1872.] OF THE STATE OF NEW YORK. 85 Terrett t>. Crombie. with his assignee for the purchase of the property and comple tion of the buildings, and the houses and lots were not then sale able for a sufficient amount to pay Crombie for his advances, and the sums specified in his agreement with the plaintiff as payable to him out of the proceeds of the sale and mortgages of the property, which sums included advances for the build- ing, for taxes, accounts due to him from the plaintiff, and for services in care and attention and labor in respect to the pro- perty, and also attorney's and counsel fees earned by him as an attorney, etc., in respect to the same matters. At that time Crombie requested the plaintiff's assignor, Eleanor Ter- rett, to take the second mortgages, and pay him the amount due under the agreement, but she declared her inability to comply with this request. At the foreclosure sale of the second mortgages, the agent of Eleanor Terrett attended and bid upon the lots, but there were no bids for a sufficient amount to cover Crombie's claim under the contract upon the property, which in the aggregate amounted to some $15,000. Other facts are stated in the opinion of the court. James Crmribie and Henry Woodruff, for the appellants. /. M. Van Cott, for the respondent. Present BARNARD, P. J., GILBERT and TAPPEN, JJ". By the Court GILBERT, J. The agreements between Mrs. Terrett and Mr. Crombie are plain and unambiguous. They show that all the transactions of Mr. Crombie in respect to the real estate in controversy were entered into and conducted by him for her benefit ; that he held successively the title to such real estate and the mortgage thereon as security merely for her indebtedness to him, which each agreement specifies, and that he was bound to transfer to her such real estate or the proceeds thereof, upon being paid such indebtedness. He was, therefore, as to the subjects of the agreement, a trustee 8G CASES- IN" THE SUPREME COURT [I872L Terrett v. Crombie. sub modo for Mrs. Terrett ; that is to say, he was bound to- con vey the subject of the trust to her upon being paid the amount due him, with the expenses of management and inte- rest, and in the meantime, or until duly discharged from the- trust, to hold, manage and preserve the property for her. "When Crombie conveyed to Atkins and took back the mortgages, this character of a security was at once impressed on them, and he held them, upon the same trust upon which he had before held the real estate. No rule in equity is bet- ter settled than that a person so situated is incapacitated from acquiring by purchase on his own account the property affected by the trust without the consent of the cestui que trust. The only effect of the foreclosure of the mortgages was to bar the equity of redemption of the mortgagor and those claiming under him in the land. When Mr. Crombie as purchaser at the sale acquired the property, the same trust attached to it as had before attached to the mortgages*. The decrees in the foreclosure suits did not affect Mrs. Terrett's equitable right to redeem the mort- gages, for she was not a party to those suits ; and it is at least doubtful whether it would have made any difference if she had been a party. Having a right to redeem the mortgages,, she has, upon the principle before stated, the same right to- redeem the land acquired by Mr. Crombie by the foreclosure thereof. The cases of Hoyt v. Martinse (16 K Y., 231) and Case v. Carroll (35 id., 385) are decisive upon this point. Has anything occurred to relieve or discharge Mr. Crombie from this trust ? Nothing is shown except a request by Mr. Crombie, made to Mrs. Terrett in September, 1860, that she should take the property and pay him the amount due him, to which she replied that she was unable to do so. It is very clear that this transaction had no legal effect whatever upon the equitable rights of the parties. There was no relinquishment by Mr. Crombie of Mrs. Terrett's indebtedness to him, and, so long as this continued, her right to redeem and the trust to preserve that right continued also. A trustee cannot denude himself of the character of trustee by his own act, or bj 1872.] OF THE STATE OF NEW YORK. 87 Terrett v. Crombie. abandoning or relinquishing the trust. He can be discharged only by a complete execution of the trust, by a decree of the court, by the agreement of the cestui que trust, or by virtue of a power in the instrument creating the trust. (Lewin on Trusts, 565.) It appears that in July, 1860, Mr. Crombie advanced or paid to Mrs. Terrett a sum of $1,245, and another sum of forty-nine dollars, for which she gave written receipts, stating that they had been received on account of the last of the agreements aforesaid, dated February 25th, 1860, in lieu of mortgages. It is now claimed on behalf of Mr. Crombie that these sums, together with the sums previously advanced by him, and the indebtedness of Mrs. Terrett to him, men- tioned in said agreement, exceeded the nominal amount of the mortgages in his hands, and that therefore the title to said mortgages became absolute in him, and the case of Chal- mer v. Bradley (1 J. & W., 64) is cited as an authority for this position. But the dictum referred to merely shows that where a debtor places personal property in the hands of another for the purpose of raising a fund to pay the debts of the former, due to third persons, if the trustee advances to the creditors out of his own pocket more than the value of the property, he would acquire an absolute right to it by operation of law. No doubt there may be cases in which that principle would be correct. But it is never applicable where the trustee holds the property as security for his own debt. In such a case, the qualified title of the trustee cannot be converted into an absolute one, except by a sale authorized by law, or by consent of the cestui que trust. (Story Eq. Jur., 1008.) It is true, Mr. Crombie would have been bound to receive the amount of the mortgages in cash, if that amount had been tendered by the mortgagor or any one in privity with him, and in such case Mrs. Terrett would have been entitled to a credit only for the amount so received. But she is equally entitled to any incidental advantages arising from any other disposition of the mortgages, for the rule is 88 CASES IN THE SUPREME COURT [1872. Terrett v. Crombie. that a trustee shall not be permitted to speculate out of the subject of the trust. It is a salutary rule of public policy, and ought to be steadily upheld, in spite of the apparent hard- ship of particular cases. Tt is also said that Mr. Crombie was entitled, by virtue of the agreement of July 25, 1860, to appropriate the mortgages iti payment of the amount due him. We think that is not the fair import of the agreement ; but, assuming that it is, he did not in fact so appropriate the mortgages. No accounting was had, the amount due from Mrs. Terrett was not ascertained, nor was she credited with any more on account of the mort- gages. For aught that appears, Mr. Crombie retained the same hold upon Mrs. Terrett after the sales as before, and had done no act to bind him, in case the property depreciated, to apply any particular sum on account of her indebtedness. At all events, such indebtedness remained open and unliquidated, and therefore whatever he held as security, whether it was in the original or a substituted form, continued to be held merely as security, and he remained under all the obligations in respect to it which he originally assumed. It is claimed on behalf of Mrs. Crombie that she has a right of dower in the premises sought to be redeemed. At common law the legal estate of a trustee was subject to dower ; but, as a dowress takes by operation of law, if she should take dower in a trust estate she would only take it subject to the same equities as affected the trustee. Consequently it is now the rule that a widow has no dower in the lands held by her hus- band as trustee. If the trustee has a beneficial interest in the land, dower will attach to such interest ; but not to the inte- rest of a mortgagee, or to any interest which is subject to the right of redemption of the cestui que trust. "Whatever right Mrs. Crombie has to the land in question is subject to the right of redemption of Mrs. Terrett, and will be effectually barred by a redemption by virtue of the decree in this case, or by a conveyance by her husband in execution of the trust thereby established. (Lewin on Trusts, 279 ; Kent Com., 43 ; Cooper v. Whitney, 3 Hill, 97; 1 R. S., 741, 5, 6, 7.) 1872.] OF THE STATE OF NEW YORK. 89 Gove v. Lawrence. The conclusions of the referee appear to be in accordance with the principles expressed, and we have been unable to dis- cover any errors in the account stated by him. The decree, therefore, is affirmed without costs to the plain- tiff ; but a clause must be inserted in the judgment of affirmance, that if the plaintiff avails himself of the right to redeem, he must do it within thirty days after service of a copy of the judgment entered hereon upon his attorney, and that in default of such redemption he arid all claiming under him be barred, &c., and that Mr. Crombie recover his costs upon this appeal. The order upon the motion to send back the referee's report is affirmed, with ten dollars costs. WALTER S. GOVE, Respondent, v. ALEXANDER M. LAWRENCE and another. Appellants. (GENERAL TERM, SECOND DEPARTMENT, 1872.) The satisfaction of a judgment affirmed in the Court of Appeals discharges the sureties upon the appeal bond, and entitles the appellant to a return of securities delivered as security against liability on the bond. Proof of fraud, or mistake to which the surety was privy, hi procuring the satisfaction, might enable him to retain the securities. An agreement by one member of a copartnership with a trustee of the firm to divert securities belonging to the firm, in the hands of the latter, to the individual use of the former is not valid. THIS was an appeal taken by the defendant from a judg- ment for the plaintiff entered on the report of a referee. The action was brought to recover a share (one-half) of the proceeds of certain bonds left in the hands of the defendant, Lawrence, by the firm of Gove & Ward, composed of the plaintiff and defendant Ward, who was made a defendant on refusal to join as plaintiff. It appeared that the plaintiff and Ward were partners in business, and entitled each to one-half of the property and assets of the partnership. That during the continuance of the part LAXSIXG VOL. VL 12 90 CASES IN THE SUPREME COURT [1872. Gove . Lawrence. nership the firm deposited with the defendant, Lawrence, five bonds of the United States, with coupons attached, which were firm property, taking a receipt therefor as follows, viz. : YORK, September 15, 1863. " Received from Messrs. Ward & Gove five bonds, of one thousand dollars each, of the United States, and known as five-twenties, Nos. 37,857, 37,858, 37,859, 37,860 and 37,861, the same being deposited with me as security for bonds given by John S. Lawrence, John C. Giles, and myself, as security for an appeal of a suit of Messrs Ward & Gove to Court of Appeals ; and upon the final decision and settlement of same, said bonds are to be returned to Messrs. Ward & Gove. " ALEXANDER M. LAWRENCE. " The coupons, when due, are to be handed to Messrs. Ward & Gove. "A.M.LAWRENCE." It also appeared that the defendant, Lawrence, procured undertakings to be given with him by John C. Lawrence and John C. Giles, mentioned in the receipt, in actions, in which one Kelsey as plaintiff had recovered judgment against the firm of Ward & Gove as defendants, on appeal therein to the Court of Appeals. The referee found, as a fact, that the judg- ment had been paid, satisfied and canceled of record ; that pay- ments had been made by Lawrence on account of the judgments for principal and interest, and that he should have in his hands some $3,000, or the value thereof, beyond the payments. The referee found that the plaintiff was entitled to one-half of that sum, with interest. It was claimed by the defendant, before the referee, that the evidence established the fact that the satisfaction piece of one of the judgments, in respect to which the security had been given upon appeal, was given by mistake, under a sup- position that the judgment had been fully paid, whereas the costs alone had been paid, and the defendant requested a finding as to the amount actually paid upon such judgment, 1872.] OF THE STATE OF NEW YORK. 91 Gove v. Lawrence. and as to whether there was mistake in giving the satisfaction piece. He also requested findings of law upon the question of payment of the judgments, and as to whether the defendant Lawrence, knowing of the mistake, was released from the lia- bility of surety. The referee refused to find further than already found by him. Moody B. Smith, for the appellant. Charles Jones, for the respondent. Present BARNARD, P. J., GILBERT and TAPPED, JJ. By the Court GILBERT, J. Upon the evidence, the case is clear. 1st. The receipt of September 15th, 1863, contains the contract. By the terms of that, the defendant Lawrence agreed to hold the bonds as security for liabilities of his co-sureties and himself on undertakings given on behalf of Ward & Gove, upon appeals by them to the Court of Appeals, in certain actions between them and Charles Kelsey. It appears that Kelsey prevailed in these appeals, and that the judgments recovered were duly satisfied by him. The satisfaction of these judgments discharged the defendant and his co-sureties on the undertaking, and entitled Ward & Gove to a return of the bonds. It may be that, if any fraud or mistake occurred in procuring the satisfaction of the judg- ments, and Lawrence was privy to it, he would be permitted to avail himself of the facts, as giving him the right to retain the securities. But there is no proof of such mistake or fraud, nor has Kelsey asserted the existence of either of those facts, or sought in any way to invalidate the satisfac- tion pieces of the judgments. We are of opinion that the evidence on this subject constitutes no defence to the action. 2d. The only other defence is, that Ward agreed that Lawrence might apply the securities in payment of a debt due him by Ward individually. There being no evidence of the assent of the plaintiff to this agreement, or of any act 92 CASES IN THE StJPKEME COURT In the Matter of the Petition of Nathaniel Ford. of ratification on his part, this agreement was not binding upon him, and the finding of the referee upon the facts, as applied to this case, was correct. An agreement by one member of a copartnership with a trustee of the firm, to divert securities belonging to the firm, in- the hands of the latter, to the individual use of the former, is not valid. The judgment must be affirmed, with costs. Judgment affirmed. IN THE MATTER OF THE PETITION OF NATHANIEL FOED, to vacate an assessment for the repaving of Union street, etc., in the city of Brooklyn. (SPECIAL TERM, KINGS COUNTY, 1872.) By the Brooklyn city charter (Laws 1854, chap. 384, tit. 4, 24, etc.), the assessors for street assessments, after hearing parties interested, are to make a report, with the objections presented to them, which the com- mon council are to refer to a committee, who, after a hearing pursuant to notice published, are to report to the common council, Held, that the omission of the committee to publish notice of hearing was fatal to the assessment. Held also, that the act of 1871 (chap. 483), limiting the authority of the court, in case of irregularity, to a reduction of assessments to the extent of its increase by the irregularity, though retroactive, was inapplicable. A local assessment for street improvements is not a tax, within the mean- ing of article 7, section 13, Constitution, which requires every law imposing a tax to state the tax and its object, &c. The statutory requirement in the charter of Brooklyn ( 5, etc., tit. 4), that a district of assessment shall be laid out preliminarily, is a restriction merely on the power of the common council in respect to work ordered by them. Commissioners having an option as to the kind of pavement to be used for streets, but required to give the work after advertising for proposals to the lowest bidder, may determine the particular kind to be laid down by inviting proposals for different kinds, and thereupon awarding to the lowest bidder for the kind selected. The resignation of commissioners appointed by the statute of 1868 (chap. 460), authorizing repavement, etc., of a street in Brooklyn, 1872.] OF THE STATE OF NEW YORK. 93 In the Matter of the Petition of Nathaniel Ford. and their employment on and compensation for part of the work authorized, will not, in the absence of proof of fraud or injury to the public interests, vitiate the assessment, but the sums embraced in their assessment for their compensation is to be deducted from the assessment under the law of 1871 (chap. 483). THE facts are stated in the opinion. Jfvarts, Southmayd & Choate, for the petitioner. William 6'. De Witt, opposed. GILBERT, J. The statute by virtue of which Union street was repaved and the assessment therefor sought to be vacated was made (Laws of 1868, chap. 460), provides that the expense of the improvement " shall be levied and collected in the same manner as now provided by law with reference to grading and paving streets in Brooklyn." The provisions of law thus adopted are contained in the charter of the city. By section 33 of title 4 of the charter, provision is made for an assessment by the board of assessors of the expense of the grading and paving streets upon the several lots, pieces or parcels of land benefited, in proportion to the benefit which, in their opinion, the same shall derive from, or in justice ought to be assessed for the said improvement. By section 24 of the same title the board of assessors are required to make a report in writing of the assessment so made, and, before signing the same, to give ten days' notice, in the cor- poration newspapers, of the time and place where the parties interested can be heard. After hearing the parties, the said board is required to complete and sign the report, and to return it, with the written objections of the parties interested, to the common council. The common council are required to refer and report the objections to a committee of the board ; and said committee is required to " publish a notice in the corporation newspapers for ten days successively to the par- ties interested, of the time and place when and where they will meet to hear them on the objections and report." The committee are required to examine the matter and report tc 94 CASES IN THE SUPREME COURT [1872. In the Matter of the Petition of Nathaniel Ford. the common council its views and opinions respecting the assessment. Thereupon the common council are required to examine the matter, and either correct the assessment, send it back to the board of assessors or confirm it, and their con- firmation of the assessment is made final and conclusive. Objections were made by the petitioner and other parties interested, and left with the board of assessors, and were returned with their report. The common council referred them to a committee, but this committee gave no notice to the parties interested, affording them an opportunity to be heard, and the assessment was confirmed without any hear- ing of the persons assessed or any of them by said committee or by the common council. I am of opinion that the omission to give this notice was a fatal irregularity. The principle is very familiar, that when a special authority is delegated by statute to particular per- sons or public bodies affecting the property of individuals against their will, the course and mode of proceeding pre- scribed by law must be rigorously pursued, and every sub- stantial requirement of the statute giving the power must be strictly fulfilled. (Sharp v. Spier, 4 Hill, 76.) The duty imposed on the board of assessors and on the common council is a judicial one in its nature. It is a fundamental rule that in all judicial or quasi judicial proceedings whereby the citi- zen may be deprived of his property, he shall have notice and an opportunity of a hearing before the proceedings can become effectual. The statute under consideration secures and enforces this rule, and it cannot be doubted that the notice which was omitted was the essence of the proceeding, and essential to the validity of the assessment. The act of April 13, 1871 (chap. 483), amendatory of the statute authorizing this kind of pro- ceeding to vacate an assessment, provides that the court shall only have authority to reduce the assessment as much as it has been increased by the irregularity. Here, however, the irregu- larity goes to the whole assessment. The error is not one in amount merely, but is one which vitiates the entire assess- ment. 1872.] OF THE STATE OF NEW YORK. 95 In the Matter of the Petition of Nathaniel Ford. While I am of opinion that this amendatory statute is retroactive in its operation, and applies to all proceedings instituted after it took effect, yet the provision cited cannot be applied to an irregularity like this for the reason that the proceeding has not increased an otherwise valid assessment, but has imposed an assessment that is wholly invalid. It follows from the views expressed that the present assess- ment must be set aside, and that a new assessment is necessary to enable the city authorities to collect the amount which has been advanced by the city to defray the expense of the improvement. Several objections have been urged against the power to impose any assessment for the expense of the improvement in question. As these objections have been fully argued on both sides, and as they involve the validity of a new assess- ment, it is proper to determine the questions raised by them. First, it is urged that the authority to make the assessment having been conferred only by a section of the statute which refers to another statute, it is not valid because section 13 of article 7 of the Constitution provides that " every law which imposes, continues or revives a tax, shall distinctly state the tax and the object to which it shall be applied, and it shall not be sufficient to refer to any other law to fix such tax or object." The answer to this is that this is not a tax in the sense in which that word is used in the section of the Consti- tution cited, but is a local assessment. A tax and a local assessment are not in legal contemplation the same thing, although both emanate from the same source, namely, the sovereign power of taxation. The distinction has been frequently recognized in the interpretation of stat- utes. The principle which governs courts in the interpreta- tion of Constitutions and legislative acts is the same. The cardinal object in each ease is to ascertain the intention of the authors of the instrument. When the language is plain and unambiguous, it needs no interpretation. But when words are used which have both a technical and a popular significa- tion, it often becomes necessary to determine which significa- 96 CASES IN THE SUPREME COURT [1872. In the Matter of the Petition of Nathaniel Ford. tion was intended. Thus, In the Matter of the Mayor ^ etc., of New York for improving Nassau street (11 J. R., 77), sev- eral churches were included within a street assessment, and they claimed to be exempt from its operation by the 28th section of the act of 1813 for the assessment of taxes. This section enacted that " no real estate belonging to any church shall be taxed by any law of this State." The court held that all the provisions of the act, including the exemption, referred to public and general taxes to be assessed and collected for the benefit of the town, county or State at large. They say the word " taxes" means burdens, charges or impositions put or set upon persons or property for public uses, and this is the definition which Lord COKE gives to the word talliage (2 Just., 532), and Lord HOLT in Carth., 438, gives the same definition, in substance, of the word " tax." The legislature intended by that exemption to relieve religious and literary institutions from these public burdens. But to pay for the opening of a street in a ratio to the benefit or advantage derived from it is no burden. Again, in Sharp v. Speir, before cited, the construction of the seventh section of the village charter of Brooklyn was under consideration. This section provided that " whenever any tax of any description on lands, &c., in the same village shall remain unpaid," then, after having taken certain pro- ceedings which the section provided, power was given to cause s'uch lands to be sold. The court, BRONSON, J., deliver- ing the opinion, observe that " the first remark upon this section is, that it only authorizes the sale of lands for the payment of a tax, and, although it extends to a tax of any description," still it includes nothing but a tax of some kind. Our laws have made a plain distinction between taxes which are burdens or charges imposed upon persons or property to raise money for public purposes, and assessments for city and village improvement^, which are not regarded as burdens, but as an equivalent or compensation for the enhanced value which the property of the persons assessed has derived from the improvement. Many other cases to the same effect might 1872.] OF THE STATE OF NEW YORK. 97 In the Matter of the Petition of Nathaniel Ford. be cited, but these are sufficient to illustrate the distinction to which I have adverted. The Constitution itself contains a plain recognition of the same distinction, for, by section nine, of article eight, the legislature is required to restrict the power of taxation, assessment, &c., of municipal cor- porations, so as to prevent abuses in assessments. I am not aware of any binding adjudication directly upon this ques- tion. The case of llanlon v. Supervisors, 786 81 Total $154,784 81 They also in the assessment roll stated the capi- tal paid in and secured to be paid in at .... $70? 000 00 And deducted amount paid out for real estate, 40 > 213 19 Leaving personal estate or stock $29)786 81 The return to the writ shows that at the time the defend- ants met to hear the parties aggrieved, and to correct the assessment roll, the relator appeared before them and pre- sented affidavits which showed, 1st. That the real estate belonging to them was worth not to exceed $45,000, but cost $40,213.19. And 2d. That the capital stock of the company was worth but eighty per cent of its nominal amount, and claimed to have the assessment against the relator reduced accordingly ; and further, that in case no reduction in the assessment of the real estate was made, the assessment for personal property should be entirely stricken from the roll, inasmuch as the assessed value of the real estate would, in such case, exceed the actual value of the capital stock of the company as fixed and ascertained by the assessors. The return also states that although Lewis E. Smith, the treasurer of the relator, swore before said assessors that the stock of said Linen Thread Company had been worth only eighty per cent of its par value since February 16, 1871, yet we, the said assessors, from our knowledge of said company and its property and affairs, and from the fact of its having on the lirst day of January, 1871, declared a dividend of 1871.] OF THE STATE OF NEW YORK. 107 People ex rel. Am. Linen Thread Co. . Assessors of Vil. of Mechanicville. ten per cent upon its stock, and from the fact that one of them having been repeatedly informed since February 16, 1871, and before June 8, 1871, by different stockholders of said company and from the said Howland (one of the assessors) having heard the said Lewis E. Smith since the month of Feb- ruary, 1871, and repeatedly prior to that time, and during the past year, and other stockholders of said company say, that the stock of said company was worth at least par, or one dollar for each dollar of its capital stock, and from the affidavits then and there before them, annexed and made by the persons hereafter mentioned, did not believe or credit the sworn statement of Lewis E. Smith, as to the value ot said stock.' That on said 8th day of June, 1871, the said assessors, had before them, and in their possession, the annexed affidavits of several persons who were named, who severally swore to the value of the real and personal property of the said company, and that they had said affidavits before them then, and in their possession before and at the time they passed upon and decided the application of said company for a reduction of its assessment. It also appeared that the attention of the relator or his counsel was not called to these affidavits, nor called to the fact that they were then present for use or used upon the hearing before the assessors on the application for a reduction of the amount of the assessment. These affidavits showed the real estate to be worth $125,000, and had been used, upon a motion made by the relator, against the defendants for a mandamus. The defend- ants refused to reduce or alter the assessment roll upon the application of the relator, and this writ of certiorari was issued. A. Pond, for the relator. C. A. Waldron, for the defendants. Present MILLER, P. J. ; PABKEB and DANIELS, JJ. 108 CASES IN THE SUPREME COURT [Nov., People ex rel. Am. Linen Thread Co. v. Assessors of Vil. of Mechanicville. MILLER, P. J. The assessment made by the assessors was, in form, I think, in accordance with the decision of the Court of Appeals in case of The People v. The Board of Assessors of Brooklyn (39 N. Y., 81). That case holds that, as against corporations, the rule of taxation is correct when based upon the amount of capital paid in, or secured to be paid in, after deducting the amount of such capital actually paid out for real estate, assessing the remaining capital at its actual value, and leaving the real estate to be assessed the same as other real estate of individuals in the town or ward where situated, at its actual value, whether more or less than the price paid. There is no injustice in such a course, as it would enable the assessors to add to the value of the real estate such an amount as was authorized by the facts. If the real estate has increased in value beyond its first cost, there is no good reason why the increase should not be added. Such an addition does not make a double taxation, but merely compels the corporation assessed to pay taxes for the full value of its property at the time. It does not prevent the application of the rule established in 39 ISl. Y., 81, because in that case the corporation owned a large amount of real estate located outside of the territorial limits of the assessors, and beyond their jurisdiction, and there is no such distinction between the two cases as would authorize a disregard of the doctrine laid down in the case cited. It is insisted that the assessors erred in refusing to strike out the assessment for personal property, and to reduce the assessment of the real estate, which the evidence before them upon the hearing showed did not exceed $45,000 in value. According to the provisions of the statute (S. L. 1851, chap. IT, 6, as amended by S. L. of 1857, chap. 53, 8), whenever any person shall apply to the assessors to reduce the value of his real and personal estate, as set down in the assessment roll, it is made the duty of the assessors to examine such per- 1871.] OF THE STATE OF NEW YORK. 109 People ex rel. Am. Linen Thread Co. v. Assessors of Vil. of Mechanicville. son, under oath, &c. ; and, after such examination, " they shall fix the value thereof at such sum as they shall deem just." This statute has been the subject of judicial interpretation in the courts of this State. In The People v. Reddy (43 Barb., 544) the applicant before the assessors testified that he had not the personal property for which he was assessed ; and the court held that the assessors were bound to take his statement on that subject. In reference to the statute the court say : " This provision does not give the assessors any right to fix such value arbitrarily or capriciously. They act judicially in fixing such value, and are called upon to pass upon the evidence adduced before them ; and when they have no ground in such evidence to fix a valuation different from that sworn to by the person applying for such reduction, they are bound, I think, to follow his statement under oath, as much as the assessors were formerly required to fix such value at the sum specified in the affidavit required in such cases," &c. It is also said, after stating that the object of the amendment was, to allow assessors to make an oral examination of the applicant, as the assessors may think proper, " But the assessors must act upon the evidence before them, like all other officers acting in a judicial capacity, and fix the valuation at just such a sum as will be warranted by the evidence" In Tlie People v. Fwguson (38 K Y., 92) the chief judge, in discussing the subject of the duties of assessors in making corrections, says : " It was the duty of the assessors to act upon the evidence before them, and to adjudge how much the actual value of the stock was reduced by these contingent liabilities, and to deduct from the assessment accordingly. The evidence, as presented, showed that the reduction would more than equal the surplus as found by the assessors ; and there was nothing in contradiction or disparagement of the evidence. Their action is judicial, and to be governed by the evidence before them." As the assessors act judicially, they have the power to administer oaths and to hear testi- mony j and it is their duty to weigh the effect of the evi 110 CASES IN THE SUPREME COURT [Nov., People ex rel. Am. Linen Thread Co. . Assessors of Vil. of Mechanicville. dence, to judge as to its credibility, compare it with the law, and decide the question which is to be determined. (Barhyte v. Shepherd, 35 N. Y., 251.) Nor are the assessors con- cluded by the statement alone of the applicant ; and they may, in the exercise of their general powers, make further inquiries. (People v. Fredericks, 48 Barb., 173 ; People v. Halsey, 36 How., 48T, 502, 503.) From the authorities cited, it may be considered as an established principle that when the evidence is uncontra- dicted and the facts clear, beyond dispute, the assessors are bound to act in accordance with, and must be governed by, the evidence presented to them ; and when there is a positive affidavit of the applicant, and direct proof, there should be considerable hesitation in disregarding such evidence. If the person willfully swears falsely on such examination before the assessors, he is deemed guilty of w r illful and corrupt perjury, under the provisions of the section before cited. In assessing the value of the stock at par, the assessors based their determination upon the ground that, from information received from other parties as well as the affidavits before them, they did not believe the statement of the treasurer of the company. So far as relates to the information received from others, I am inclined to think that it was a proper sub- ject for consideration, and might be regarded as a part of the subject-matter to be considered ; and, therefore, upon this ground the action of the assessors in assessing the personal property can be sustained. A question is raised by the relators' counsel as to the right of the assessors to act upon the ex parte affidavits, and it is insisted that they committed an error in assuming to do so, and in using them in the absence of and without the know- ledge of the relators. As it does not appear from the return that the assessors did not believe the sworn statements made in the affidavits of the applicant as to the value of the real estate, the assessment of the same at the value fixed must depend entirely upon all the affidavits which actually were used and taken into con 1871.] OF THE STATE OF NEW YORK. HI People ex rel. Am. Linen Thread Co. v. Assessors of Vil. of Mechanicville. sideration in arriving at a conclusion as to the amount for which the real estate should be and actually was assessed. The return states that the assessors had before them and in their possession at the time of the hearing and at the time they passed upon the application these exparte affidavits, but the attention of the relators was not called to the fact that they were then present for use, or that they were or would be used upon the hearing. The affidavits referred to had pre- viously been used upon a special motion in the Supreme Court between the same parties ; and although they may have been in possession of the assessors at the time, it nowhere appears in the return for what purpose they held them, or that they actually were used by the assessors at all, or that the facts stated in them were considered, in any way, in making up their final determination and in disposing of the application. It does not distinctly appear from the return that the assessors held or regarded these affidavits as a portion of the evidence in deciding the case. There are no distinct rules of practice especially established for the hearing of applications of this character, but it is quite obvious that it would have been but fair and eminently proper that the applicant should have been advised that these affidavits were a portion of the evidence, and would be considered, if such was the intention of the assessors. They were acting as judicial officers, and the party claiming to be aggrieved had a right to know, at least, what written evidence was then before them and to be used against the applicant. Whether there was legal error in having these affidavits in the assessors' possession without the knowledge of or notice to the applicant is not important, for they were not used, if the return is to control. And without passing upon the question whether the assessors could lawfully regard affidavits which were not openly known to the applicant, I am of the opinion that in the absence of anything in the return showing that these exparte affidavits were actually used as evidence and taken into consideration by the assessors, they cannot now be regarded as a part of the proceedings ; that the affidavits 112 CASES IN THE SUPREME COURT [Nov., Mowers v. Fathers. produced by the relator, were the only evidence before them on the subject of value of the real estate, and as they are uncon tradicted, the value must stand as there fixed. There was no other evidence besides these affidavits, and under the deci- sions they must be considered controlling and conclusive. I think that this was a proper case for a certiorari, and that the proceedings are properly presented to the consideration of this court. As the highest valuation, fixed for the real estate by the imcontradicted evidence is $45,000, the assessors should be directed to correct the assessment by striking out $125,000 assessed for real estate, and inserting $45,000 in the place thereof. DANIELS, J., concurred ; PARKER, J., concurred in the result. Ordered accordingly. PETER MOWERS and JOHN D. EGGNOR v. DANIEL FETIIERS. (GENERAL TERM, THIRD DEPARTMENT, NOVEMBER, 1871.) Plaintiffs, being the owners of a stallion, agreed with defendant, an inn- keeper, that he should be at his inn for a certain number of clays in each week, during a certain season, in charge of one of the plaintiffs. Plain- tiffs were to have the choice of one of two stalls in the wagon-house of the inn for his accommodation. The price of oats and meal? was fixed at a lower rate than customary, but there was no agreement as to the price for lodging, hay or use of stall. Pursuant to this agreement, one of the plaintiffs took the horse to the defendant's inn, and lodged and took his meals there on the days agreed upon, kept the horse in a stall provided, under his own lock and key, and took care of him, fed and groomed him, and the wagon, harness, &c., of plaintiffs were kept in the wagon-house. Held, that the relation of innkeeper and guest existed between plaintiffs and defendant, and that the defendant was, therefore, liable to plaintiffs for loss, by accidental fire in the wagon-house, of the horse, wagon and other property of plaintiffs, while there in pursuance of such agreement. Watftburn v. Jones (14 Barb., 193), approved and followed. 1871.] OF THE STATE OF NEW YORK. 113 Mowers t>. Fathers. EXCEPTIONS ordered to be first heard at General Term. The action was brought to recover damages against the defendant as an innkeeper for the loss of a stallion, &c., while one of" the plaintiffs was stopping at the defendant's inn in the town of Sharon, Schoharie county. The cause was tried at the Schoharie Circuit in April, 1868, before the Hon. CHARLES R. INGALLS and a jury. The facts, so far as mate- rial, are stated in the opinion. The court ruled and decided that the plaintiffs were enti- tled to recover as a matter of a law on the proofs given, and the defendant's counsel excepted. The court also decided that the relation of innkeeper and guest existed between the defendant and the plaintiffs at the time of the loss, and that the plaintiffs were entitled to recover the value of the property, to which rulings exceptions were also taken. The court declined to rule that, under the agreement and facts proved in the case, the plaintiffs could not recover, unless there had been negligence, &c. ; or that the plaintiff was not a guest, but a boarder ; and also declined to submit to the jury the question whether the plaintiff, Eggnor, was at the inn under the peculiar circumstances, &c., claimed by the defend- ant, and to charge that if he was, the relation of innkeeper and guest did not exist ; and to submit the question of negligence, and to charge that if none had been shown, that the plaintiff could not recover ; and to submit any question but that of value. The defendant excepted separately to each of the rulings. The jury found the value of the property lost to be $615, and the defendants' exceptions were ordered to be first heard at the General Term and judgment suspended. J. K Deicey^ for the defendant N. C. Moak, for the plaintiff. Present MILLER, P. J. ; PARKER and DANIELS, JJ. LANSING VOL. VL 15 114 CASES IN THE SUPREME COURT [Nov., Mowers . Fethers. By the Court MILLER, P. J. It appeared upon the trial of this action that, in the spring of 1865, the plaintiffs were the owners of a stallion, which, by an arrangement between them and the defendant, was to be at defendant's hotel, in charge of one of the plaintiffs, for two days in the week during the season, which usually commenced on the first day of May and closed about the fifth day of July. By the agreement between the parties the plaintiffs were to have the choice of the box stalls in the wagon-house adjoining the barn. The price of meals and of the oats were fixed at less than the customary rate of charges, but there was no agree- ment as to the price for lodging, hay or for the use of the stall. The defendant had made no charge for the bedding of the horse or the use of the stall, but it does not distinctly appear that he did not intend to charge for them. The plaintiff Egg- nor took the horse to the defendant's inn ; lodged and took his meals at the inn upon the days agreed upon ; kept the horse in the stall provided, under lock and key of his own ; took care of, fed and groomed him. The harness, bridle, whip and wagon were kept in the wagon-house, sometimes in one place and sometimes in another. About the middle of June, in the night time, the barn and wagon-house were discovered to be in flames, and the fire had made such progress that it could not be subdued. They were destroyed by the fire, together with the horse, wagon and some other articles belonging to the plaintiffs. The rule is well settled that an innkeeper is liable as an insurer of property committed to his custody by a guest, unless the loss be due to the culpable negligence or fraud of the guest, or to the act of God or the public enemy, and that he is liable for the horses of his guest when accidentally burned. (Hulet v. Swift, 33 N. Y., 571.) The question to be determined in this case is, whether the plaintiff Eggnor, at the time the horse and other property were destroyed, was at the defendant's inn as a guest. I am inclined to think that Eggnor was a guest, and that the facts and circumstances do not show that he was merely a boarder, 1871.] OF THE STATE OF NEW YORK. 115 Mowers t>. Fethers. and thus the defendant was exonerated from responsibility. Some of the authorities hold that where there is a stipulated contract as to time, price, &c., the party is a boarder, but when he is at the inn without any bargain he is a guest. (1 Par. on Con., 628 ; Thompson v. Lacy, 3 Barn. & Aid., 283 ; Parkharst v. Foster, 1 Salk., 387 ; Dausey v. Rich, 2 Ellis & Bl., 144; King v. Ives, 7 C. & P., 213; Winter- mute v. Clark, 5 Sandf., 247 ; Cromwell v. Stevens, 3 Abb., N. S., 34 ; Stewart v. McReady, 24 How., 62 ; Bennett v. Ditson, 5 Term, 273 ; Manning v. Wells, 9 Thomp., 746.) A careful examination of the cases cited evinces that the con- tract was entire, covering the whole case ; while, in the case at bar, the agreement only embraced a portion of the accom- modations to be furnished by the defendant, and which the plaintiff, Eggnor, actually had. The meals and the oats only were provided for, while the rest remained to be determined upon a mere question of value. It was not enough that the price for the meals and the oats was agreed upon, for fixing a price per day for a sojourner at an inn does not make him a boarder, or anything but a guest. (Pinkerton v. Wood- ward, 33 Cal., 557; Berkshire Woolen Co. v. Proctor, 1 Cush., 417 ; Norcross v. Norcross, 53 Maine, 169 ; Parker v. Flint, 12 Mod., 255.) Nor does the fact that Eggnor, one of the plaintiffs, was to take care of the horse make him any the less a guest. In Seymour v. Cook (53 Barb., 451 ; 35 How., 180), the guest led the horses out of the stable, when one of them was kicked and injured, aud it was held that the innkeeper was liable. The same principle has been applied to actions brought against common carriers for the loss of or injury to property. (Mai- lory v. Tioga JR. R. Co., 39 Barb., 488 ; Mudgett v. Bay State, 1 Daly, 151 ; Cayle v. Case, 8 Coke, 32, 33 a.) Nor is it important how often Eggnor came there, or whether he came regularly. (Bac. Ab., tit Ins. Co., 5.) The length of time is not material. (5 Tenn., 273 ; 5 Barb., 563 ; Allen v. Smith, 12 C. B. [N. S.], 104; Eng. C. L., 630; Watting v. Potter, 9 Am. L. Keg. [N. S.], 618.) The pur- 116 CASES IN THE SUPREME COURT [Nov., The National Bank of Cheniung v. The City of Elmira. pose for which the horse was used is also of no consequence. (33 Oal., supra, 602 ; 7 Gush., supra, 423.) The case at bar is similar, in most of its leading features, to that of Washlurn v. Jones (14 Barb., 193), where it was held that the innkeeper was liable for an injury to a horse. It is true no price was agreed upon for the meals or the oata, but as we have seen, according to the authorities, this makes no difference ; I think the case last cited is decisive of the one now considered, and directly in point. I am also of the opinion that there is no question that an innkeeper is liable for the loss of this kind of property belong- ing to a guest, as is held in some of the cases already cited ; and it does not change the defendant's liability because Egg- nor furnished his own lock and key while there, any mores than it would if the guest had the key of his own room, or a passenger on a steamboat the key of his own state room. There is no question as to the admission or rejection of evidence in the case which requires examination. The judge was clearly right in the various rulings made at the close of the evidence, and in submitting the question of damages to the jury. A new trial is denied, and judgment must be ordered for the plaintiff on the verdict, with costs. THE NATIONAL BANK OF CHEMUNG, Respondent, v. THE CITY OF ELMIKA, Appellant. (GENERAL TERM, THIRD DEPARTMENT, NOVEMBER, 1871.) To render an assessment roll illegal by reason of defects in the affidavit of the assessors annexed thereto, the defects must be of substance and not of form merely. The omission of words not essential to the substance of the affidavit prescribed by statute is not a fatal defect. Nor is it a fatal defect if the affidavits have no venue. Nor if the affidavit was sworn to before an officer different from the one prescribed by the statute, but duly authorized to administer oaths. Assessors having jurisdiction, their action cannot be attacked collaterally. 1871.] OF THE STATE OF NEW YORK. 117 The National Bank of Chemung v. The City of Elmira, Tins action is brought by the plaintiff, a banking associa- tion, against the defendant for the recovery of $4,006.80 with interest, for money had and received by it as claimed, or for a tort, by reason of the alleged wrongful taking thereof by the collector of taxes for the city of Elmira, in April, 1869, and the alleged payment thereof by him to the treasurer of said city, and the refusal of the city to pay back the same to the plaintiff upon a demand being made therefor of the mayor of the city. The defence made thereto by the defendant, in its answer, consists in a justification of the taking and receipt of said money by said collector and treasurer under an assessment and warrant issued for the collection of taxes. It is conceded in the case, and found as fact by the referee in his report, that the assessors of said city, in the year 1868, made an assessment of the real and personal estate therein, and assessed the plaintiffs upon their real estate at the valua- tion of $5,000, and upon their personal at the valuation ol $95,000. That the personal property so assessed was so much of the capital stock of the bank, which was invested in United States government bonds. That such assessors made their assessment roll, which was duly delivered and filed as required by law, showing the assessment aforesaid against said plaintiff, and made an affida- vit thereto, which was as follows : " We, the undersigned, do severally depose and swear that we have set down in the foregoing assessment roll all the real estate situate in the city of Elmira, according to our best information ; and that with the exception of those cases in which the value of said real estate, at the same sums which a majority of the assessors have decided to be the full and true value thereof, and at which they would appraise the same in payment of a just debt due from a solvent debtor; and also that the said assessment roll contains a true statement of the aggregate amount of personal estate of each and every person now in such roll, over and above the amounts of the debts due 118 CASES IN THE SUPREME COURT [Nov., The National Bank of Chemung v. The City of Ehairu. from such person respectively and exclusively, such stocks as are otherwise taxable, and such other property as is exempt by law from taxation at the full value thereof, according to our best judgment and belief. SQUIRE NEWTON, 1 As8essors G. H. POST, \ Assessors. Sworn and subscribed before me, this ) 9th day of September, A. D. 1868, f C. H. BAKEK, Deputy clerk Chemung county" That the common council duly assessed, imposed and levied a general tax upon said property, so as aforesaid assessed, in the year 1868, for the purposes of said city, amounting to $84,457.50, and the taxes appearing on said roll, upon the valuation therein, against said plaintiff were $2,080. That a certified copy of said assessment roll, with the war- rant of said city annexed, for the collection of said taxes, was duly delivered to the collector of the city. That said plaintiff did not appear before said assessors, to review said assessment, or make any objections to the same, the notice for that purpose having been duly given and published. That the warrant so issued by the city to said collector only required him to collect from said plaintiff and pay over to said treasurer said sum of $2,080, including his fees thereon, and that he received no other or different instructions from said city, for the collection of said taxes, than are con- tained in said warrant. On the second day of April, 1869, said warrant having been duly renewed, and in full force and effect, and said col- lector then being the collector of taxes for county and State purposes, as well as for said city, and then having a warrant in his hands for the collection of the taxes, from the board of supervisors of Chemung county, duly levied upon and sold by virtue of both of said warrants, a quantity of bank bills and treasury notes of said plaintiff, amounting in value to 1871.] OF THE STATE OF NEW YORK. 119 The National Bank of Chemung . The City of Elmira. the sum of $4,006.80, of which sum he paid over to the treasurer of said city, for the use thereof, under his said city warrant, the sum of $2,080, and the balance thereof he paid over to the treasurer of the county, under his said county warrant. The president of the bank forbade the taking and sale of the bills, and said sum of $4,006.80 was thereafter demanded of the city and it refused to pay the same to plaintiff. As conclusions of law upon these facts, the referee finds : That the assessors had jurisdiction of the question whether said plaintiff was taxable within the city, and liable to be assessed therein for their property so assessed and valued, and whether said property was liable to taxation thereon. And that said assessors, in holding said plaintiff so liable to be assessed for said property, and that said property was liable to taxation, acted judicially, and their decision cannot be reviewed or called in question in this action. That the affidavit made by the assessors, written upon the assessment roll, was not such an affidavit or oath as is required by the statute, and was not sufficient in law to give the defendant jurisdiction to issue the warrant for the collec- tion of said taxes, and that by the issuing of said warrant, and the proceedings thereupon had, said defendant was guilty of a wrongful taking of said bank bills, and that by reason thereof the plaintiff is entitled to recover of the defendant the value of the whole of said bank bills and treasury notes, to wit, $4,006.80, witli interest, and that judgment should be entered accordingly. To which several findings the defendant duly made and filed exceptions. The defendant, on the trial, offered in evidence a new or supplemental affidavit of said assessors, to said assessment, in due form, and made before the proper officer, of date May 2d, 1870, which was objected to by plaintiff, and the referee refused to receive the same, to which refusal the defendant excepted. Judgment was entered on said report, and in accordance 120 CASES IN THE SUPREME COURT [Nov., The National Bank of Chemung v. The City of Elmira, therewith, October 27, 1870, for $4,570.60, from which the defendant appeals. S. B. Tomlinson, for the appellant and defendant. E. H. Benn, for the respondent and plaintiff. \ Present MILLER, P. J. ; PARKER and DANIELS, JJ. By the Court MILLER, P. J. The right of the plaintiff to recover in this action was placed by the referee npon the ground that the affidavit or instrument written upon the assessment roll was not such an affidavit or oath as was required by the statute, and was not sufficient to give jurisdiction to issue the warrant. There are several omissions in the affidavit annexed, which are supposed to be fatal to the validity of the warrant under which the plaintiff's property was seized. The statute (see Laws 1851, p. 334, 8) prescribes the form of the affidavit to be made and subscribed by the assessors, and provides that they shall depose and swear that they have set down all the real estate according to their best information, " and that, with the exception of those cases in which the value of the said real estate (has been changed by reason of proof produced before us, we have estimated the value of the said real estate) at the sums which a majority of the assessors have decided to be the full and true value thereof," &c. * * * "And, also, that the said assessment roll contains a true statement of the aggregate amount of (the taxable) personal estate of each and every person (named) in such roll," * * "at the full (and true) value thereof, accord- ing to our best information and belief." The words omitted in the affidavit to the assessment roll are contained in brackets, and the main question to be deter- mined is, how far their omission affects the validity of the warrant. The omission, in order to affect the legality of the assess- ment roll, must be one of substance and not of form merely. 1871.] OF THE STATE OF NEW YORK. 121 The National Bank of Chemung . The City of Elmira. In Van Rensselaer v. Whitbeck (7 N. Y., 517), it was held that when a statute prescribes the form of a certificate to be signed by the assessors and attached to their assessment roll, a substantial compliance with its terms is necessary to give jurisdiction to the board of supervisors to impose a tax and issue their warrant to the collector thereon. In the case cited, the statute was entirely disregarded, and the assessors certified that they had set down the real estate at the sums which a majority of the assessors "have decided to be proper," and that the assessment roll contained a true state- ment of the aggregate amount of the taxable personal estate, &c., " according to the usual way of assessing." The assessors entirely d-sregarded the law in force at that time (1 R. S., 394, 27), which required that they should certify that they had estimated the real estate at the sums which they had decided to be " the true value thereof," and the personal estate according to their " information and belief." In Parish v. Golden (35 N. Y., 467) it was held that the omission of the assessors to specify or make an affidavit as to some particulars required of them in relation to the assess- ment was not a jnrisdictional defect. In the last case cited, the words omitted were "and such other property as is exempt by law from taxation," and they were held to be immaterial. The learned judge who wrote the opinion, after discussing the question whether the omission was material, says : " But if it is a material statement, the omission of it ought not to be regarded as fatal to the assessment roll. Its omission is not evidence that the assessors have not performed their duty in making the valuations." * * * "And I am of the opinion that the duty of verifying the assessment is to be regarded as directory, rather than jurisdictional." If the statute is merely directory, as here laid down, then, of course, the omissions are of no importance whatever they may be. With the authority of Van Rensselaer v. Whitbeck, still existing, I am not prepared to hold that a material omis- sion in the affidavit which affects the substance is not a juris- dictional defect. The question then arises whether the LANSING VOL. VI. 16 122 CASES IX THE SUPREME COURT [Nor The National Bank of Chemung v. The City of Elmira. omissions referred to are material. The first omission, I think, is not important, as, without the words left out, it would appear that the assessors had set down the real estate at sums which a majority of the assessors "have decided to be the full and true value thereof." This is equivalent to saying that they have " estimated the value of the real estate." The omission of the words relating to changes made " by reason of proof," &c., renders the sentence imperfect, but is entirely clerical. It is difficult to see how any taxpayer can be injuriously affected by leaving out these words and placing a reasonable interpretation upon the language employed, and having the statute in view, it is fairly to be inferred what actually was intended. It may be the case that the value of no real estate was changed by proof, and then these words might properly be omitted. None of the other defects are of any consequence except the words, " the taxable," as they do not add to or in any way change the meaning or import of the affidavit. As to these last-named words, a question arises which is not entirely free from embarrassment. At first view their omission appears to make the affidavit read so as to include all property, whether taxable or other- wise, thus embracing government securities and other per- sonal property, which the law exempts from taxation, in direct violation of the statute. But I am inclined to think that the clause, which is as follows, " and exclusively of (which indirectly means excluding) such stocks as are oth- erwise taxable, and such other property as is exempt by law from taxation," virtually and in fact saves the omission, and renders the meaning perfect and complete. It thus reads that the roll contains a statement of all personal property, except such as is exempt, which, I think, must be interpreted as including all " taxable " personal property. If this con- struction is correct, then there was no substantial defect in the affidavit, and the statute was complied with in all essential particulars. I think, also, that the want of a venue to the affidavit ia not material. The necessity of a venue is more strictly 1871.] OF THE STATE OF NEW YORK. 123 The National Bank of Chemung t. The City of Elmira. applicable to affidavits in judicial proceedings, and not to mere oaths like the one annexed to the assessment roll in this case. The authorities cited by the plaintiff, therefore, have no appli- cation. It is to be assumed that the assessment roll had a proper statement at the beginning; that it was a list of the taxable inhabitants of the city and county where it was made up. This was sufficient if a venue was necessary. Besides, the omission, at most, was a mere irregularity, which is not jurisdictional, and could be the subject of review upon certio- rari only. In The People ex rel. Beadle et al. v. The Assessors of Elmira, it was held to be a mere irregularity. (See MSS. opinion.) Nor do I think that it is a fatal defect, because the affidavit was sworn to before the deputy clerk of Chemung county. The statute which provides that the assessors shall appear before one of the justices of the peace of the town or city, and make and subscribe the oath (S. L. of 1851, chap. 176, 8), does not prohibit the affidavit being taken before some other competent officer. I do not think the statute is peremptory and absolutely requires the oath to be taken before the officers named, but simply directory. In The People v. The Supervisors of Ulster (34 N. Y., 272), it is said : " Where the statute directs an act to be done in a certain way, or at a certain time, and a strict com- pliance as to time and form does not appear to the judicial mind to be essential, the proceedings are held valid, although the command of the statute has been disregarded. The statute is then said to be directory." This court has also decided, in Beadle v. The Assessors (supra) that, although the statute specified that the oath should be made before a justice of the peace, yet it might be made before the city clerk, who had the same power to administer oaths as justices. It is insisted by the plaintiff's counsel that the assessment of the capital stock of the bank was illegal, unauthorized and void under the act of 1866 (chap. 761), which provides that "no tax shall hereafter be assessed upon the capital of any bank or banking association organized under the autho 124 CASES IN THE SUPREME COURT [Nov., 1871.] The National Bank of Chemung v. The City of Elmira. rity of this State or of the United States." The referee, upon the trial, held that the assessors had jurisdiction of the ques- tion whether the plaintiff was liable to be assessed, and whether the property was liable to taxation within said city, and that they acted judicially, and their decision cannot be reviewed or called in question in this action. The referee was clearly right in this view of the subject. In The Genesee Vol. Nat. Bank v. The Board of Supervisors of Livingston County (53 Barb., 223), an action was brought to recover money paid for taxes, and it was held that the assessors having jurisdiction of the bank and of the subject- matter, that in assessing the plaintiff to the full amount of its capital they acted within their jurisdiction ; and if they erred, the error was a judicial one, which could be reviewed upon certiorari, but clearly could not be reviewed in a collateral preceding. This case is directly in point, and I think con- trolling. The same doctrine has been frequently held in the courts of this State. (See Chegary v. Jenkins, 5 N. Y., 376 ; Barhyte v. Shepherd, 35 K Y., 238 ; Swift v. The City of Pouglikeepsie, 37 id., 511 ; Bank of Commonwealth v.' Mayor of N. Y., 43 id., 184.) The statute relied upon was intended to add another to the class of exemptions already existing and within the jurisdic- tion of the assessors to determine. (See 37 N. Y., 513.) The assessors having jurisdiction and having acted judicially, the assessment imports absolute verity, and the remedy of the plaintiff was to bring a certiorari to correct the errors com- plained of, and not by action against the defendant to recover back the taxes actually paid. The referee was clearly wrong, and the judgment appealed from must be reversed; and as a new trial cannot change the case, I think judgment should be ordered in favor of the defendant, with costs. 1872.] OF THE STATE OF NEW YORK. 125 Porter i. Knapp. OLIVER PORTER, Respondent, v. NATHAN KNAPP, Appellant. (GENERAL TERM, THIRD DEPARTMENT, MARCH, 1872.) It is admissible, as a defence to an action on a note, to show that it wan given for the loan of moneys obtained on a sale of stolen government bonds. Proof of this defence casts upon the holder the onus of showing himself a bonaflde owner. APPEAL from judgment entered on verdict in favor of the plaintiff. The case was tried at the Cortland County Circuit in April, 1870, before one of the justices of this court and a jury. The action was brought upon a promissory note dated Sep- tember 27, 1869, made by the defendant for the sum of $150, payable to William E. Warner or bearer on the first day of April, 1870, with interest. It was claimed that the note had never been transferred to the plaintiff by Warner, but belonged to one Elizabeth S. Newton. The defendant also interposed as a defence that the note had been given for money which was received as part of the proceeds of bonds to the amount of $14,000, which were stolen from Elizabeth S. Newton, and offered to prove the defence as set up in one of the answers and particularly stated in the opinion, which offer was rejected by the court and an excep- tion taken to the ruling. Some other exceptions were taken, but they are not material to the disposition of the case. The case was submitted to the jury upon the single ques- tion whether the note was transferred to the plaintiff for a sufficient consideration. Upon this question there was con- siderable conflicting evidence. The jury found in favor of the plaintiff for the amount of the note and interest. A bill of exceptions was made and settled, judgment entered upon the verdict, and the defendant appealed. 126 CASES IN THE SUPREME COURT [March, Porter v. Knapp. M. M. Waters, for the appellant. C. Porter, for the respondent. Present MILLER, P. J. ; POTTER and BALCOM, JJ. By the Court MILLER, P. J. This action was brought tc recover the amount of a promissory note which the plaintiff claimed to hold as a bona fide holder, which the testimony shows was transferred to the plaintiff for services as an attor ney in the defence of William E. Warner, who was at the time of the transfer charged with, and subsequently indicted for, a criminal offence. The services were performed mainly, if not entirely, after the transfer of the note, which was made on the 20th of January, 1870. Upon the trial of the action, after the plaintiff had rested, the defendant offered to prove the facts set forth in the fourth division of his answer, which avers that Elizabeth S. Newton was the owner and holder of United States bonds of great value ; that the same were stolen from her and sold ; that a portion of the avails of said bonds so sold came to the posses- sion of the payee of said note, William E. Warner, and that the note was given for a portion of said money loaned by the payee in said note to the defendant; that the payee fraudulently concealed the fact from the defendant that the moneys so loaned were the avails of said stolen bonds, and fraudulently induced the defendant to believe that the money belonged to the payee ; and relying upon this, he was induced to give the note in question ; that after the making of the note in suit, the defendant was notified by Elizabeth S. New- ton of the facts aforesaid, and forbidden to pay the same to the said Warner; and that the said Elizabeth S. Newton, also, before the commencement of this action, commenced an action in the Supreme Court against the plaintiff in this action and others ; and in that action obtained an injunction, forbidding the plaintiff in this action from collecting, selling or trans- ferring the note sued on in this action, and notified the 1872.] OF THE STATE OF NEW YORK. 127 Porter t>. Enapp. defendant of the ownership of the note and of the proceed- ings in the action. As the case stood at the close of the plaintiff's testimony, the evidence showed prima facie that he was a bona fide holder of the note in question, and as snch entitled to recover. I think the proof that the money for which the note was given was stolen, would cast upon the plaintiff the burden of establishing that he actually was a bona fide holder, inde- pendently of the presumption arising from the fact that he had the note in his possession. In The First National Bank of Cortland v. Green (43 N". Y., 298), it was held that a party suing upon a negotiable note purchased before maturity, is presumed, in the first instance, to be a bona fide holder. But where the maker has ehown that this note was obtained from him under duress, or that he was defrauded of it, the plaintiff will then be required to show nnder what circumstances and for what value he became the holder. The reason for this rule is said to be that, " where there is fraud the presumption is that he who is guilty will part with the note for the purpose of enabling some third party to recover upon it ; and such presumption operates against the holder, and it devolves upon him to show that he gave value for it." Now, applying this principle to the case at bar, it would appear, upon the proof of fraud being given, that the plaintiff held a note which had been given for the avails of stolen pro- perty, without any evidence as to the manner in which it came into his hands, or that he paid value for it ; and under such circumstances 1 think he would be called upon to show how he came into the possession of the note. It seems to me it would be, at least, a reasonable ground for a presumption that he had paid no value, inasmuch as it was given for pro- perty feloniously obtained, which we have held in Maston v. Porter * at this term, could be pursued and taken wherever it * Reported ,5 Lansing, 416. Ludlow t>. The Hudson River Railroad Co. might be found, and the avails appropriated by the actual owner. It follows that the court erred in excluding the evidence offered. Other questions are raised by the defendant's counsel, but they were not, I think, sufficiently presented to the court upon the trial, and, therefore, are not available. But this is not important, as for the errors stated, the judgment must be reversed and a new trial granted, with costs to abide the event. Judgment reversed. ELIZABETH LUDLOW, Appellant, v. THE HUDSON BIVEK RAIL- ROAD COMPANY, Respondent. (GENERAL TERM, THIRD DEPARTMENT, MARCH, 1872.) A conveyance of land to a railroad company, " for the uses and purposes of said railroad, and for no other or different purpose," described two parcels ; the description of the second commencing " together with a piece for materials of five hundred and thirty feet in length, &c." A map was annexed to the deed and referred to in the description, on which such second parcei was laid clown and designated "for materials." Held, that these words did not exempt the company from liability to the grantor for damages caused by his negligently digging away a part of such secondly described lot, so as to cause his adjoining land to fall in, and seriously to impair its value. The cause of action for damage did not accrue until the caving away of the land took place, from which the injuries resulted. APPEAL from judgment entered upon dismissal of com- plaint at Columbia County Circuit in October, 1870. The action was brought in March, 1866, to recover damages occasioned to the land of the plaintiff, by reason of its sliding down and caving in, on account of the excavation and removal of earth by the defendant. For a long time prior to the construction of the defend ant's railroad the plaintiff was the owner of a farm of 1872.] OF THE STATE OF NEW YORK. 129 Ludlow 0. The Hudson River Railroad Co. about 190 acres, situated on the east bank of the Hudson river, in the town of Germantown ; and ever since then had owned and occupied it. The portion of the farm lying on the bank of the river extended down a slope to the river, and depended upon the bank and earth on the side and slope of the bank for its natural support. On the 14th of February, 1851, the plaintiff and her hds- band, in consideration of $250, conveyed by deed to the defendant a portion, about two acres, of the farm. The deed covers two parcels, and the description of the second parcel begins as follows : " Together with a piece for materials of 530 feet in length, &c." A map, annexed to the deed, is referred to in the descrip- tion; and upon this map the second parcel is laid down and designated "for materials" In the haoendum clause the use to which the grantees may put the premises conveyed is expressed and limited thus : " For the uses and purposes of said railroad, and for no other or different purpose" In 1851 the defendant entered upon the land excavated, and removed earth from the second piece of land described in the deed, and used the same in building the embankment of its road. The excavation made was to the depth of twenty- five or thirty feet. It was left in that condition until the spring of 1864, when a slide occurred where the excavation had been made, and about three acres and a half of plaintiff's land slid down. There was evidence to show that the value of the land remaining was thereby seriously impaired, and that the effect of excavations of this character in such mate- rial was to render it liable to slide. It was also proved that there was a way to protect the land against slides in such cases. At the close of the plaintiff's testimony the defendants' counsel moved to dismiss the complaint upon the ground : 1st. That the plaintiff and her husband, by a full warranty deed, dated February 14th, 1851, sold and conveyed to the defendants the said lot or parcel of land on which the exca- LANSING VOL. VI. If 130 CASES IN THE SUPREME COURT [March Ludlow v. The Hudson River Railroad Co. vation was made for material ; and that said grant autho- rized the defendants to take the material contained within the lines granted, without in any manner binding the defend- ants to protect the embankment against a slide. 2d. That it is not in evidence that there was any negligence on the part of the defendants, or that the work was not done in a skill- ful and careful manner. 3d. That the action is barred by the statute of limitations, so far as any injury by defendant has application, as it occurred more than six years before the commencement of this action, the right of action only exist- ing at the time that the digging was done. The plain tiff's counsel also claimed the right to go to the jury upon all the questions of fact in the case, and especially upon the question of negligence as one. The court denied the right claimed by plaintiff 's counsel, and refused to submit the question of fact to the jury. To which denial and refusal the plaintiff's counsel then and there duly excepted. The court granted defendants' motion to dismiss the plain- tiff 's complaint. To which decision the plaintiff's counsel then and there duly excepted. A judgment was entered in favor of the defendant, and the plaintiff appealed. J. C. Newikirk, for appellant and plaintiff. Frederick Loomis, for respondent and defendant. Present MILLER, P. J. ; POTTER and BALCOM, JJ. By the Court MILLER, P. J. The deed from the plaintiff and her husband to the defendant, conveyed the land therein described, including a " piece for materials " in fee, and the premises thus conveyed were to be used for the purposes of the railroad, as provided in the habendum clause, with no special provision as to the removal of the soil. As a general rule, each of the owners of adjoining lands 1872.1 OF THE STATE OF NEW YORK. 131 Ludlow . The Hudson River Railroad Co. is entitled to the natural support to his land of the adjoining land, and neither has the right to withdraw this natural sup- port of the soil. If one of the owners excavates and removes the soil, and thereby removes the natural support of his neighbor's land, so that it cannot stand by its coherence, and it subsides and falls, thus disturbing his neighbor in the enjoyment and possession of his property, the law will hold the wrong-doer answerable for such consequences, provided his neighbor has done nothing with his own land contributing to produce the injury, and in hostility to the legitimate and proper exercise of the other's paramount right to improve his own premises. (Farrand v. Marshall, 19 Barb., 380; 21 id., 409 ; see also, Robinson v. IV. Y. & Erie JR. R. Co., 27 Barb., 542, 522, 523; Lasala, v. Holbrook, 4 Paige, 169.) In such cases the defendant is liable for damages, inde- pendently of the question of negligence or unskillfulness. (27 Barb., 523, supra.) Having in view the principle laid down, the defendant is liable unless the deed under which it claims exonerates the defendant from responsibility. The parcel of land upon which the excavation was made was con- veyed by a separate description and " for materials." It was evidently intended that the defendant should use the soil upon it for the purposes of the railroad in the limit of its bounda- ries, but it is not a reasonable construction of its import to claim that it was designed to be used to an extent that would destroy and injure the land of the adjoining owner. If this is a fair intendment, then it would confer a right to excavate and remove the soil within its limits upon a perpendicular line, so as to cause the caving in of the plaintiff's land, to a far greater extent than actually did occur, and perhaps an incalculable amount of injury. Neither party could have intended any such result, and the deed itself does not authorize any act which would necessarily produce it. Even if it be conceded that it was executed for a specific purpose, it clearly was not contemplated that the plaintiff was to be injured by any excavation which the defendant might have occasion tc make without restriction or limitation. The words "foi 132 CASES IN THE SUPREME COURT [March, Ludlow f . The Hudson River Railroad Co. materials " were merely a matter of description, as distinctive from the parcel of land just described, which was for the road bed or track, and conferred no right which relieved the defend- ant from the obligations incurred as the owner of the fee. Had the parties designed that the deed should convey any more than the fee of the premises and confer any unusual or extraordinary rights, it should have contained a covenant to that effect ; and in the absence of any such express provision, the conveyance must be considered as granting merely an estate in fee of the premises, with the restriction provided for and subject to the same rules of construction as any other conveyance of a similar character. Upon no ground, I think, can it be fairly claimed that either party had in contemplation any such contingency as the destruction or' sliding away of the plaintiff's land. This was not one of the consequences necessarily and naturally resulting from the proper use of the land for the purposes indicated, and the circumstances and facts existing do not present a case in any way analogous to Rood v. N. T. & E. R. R. Co. (18 Barb., 80), which is cited by the defendant's counsel, where it was held that when the owner of land conveyed a strip to a railroad company for its track, and received a large consideration, that it might fairly be presumed that, in making such conveyance, the grantor must have contemplated the risk of injury to the remaining lands by fire from engines running on the road. In the case cited, the risk was such as might well be expected, while in the case at bar it would be unusual, extraordinary and impro- bable, with no presumption arising from a large price. Nor has this case any similarity to one where the owner of real estate has effected an advantage to one portion of the land to the burdening of the other, and thus altered the natural quali- ties so as essentially to change the value of the different parts. (Lampman v. Milks, 21 N". Y., 505.) The maxim " Sie utere tuo et alienum non Icedas " is as old as the common law itself, and the defendant had no right to remove the natural support of the soil so as to injure the land of the plaintiff, by virtue 1872.] OF THE STATE OF NEW YORK. 133 Ludlow t>. The Hudson River Railroad Co. of the conveyance of the plaintiff, and was clearly liable for the damages which followed as a consequence of the act. Even if there may be any question as to the liability of the defendant originally, it was clearly liable for performing the work in an unskillful manner, and there was, I think, suffi- cient evidence of negligence to submit that question to the consideration of the jury. There was testimony to establish that the soil was cut down straight to the depth of twenty- five or thirty feet. It was not leveled down, but left by itself in that condition, without any protection whatever to prevent the earth from sliding down. No efforts were made to pro- tect it, as might have been done successfully, and as should have been done in the exercise of proper skill and care, and it was a fair question of fact for the jury whether the defendant was guilty of negligence, even if the plaintiff was not enti- tled to recover independent of this question, upon the ground already discussed. I think that the action was not barred by the statute of limitations. The injury complained of did not accrue until April, 1864, and the action was commenced in March, 1866. The damages did not exist, and had not been incurred when the work was done, or within six years thereafter. If an action had been brought before they had actually been sus- tained, the amount of recovery would have depended upon mere probabilities and the wildest conjecture. The conse- quential injury had not happened until the land of the plain- tiff glided away, and hence no action could be maintained for the damages arising in consequence thereof. The case before us is distinguishable from Argall v. Bryant (1 Sandf., 98). There the breach of the undertaking occurred when the act was done ; while here the act which caused the injury, ulti- mately, was, when it was done, no trespass or any innovation upon the plaintiff's rights, and there was no cause of action until the injury happened. (See p. 104 of same case, and also 3 Camp., 539 ; 16 East, 215.) As the court erred in dismiss- ing the complaint and in refusing to submit the case to the 134 CASES IN THE SUPREME COURT [Marcb, Wilson v. Edwards. jury, the judgment must be reversed,- and a new trial granted'^, with costs to abide the event. BALCOM, J., concurred. POTTEK, J. I concur in the result of this opinion. I think the words in the deed " for materials " had no other effect, or, rather, had no other intent, than to limit the use of the pre- mises, so as to prevent its use for building, or for track or other purpose than obtaining materials-; but amounted to no- release from damages by a careless or negligent use, if the grantor was or should be thereby injured. New trial granted. LUTHEB E. WILSON, ABRAHAM GILLESPIE et al., Appellants, v~ HENKY S. EDWAKDS, Respondent. (GENERAL TERM, THIRD DEPARTMENT, MARCH,, 1872.) Any material change in the terms of a contract upon, which one has become liable as surety releases such surety. Accordingly, lield, that the sureties for faithful performance of a contract to negotiate and make sales of goods on commission, account for sales and pay over proceeds, were not liable for payment of moneys received by their principal for goods consigned to him at an agreed price. THIS case comes up upon exceptions taken at the circuit,, which were ordered to be heard in the first instance at the General Term, judgment being in the meantime suspended. The action was tried at the Schenectady Circuit in Novem- ber,. 1870, before one of the justices of the Supreme Court. The plaintiifs were nonsuited at the trial. The action was brought upon a contract, by which the defendant became surety to the plaintiffs, who were partners in the hay and pro- duce business, for the faithful performance by Daniel Van Yranken of a contract made between him and the plaintiffs. By the contract with Yan Yranken, the plaintiffs employed him as their agent to negotiate and make sales for them of 1872.] OF THE STATE OF NEW YORK. 135 Wilson v. Edwards. hay and other produce. He was to be compensated for his services by a commission of not more than four per cent upon the amount of sales of produce other than hay, and not more than seventy cents per ton for hay ; and Van Yranken agreed to render an account of his sales, and to pay over the amount of sales made by him. The breach alleged was that Van Vranken refused to pay over $1,111.78, which had been received by him as proceeds of hay, sent to him by the plaintiffs under such contract. It is shown by a schedule introduced in the evidence that twenty car loads of hay had been forwarded to Van Vranken at Boston, to be sold by him as their agent, under the afore- said contract, between the 20th of March and the 9th of April, 1870, for all of which he had duly accounted; and that after the 9th of April, thirteen additional car loads of hay, amounting to 83 1415-2000 tons, were sent by the plaintiffs to Van Vranken. The plaintiffs claim to recover of the defendant, under his guaranty, the sum of $1,111.78, as the proceeds of this hay at the rate of $13.50 per ton, after deducting $18.47 for a balance due Van Vranken on a previous accounting. The defendant claims that this hay was sent to Van Vran- ken under a different contract from the one on which he became surety ; that by the first contract Van Vranken was to sell upon commission only, while by the last, under which the liay in question was sent, Van Vranken was to be account- able to them for the hay at the specified price of $13.50 per ton net-, according to their weights, without regard to the amount he might eventually realize for it, he taking the risk of the market. And the defendant claims that by reason of such variance he was not liable under his guaranty for the failure of Van Vranken to pay over the proceeds of this hay. At the close of the testimony defendant's counsel moved for a nonsuit upon the ground that the character of the employ- ment under which the hay was shipped to Van Vrauken was different from that specified in the contract with the surety, and that thereby the surety was discharged, and the court 136 CASES IN THE SUPREME COURT [March, Wilson v. Edwards. granted the motion ; to which ruling the plaintiffs excepted. Plaintiffs also requested the judge to submit certain questions to the jury, which request was refused, and plaintiffs duly excepted. A bill of exceptions was made, which were ordered to be first heard at General Term. Other facts material to the case are stated in the opinion. J. S. Landon, for the plaintiffs. T. W. Jackson, for the defendant. Present MILLER, P. J. ; POTTEB and BALCOM, JJ. By the Court MILLEK, P. J. The action was brought against the defendant as surety of one Daniel Yan Vranken, upon a contract made by the plaintiffs with him, by which he agreed to make sales for them of hay, straw and country produce, for which he was to receive not more than four per cent upon the amount of sales of produce other than hay, and for hay, not more than seventy cents per ton. Van Yranken was also to render an account of the sales made by him, and to pay over the same to the plaintiffs. The justice, in granting the motion for a nonsuit, put his decision upon the ground that the evidence was undisputed that the plaintiffs did make an arrangement with Yan Yranken, by which he was to become responsible for the hay, to recover the value of which the action was brought, at a specific sum, and that this being a variation from the original contract, the plaintiffs were not entitled to maintain the action. In cases of suretyship, the contract cannot be extended. Any material change will exonerate the surety from liability, and if the view taken of the testimony was correct, then the nonsuit was properly granted. The ques- tion involved is not free from embarrassment, and to deter- mine it properly it is essential to examine the testimony given upon the trial. The plaintiff "Wilson testifies that Yan Yranken came into their office and said he could sell to 1872.] OF THE STATE OF NEW YORK. 187 Wilson v. Edwards. parties in Boston, or had made a bargain with parties in Boston, and they would take this hay at $13.50 a ton, and no allowance for weight or wood. Gillespie was then called in, and, after talking the matter over, it was agreed that the hay should go in that way. Gillespie corroborates this version of the matter, and testifies that nothing was said about any commissions. It appears, from this evidence uncontradicted, that it was understood that Yan Yranken was to account to the plaintiffs for the hay at a stated price, and there is no testimony which establishes a different state of facts, as to the price. Wade testifies that, in April, 1870, Gillespie told him that Yan Yranken had bought the hay, and, in answer to a letter written by him, Wade; in which it was stated that Yan Yranken had said he bought the hay of them at $13.50 per ton, plaintiffs wrote " Yan Yranken was here last week and said he would take all the hay, good, bad and indifferent, at $13.50 per ton, our weight, and no deduction for wood." Another witness, Hoyt, testifies that Gillespie stated to him that he had sold the hay to Yan Yranken and he hoped he would do well with it. It also appears that, on the 25th of April, Gillespie went to Boston and obtained from Yan Yranken a statement, which, at Yan Yranken's request, Gillespie made out, of all the hay which the plaintiffs had sent to him, Yan Yranken. In the first part of this statement the hay is entered at the weights and prices for which sold, and Yan Yranken credited for freights paid, and commissions at the rate of seventy cents per ton, while the last, being the thirteen tons in controversy, it is entered at plaintiff's weights at $13.50 per ton, with no credit for commissions or freight. Here, clearly, was a waiver of the commissions and an acknowledgment as to the terms upon which the hay was forwarded to Yan Yranken. By this statement both parties conceded that the hay was to be accounted for at $13.50 a ton, although sold at a higher price, and the plaintiffs did not claim that Yan Yranken should account for the excess of thirty cents a ton over and above the account of commissions which he actually LANSING YOL. YI. 18 138 Wilson v. Edwards. receiyed. Another statement made by Yan Yranken of the amount due, which was accepted by the plaintiffs, shows the amount of Yan Yranken's indebtedness at $1,111.78, and which was claimed of him, is on the basis of $13.50 per ton for the hay in controversy. From the foregoing summary of the leading facts, it is manifest, I think, that there was a material variation of the original contract by which Yan Yranken took the hay at the price agreed upon, and without any regard to com- missions, and I am unable to discover any question of fact which should properly have been presented to the considera- tion of the jury. As to the three car loads of hay first sent, the judge on the trial remarked that, as to them, no separate demand was made. Whether the judge was right in this respect is not mate- rial, for the evidence shows that it was agreed upon that they should go in with the residue of the hay. They were put upon the schedule at the same price, permitted to remain there, and the amount of Yan Yranken's indebtedness calcu- lated at the same price, without any regard to the price for which they were sold, or to the amount paid for freight or commissions, or any deduction for wood or short weights. As the case stood, I think that the nonsuit was properly granted, and no error was committed in refusing to allow the plaintiffs' counsel to go the jury. A judgment must therefore be ordered for the defendant, with costs. Judgment affirmed. 1872.] OF THE STATE OF NEW YORK. Hunt v. Chapin. THOMAS J. HUNT et al., Appellants, v. RICHABD CHAPIN, impleaded with JAMES J. COWEN, Respondents. (GENERAL TERM, THIRD DEPARTMENT, MARCH, 1872.) The rule which authorizes one member of a copartnership to bind the firm by commercial paper, is only applicable to business of a trading or commercial nature, or to the ordinary business of buying or selling for a profit. It has no application to partnerships formed for agricultural purposes or others of a similar character. A note given by an agent for money, which he represents to the payee is to be used in the business of the principal, but which is in fact applied by him to his own use, does not bind the principal unless it appears, either that the agent has express authority to execute the note, or that such authority may be implied from the general scope of the agents' employment, or from some custom of the business in which he is engaged. THE action was brought upon a promissory note, which was as follows : " $2,562.50. YICKSBURG, July 31*2, 1866. " Four months after date we promise to pay to Hunt & Macaulay, or order, twenty-five hundred and sixty-two and j 5 ^ dollars, for value received, with interest at ten per cent per annum from date till paid. (Signed) " COWEN & CHAPIN, Agents: 1 The defendant Cowen did not appear and answer. The case was tried before Justice Bockes, without a jury, in Sara- toga county, in March, 1870. The justice found the facts as follows : 1st. Prior to 1865, there had existed at Yicksburg, Miss., a mercantile firm composed of the defendants, James J. Cowen and James Chapin, the firm name and style of which was Cowen & Chapin, and which firm had become insolvent and had ceased business. 2d. In that year, 1865, said Cowen and Chapin, being desirous again to open the mercantile business at Yicksburg, it was agreed between them and the defendant, Richard Chapin, who resided at Whitehall, New York, that the lattei should furnish goods and capital for such business at Yicks- 140 CASES IN THE SUPREME COURT [March, Hunt v. Chapin. burg, and that said business should be managed and carried on by said James J. Cowen and James Chapin, as agents of said Richard, under the name and style of " Cowen & Chapin, agents," the said James J. Cowen and James Chapin to have each one-third of the profits of such business as compensa- tion for their services in managing and conducting the same ; and the parties proceeded with such business under this man- agement until the death of said James Chapin, which occurred on or about the 16th December of the same year 1865. 3d. Immediately after the decease of said James Chapin, the defendant, Richard Chapin, repaired to Yicksburg, and it was then agreed, between said Richard and said James J. Cowen, that the latter should continue to manage and con- duct the business as Cowen & Chapin had theretofore done, and under the same name or style of " Cowen & Chapin, agents," and that his compensation for his services in man- aging and conducting ike same as agent of said Richard, should be one-half of the profits of such business, and suck business was thereafter continued pursuant to this agreement. 4th. About the same time it was further arranged and agreed, between said Richard, said J. Cowen, and the owner of a plantation in the vicinity of Yicksburg, that said Richard should furnish the capital to stock and work such plantation for a year, with a view of raising cotton for market, the said Cowen to attend to and manage the same, and all matters pertaining thereto as agent, using the said name or style of " Cowen & Chapin, agents," in the conduct and management thereof, and to have one-third of the profits, if any resulting therefrom, as his compensation for such attention and man- agement ; the said Richard and said owner to have the other two-thirds, one-third each, of such profits ; and said planta- tion was stocked and worked under such management, and the said Richard returned to New York in April, 1866, and was not in Vicksburg afterward. 5th. In July, 1866, the plaintiff loaned or advanced to said James J. Cowen the sum of $2,500, and the said Cowen made and gave them the note in suit in this action, dated 1872.] OF THE STATE OF NEW YORK. 141 Hunt v. Chapin. July 31st, 1866, and signed the same " Cowen & Chapin, agents." Such loan or advance was made ostensibly for the purpose of carrying on and working the plantation. The funds, however, were not, nor were any of them, used for that purpose, but the same were used and employed by said James J. Cowen in the payment or settlement and compro- mise of debts contracted by the old firm of " Cowen & Chapin," with which said Richard had no connection, and for which he was in no way responsible. 6th. The said James J. Cowen had no express authority to borrow money to be used in the business aforesaid, or to bind said Richard by or on commercial paper. 7th. Said Cowen paid a portion of the note in suit, but there still remains due to the plaintiffs therein the sum of $1,134.59, at this date. The justice also held, as matter of law, on the facts as stated : That said James J. Cowen had no right or authority to bind the defendant, Richard Chapin, in or by the note in suit ; that the same is not his note, nor is he liable to the plaintiffs thereon, and the complaint should be dismissed as to said defendant, Richard Chapin, with costs. The plaintiffs duly excepted to the several findings of fact and conclusions of law, and requested the justice to make certain other findings, which requests were refused, and the plaintiffs excepted. A judgment was entered in favor of the defendant Chapin for costs, and the plaintiffs appealed. Tanner for the appellants and plaintiff. Esek Cowen, for the respondent and defendant. Present MILLER, P. J. ; POTTER and BALCOM, JJ. By the Court MILLER, P. J. The business of the defend- ants, as merchants, was conducted under the name of " Cowen & Chapin, agents ;" and Cowen's compensation for his ser- 142 CASES IN THE SUPREME COURT [March, Hunt v. Chapin. vices in managing and conducting the same was to be one- half of the profits ; no arrangement being made as to the losses. Admitting that, ordinarily, a participation in the profits will establish the existence of a partnership between the par- ties in favor of third persons, in the absence of all other opposing circumstances, yet, as the proof shows that the profits were a measure of compensation, it may be question- able whether the circumstances under which the participation in the profits existed did not qualify the legal presumption, and establish that the profits were to be taken by Cowen in the character of an agent, as a mere compensation for labor and services, and not as a partner, (Collyer on Part., 44 ; Story on Part, 32, 36, 38 ; Buckle v. Eckhert, 1 Den., 337 ; affirmed in Court of Appeals, 3 !N". Y., 132 ; Lamb v. Grover, 47 Barb., 317 ; Merwin v. Playford^ 3 Robertson, 702.) But it is not important to decide this question, inasmuch, as there is no evidence that the plaintiffs or their agents ever knew that the defendants were connected in the dry goods business; and the note in question was given, and the advance made, ostensibly for the purpose of carrying on and working the plantation. As to the business of managing the plantation, there was a separate and distinct agreement, by which the defendant, Chapin, was to furnish all of the capital to stock and work the same ; and it was to be conducted and managed by Cowen, independent of the other business and in connection with the owner, upon a different division of the profits. If there was any partnership at all it was not a commercial partnership, where one partner could bind the firm by the making of commercial paper. There is no proof that the plaintiffs or their agent had any knowledge or expectation that the money was to be used in any other business ; and, so far as the proof goes, it establishes that the money was pro- cured as an advance for the benefit of the plantation alone, although not used for any such purpose. As an inducement 1872.] OF THE STATE OF NEW YORK. 143 Hunt v. Chapin. in obtaining the loan, it appears that the plaintiffs expected to have the sale of the cotton raised, which was to be con- signed to them in payment of the note. The note, therefore, was given entirely distinct from the dry goods business, and the loan in part for the benefit of the owner of the land, who was equally interested in the profits with the defendants who worked the plantation. Under the circumstances presented, I think that the defend- ant, Cowen, had no authority whatever to borrow money and to make a note which would bind the defendant, Chapin. The rule which authorizes one member of a copartnership to bind the firm by commercial paper does not extend to all kinds of business, and is only applicable to business of a trading or commercial nature, or to the ordinary business of buying or selling for a profit. It has no application to professional part- nerships, or to those formed for mining, farming or other pur- poses of a similar character. It is thus stated by Judge STORY : " This doctrine (that one partner can make commercial paper) is not applicable to all kinds of partnerships, but is generally limited to partnerships in trade and commerce, for in such cases it is the usual course of mercantile transactions, and grows out of the general cus- toms and laws of merchants, which is a part of the common law, and is recognized as such. But the same reason does not apply to other partnerships, unless it is the common cus- tom or usage of such business to bind the firm by negotiable instruments, or it is necessary for the due transaction thereof." (Story on Partnerships, 102 a.) And it has been held in England that the rule does not apply to partnerships formed for mining, and especially to those formed for farming pur- poses. (Healey v. Bainbridge, 3 Adol. & Ellis, N. S., 316; Dickinson v. Valpy, 10 Barn. & Cress., 128 ; Grunslade v. Down, 7 id., 635.) The business of the defendants was the cultivation and rais- ing of crops on the land which they worked as farmers or planters ; and even if they can be regarded as copartners, according to the authorities cited, one of them could not bor- 144 CASES IN THE SUPREME COURT [March, Hunt v. Chapin. row money upon the credit of the firm, and bind the firm by promissory notes or bills of exchange. It is insisted that if the parties were not copartners, and the signature to the note is to be treated as that of Cowen only, the defendant is still liable upon the contract of the agent made in his business and for his benefit. Where the act of the agent is authorized by the terms of the power, such act is binding upon the principal as to all persons deal- ing in good faith with the agent. (North River Sank v. Aymar, 3 Hill, 262 ; The Exchange Bank v. Monteath, 26 N". Y., 505 ; Prest. &c., of Westfield Bank v. Cowen, 37 N. Y, 321.) And in such case the principal would be liable, even although the funds were misappropriated. In the case at bar, the agent was not expressly authorized to borrow money or to make notes ; and in order to make the principal liable, it must be made to appear that the agent was acting within the general scope of the authority conferred upon him by the agency. I think it cannot be implied, from the charac- ter of the business itself, that Cowen had authority to borrow money, or to give notes in conducting and managing the plan- tation. Nor does the proof show, in any way, that the exer- cise of such a power was necessary for such a purpose. The case is also destitute of any evidence of the universal usage of the cotton States for merchants to make advances on the crops, so as to authorize the court to regard it as a course of business, of which they can take judicial notice. The testimony establishes that Chapin had furnished every article and all the materials necessary to carry on the busi- ness, and that the hands \vere not to be paid until the end of the season, in December or January. No money was there- fore required until that time, while the money was actually borrowed by Cowen and the note given in the month of July previous, and not a dollar of the funds used for the purposes of the business of the plantation, but appropriated by Cowen for his individual benefit. There is, therefore, nothing to show that the money was required, even if Cowen was authorized to borrow it. 1872.] OF THE STATE OF NEW YORK. 145 Hunt v. ( 'ha pin. As there was no express authority to borrow the money, and none to be implied from the nature of the business, or to be inferred from any custom to borrow money known to Chapin, it follows, necessarily, that Cowen acted without authority, and the note was not valid as against Chapin. Authorities are not wanting to sustain this view of the subject. In Davison v. Stanley (2 Man. & Grang., 721) it was held that a bailiff of a large farming establishment', through whose hands all payments and receipts passed, had no implied authority to pledge the credit of his employer by drawing and indorsing bills of exchange, and that to fix the principal the evidence should distinctly show that he knew, or had the means of knowing, the acts done in his name. In the case under consideration there is no evidence whatever to, show, either authority from, or acquiescence by, Richard Chapin. In Howtaynev. Browne (17 Mees. & Wels., 595) the action was brought by the plaintiffs to recover money advanced to an agent appointed by the company of proprietors for the man- agement of a mine, and it was held that there was no proof of express authority to borrow money for the purpose of carrying on the business, nor that it was necessary, and that no such authority could be assumed. When the bill upon its face shows that it was the act of an agent, the parties must see that the agent is acting within the scope of his authority. (Beach v. Vandewater, 1 Sand., 265.) The judge was right upon the trial, and the judgment must be affirmed with costs. Judgment affirmed. LANSING VOL. VI. 19 146 CASES IN THE SUPREME COURT [Dec., Pitts v. Hunt. MARILLA L. PITTS, Respondent, v. JOHN H. HUNT, Appellant. 6 146 (GENERAL TERM, FOURTH DEPARTMENT, DECEMBER, 1872.) Money paid by one of two persons jointly indebted on contract, at the request of the other, stops the running of the statute of limitations as to both. Where one of the debtors sent his check to the creditor, at request of his co-debtor, for money of the latter in his hands, there being no other debt due from either, Held, that it was payment by both within the statute. Also that the creditor, in the absence of other directions, having applied the money to her debt, that evidence of an understanding, unknown to the creditor for its application to that of a third person, was incompetent to show its misapplication. THIS was an appeal from a judgment entered in the plain- tin' 's favor upon a decision of the court without jury. The facts appear in the opinion of the court. Scott Lord, for the appellant. J. B. Adams, for the respondent. Present MULLIN, P. J., JOHNSON and TALCOTT, JJ. MULLIN, P. J. At some time prior to January 1st, 1850, Sanford Hunt, Jr., died seized of certain lands in the county of Allegany, in this State, and left surviving him his widow, Marilla L. Hunt, now Marilla L. Pitts, the plaintiff in this action, and an infant daughter. An application was made by the plaintiff, on behalf of the infant, to the Supreme Court for authority to sell said lands, and authority to sell was given. The lands were sold to John H. Hunt, one of the defend- ants, who thereupon purchased of the plaintiff her right of dower in said lands for the sum of $1,300. To secure the payment of the sum, he executed, and delivered to the plaintiff a paper signed by himself and Horace Hunt as surety, whereby, in consideration of the 1872.] OF THE STATE OF NEW YORK, 147 Pitts . Huflt. conveyance to him of the right, they agreed to pay the said sum of $1,300 and interest when the receipts for the sales of such lands, after paying taxes thereon, and after paying a liability of the late husband of the plaintiff to the Tolland County Savings Bank, would permit. The action is brought on this note. John H. Hunt alone defends. No question arises on any of the defences, except that of the statute cf limitations. In support of that defence, it was shown that enough of the proceeds of the sales of the lands referred to in the agreement, on which the action was brought to pay the taxes and debt due to the Tolland County Savings Bank, and to pay the debt of the plaintiff, was received as early as 1853. To rebut this evidence, it was proved, on the part of the plaintiff, that the defendant, in the years 1860 and 1868, wrote the plaintiff that he had no knowledge of the receipts from the sales of the lands, that his brother Horace had charge of the sale of them, and he (John H.) could get no statement in regard to the sales from him, but intimates that, if any had been received, Horace was not in a condition to pay- Horace, in August, 1864, writes to the plaintiff, in answer, it would seem, to an intimation from her that he had been retaining money which ought to be paid to her on the demand in suit for fifteen years, that it was not true, the fact was otherwise. He then proceeds to say that the indications were that, within the then coming year, the land, from the avails of which he expected to pay her debt, could be sold for enough to pay the incumbrances, including her debt. The plaintiff had no other knowledge or information as to when the debts to be paid before hers were or would be paid, except from the letters above mentioned. It was also proved that, in a letter dated 25th September, 1865, John H. Hunt inclosed his own bank check for fifty dollars, payable to the plaintiff, and informed her that" Horace had, in his, John H.'s hands, fifty dollars, which he desired 148 CASES IN THE SUPREME COURT [Dec.,1872. Pitts v. Hunt. him, John H., to 8end to her. She had no other demand against the said John H. and Horace Hunt, except the one on which this action is brought. The defendants' counsel attempted to show by the plaintiff that this money was sent the plaintiff to apply on a debt due by defendant to her daughter, upon the representations made by plaintiff that it was wanted to apply toward her daughter's education. The plaintiff denies that she ever asked for money to apply on any indebtedness due to the daughter ; but, on |he con- trary, asked for the money to apply on her own debt, and represented to defendants that it was to be applied toward her daughter's education, hoping thereby to obtain it the more readily. It would seem that the plaintiff had heard of an indebtedness from the defendants, or one of them, to the daughter on account of her interest in the land ; but she waa not notified that any such indebtedness existed. The court has found, and the finding is warranted by the evidence, that the defendants did not receive from the avails of the land enough to pay the taxes thereon and the Tolland County Bank debt and the debt in question until within six years, and the defendants, by stipulation, admit that the plaintiff's right of action had accrued before suit brought. This disposes of the defence founded on the statute. It is also disposed of, if the payment of fifty dollars was made on the debt in question in September, 1865. The only question there is about it on the finding of the referee is, whether the payment is to be treated as a payment by John H. That it is a payment as against Horace, cannot be questioned. That it is to be deemed a payment by John H., is established by the cases of Winchell v. Hicks (18 IS". T., 558), Monroe v. Potter (34 Barb., 358), and Miller v. Talcot (46 id., 167). On the trial the defendant offered to prove that Horace Hunt requested John H. to send the fifty dollars remitted by check in 1865 to the plaintiff for her daughter's benefit, and that he had previously paid $550 into his (John H.'s) hands 1871.] OF THE STATE OF NEW YORK. 149 Graham v. The People. for Mary. This evidence was objected to by plaintiffs coun- sel and rejected. The evidence was incompetent. The money being sent without any direction as to the application to be made of it, left the plaintiff at liberty to apply it in payment of the debt due her, and that right could not be taken away by any pri- vate arrangement or understanding between the defendants. To make the evidence competent, they, or one of them, should have given directions as to the debt on which it was to be applied. The judgment must be affirmed. Judgment affirmed. WALTEB GEAHAM, Plaintiff in Error, v. THE PEOPLE, &c., Defendant in Error. (GENERAL TERM, FOURTH DEPARTMENT, DECEMBER, 1871.) Section 22, 2 R S., 740, has not abolished the common-law record in crimi- nal cases, as is shown by 4, 2 R. S., 738 , 10 id., 739. But the statute does not require a formal common-law record of judgment to be filed in the first instance or returned upon writ of error. The return to a writ of error in a capital case, failing to show that the pri- soner had been asked if he had anything to say why sentence should not be passed, certiorari to the Oyer and Terminer or clerk, as counsel should be advised, was granted to bring up such proceedings as might remain in that court or the records thereof. MOTION by the defendant in error to dismiss the appeal of the plaintiff in error. The prisoner was indicted, tried and convicted at a Circuit Court of Oyer and Terminer held in and for the county of Wayne, for the murder of one Otto. The trial took place in October, 1870. Sentence of death was passed on him on the 29th of the same month. On the 5th of November, 1870, the district attorney caused to be filed in the clerk's office of said county a record of said conviction, as required by statute. On the 16th of January, 1871, a writ of error was allowed, 150 CASES IN THE SUPREME COURT [Dec-., Graham v. The People. together with a stay of proceedings, by DWIGHT, J., who pre- sided at the trial of Graham, directed to the Court of Oyer and Terminer, by which he was tried and convicted. On the 24th of January, 1871, a bill of exceptions taken on trial of said prisoner was signed, sealed and filed. On the 27th of January, 1871, the clerk of said county of Wayne made a return to said writ of error, containing, 1st, a copy of the indictment found against the prisoner ; 2d, the plea of the prisoner ; 3d, the continuance of the proceedings; 4th, the bill of exceptions ; 5th, the record of conviction ; 6th, the writ of error, with the allowance thereof, with a stay of proceedings ; 7th, the certificate of the county clerk of Wayne that the papers are correct copies of those on file in his office ; and, 8th, the return of the clerk. In none of the papers does it appear that the prisoner was asked, after the verdict of guilty was rendered against him,, and before sentence was passed, whether he had anything to say why sentence should not be passed upon him. This defect in the record is fatal to the conviction. To get rid of this result the defendant in error now moves to dismiss the appeal, because no judgment record had been made up and filed before the issuing and service of said writ of error. It is shown by affidavit that the court, before passing sen- tence, did inquire of the prisoner whether he had anything to say why sentence should not be passed upon him. The county clerk testifies that the return to the writ of error was prepared by one of the counsel for the prisoner, who was permitted, for that purpose, to examine and copy the minutes of said court and papers on file in said office, and who represented to said clerk that the return prepared by him for said clerk to sign contained all that was necessary to be returned, and that correct copies of the several papers form- ing said return were contained therein. The clerk also sets forth what he swears is a tnie copy of the minutes kept on the trial, and in them is found the state- 1871.] OF THE STATE OF NEW YORK. 151 Graham v. The People. ment that the court asked the prisoner if he had anything to say why sentence should not be passed upon him. On the part of the plaintiff in error it is shown that his counsel, after the issuing of said writ of error, went to the county clerk's office, and asked to see the minutes of the trial, and they were shown to them, and they found entered on the margin of the minutes, in the handwriting of one of the clerks in said clerk's office, the statement that the court had put to the prisoner the question whether he had anything to say why sentence should not be passed upon him, and said clerk told the counsel the entry was made by him within two weeks before the interview. The counsel for the defendant in error asks that, if the court declines to quash the writ of error, a writ of certiorari issue to bring up the minutes of the court and such other papers as may be necessary to show that the court did inquire of the prisoner whether he had anything to say why sentence should not be passed upon him. Present MULLIN, P. J 1 . ; JOHNSON and TALCOTT, JJ. t MULLIN, P. J. A writ of error cannot regularly be brought until after final judgment. (People v. Me?'rill, 14 N. Y., 74.) The judgment of the court was, before the enact- ment of the Revised Statutes, evidenced by a record duly signed and filed, which contained a full statement of the pro- ceedings in the cause to and including the judgment of the court. It was this record that was brought up by the writ of error. There were and are cases in which no formal record can be made up, and in such cases the final adjudication of the court is the judgment which is brought up. It is insisted that, by the Revised Statutes (3 R. S., 5 ed., 1034, 22), common-law record is dispensed with. That sec- tion provides that, upon any writ of error being filed which shall operate as a stay of proceedings, it shall be the duty of the clerk of the court to make a return thereto, without 152 CASES IN THE SUPREME COURT [Dec. Graham v. The People. delay, containing a transcript of the indictment, bill of excep- tions and judgment of the court, certified by the clerk thereof. A formal record would contain these several matters, but these do not constitute a complete record. It is quite obvious that the legislature did not intend to require a formal record to be filed and returned. But the common-law record is not abolished. By section 4 of article 1, title 6, chapter 2, part 4 of the Revised Statutes, a person may require the district attorney to file a judgment record after judgment of acquittal or conviction. And by section 12 of the same article, a copy of the minutes of con- viction and the sentence thereon, duly certified under seal, together with a copy of the indictment on which the convic- tion was had, is declared evidence in all courts and places of such conviction, in all cases on which it shall appear that no record of judgment has been signed and filed. The statute having specified what papers the clerk shall return, in obedience to the writ of error, he cannot be required to return other or different ones. In some cases the courts seem to have overlooked the provisions of section 22, above cited. In the case of the People v. Weed (31 N. Y., 465), a con- viction was reversed because the record was not signed by a judge of the court, but was signed by the district attorney only. DAVIS, J., says : " To constitute a record, it should have been signed by a judge of the court. The law on this subject in criminal proceedings has not been changed." It is doubtless true that a record of judgment, to be valid, must be signed by a judge of the court. But that was not the ques- tion before the court. It was whether the matters required to be returned by the clerk in obedience to the writ of error had been returned, and, if so, whether they showed the con- viction to be legal. With great respect, I submit that the clerk had complied with the statute, but the matters so returned showed the judg- ment to have been pronounced by but one of the members of 1871.] OF THE STATE OF NEW YORK. 153 Graham v. The People. the court, and for that reason the conviction was properly reversed. The counsel for the defendant in error refers us to the case of Lowenbey v. The People (5 Park. C. R., 414), as recogniz- ing the necessity that a record of judgment be returned. No question was raised as to the form or sufficiency of the return in that case. A judgment record was returned, and as it contained all the matters which the statute requires the clerk to return, it was, of course, sufficient. In Safford v. The People (1 Park. C. R., 4Y4) there was no record. The return was substantially the same as the one before us. In the case of People v. Phillips, the printed papers in which were handed up on the argument, the return of the clerk contained the indictment, bill of exceptions and the judgment certified by the clerk, and this was held to be suffi- cient. There was no record of judgment. The return before us is in conformity to the statute, and therefore sufficient. That part of the motion which prays for the dismissal of the writ of error must be denied. The defendant in error may allege diminution and apply for certiorari to bring up proceedings in the court below in support of the judgment. (4 Cow., 91.) It is alleged that the judgment returned is not the judg- ment actually rendered ; and that if the judgment entered in the minutes kept by the clerk on the trial were returned, the defects appearing in the judgment contained in the return would be obviated, and the legality of the conviction estab- lished. If it be true, as the clerk charges, that one of the prisoner's counsel imposed upon him a garbled copy of the judgment, omitting from it matters actually contained in the minutes of the clerk furnished to him to enable him to prepare the return, he deserves the severest condemnation. His conduct was simply infamous. But if he has given a correct copy of the judgment, and the clerk has, without authority of the court, and since the LANSING VOL. VI. 20 154 CASES IN THE SUPREME COURT [Dec., Graham v. The People rendition of the judgment, inserted in his minutes the state- ment which would render the judgment legal, which without them was illegal, he has been guilty of a flagrant breach of duty, and shown himself .unfit to be trusted in so responsible and respectable an office as that of clerk of the county of Wayne. IsTo man's person or property is safe if the clerk of the county may manipulate the records of the county to promote the interests of friends or to punish enemies, or to cover up his own or others' errors. It is not necessary now to pass upon the question of vera- city between the clerk and the counsel for the prisoner ; that question can be disposed most satisfactorily either in the court below on a motion to correct the minutes, or in this court after return is made to the certiorari. It is for the clerk to determine what he will return to the writ. If he should return the judgment as it is in the return on file, the judgment must be reversed. Should he return, as it is probable he will, the minutes as set out in his affidavit as used on this motion, and that return should stand, the defects now relied on to reverse the judgment would be cured, and an affirmance of it might follow. It would seem to be necessary, in view of the probable action of the clerk, that the counsel for the prisoner, if they think the return to be made would be false, to apply in the Oyer and Terminer to correct the minutes before a return is made, so that, if corrected, a correct copy of the minutes may be returned. It is possible that this court, after a return to the certiorari, might compel an amendment of the minutes. It is not my intention to express any opinion as to the manner in which, or the tribunal by which, the minutes, if erroneous, may be corrected ; counsel must act upon their own views of the practice, and the court must be left free to act as shall be in accordance with the practice when the question is again presented. DENIO, J., in Willis v. The People (32 K Y., 715, 722), 1871.] THE STATE OF NEW YORK. 155 Ames v. Duryea. gives his views of the practice, where the proceedings to be brought up by the certiorari occurred in the Oyer and Ter- miner, and are such as could not appear on the return. A certiorari is allowed on the part and behalf of the defendants in error to the Oyer and Terminer of Wayne county, or to the clerk thereof, as counsel may be advised, to bring up such proceedings in the case of The People v. Walter Graham as may remain in that court or among the records thereof. Leave is given to the parties to move in the Oyer and Terminer for such relief as they, or either, may deem him- self or themselves entitled to. (16 N. Y., 614.) EDWAKD R. AMES, Appellant, v. GEORGE H. DURYEA and another, Respondent. (GENERAL TERM, FOURTH DEPARTMENT, DECEMBER, 1871.) A soldier may abandon his domicile and acquire a new one, as other per- sons. His purchasing or renting a dwelling, to which he removes his family and in which he lives, is evidence of a change of domicile, in the absence of facts manifesting an intention not to remain permanently in such dwelling. 80 the removal of his family to a place where they take board is evidence of like change. THIS was an appeal from the decree of the surrogate of Chautauqua county, admitting to probate the will of Emma Louisa Ames, who died at Dunkirk in that county in Novem- ber, 1869. The facts, as they appeared in evidence, from the testimony of the appellant, are stated in the opinion. A. Hazeltine, Jr., for the appellant. J. S. Carpentier, for the respondent. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. 156 CASES IN THE SUPREME COURT [Dec., Ames v . Duryea. MULLEST, P. J. The appellant resisted the prohate of his wife's will before the surrogate of Chautauqua county on the ground that she was, at the time of making her will and of her death, domiciled in the State of Indiana, and, therefore, the laws of that State controlled the disposition of her property ; that after the making of the will she gave birth to a child ; and, by the laws of Indiana, on the birth of a child, a will theretofore made is revoked ; and hence the property of the deceased descended to her next of kin, as in case of intestacy. The facts bearing on the question of domicile are these : The appellant was born and resided with his parents in Indiana until 1S64-, when he was appointed a second lieuten- ant in the army of the United States, of which he has since been, and still is, an officer. He was between eighteen and nineteen years of age when he entered the army. He was ordered by his superior officers to Florida, where he married his decased wife on the 3d of April, 1867. He kept house in Florida, in the years 1867-8, for about a year. At some time after May, 1865, the appellant's father removed with his family to Baltimore, and resided there for some time, but for how long does not appear. The deceased, at the time of her death, was a resident of Chautauqua county in this State. The appellant was at Dunkirk in said county, with his wife and infant daughter, at the time of her death. He had been appointed Indian agent, and was then waiting orders. He had made no preparation for keeping house in Dunkirk. The domicile of the appellant, when he entered the army, was in Indiana. He neither lost that domicile, nor gained another by entering the army. His domicile remained in Indiana. But, being a minor, he was incapable of acquiring a domi- *cile other than that of his father. (Story on Conflict Laws, 46 ; 2 Kent Com., note (rf), p. 431, 3d ed.) If, therefore, his father removed to Baltimore during the 1871.] OF THE STATE OF NEW YORK. 157 Ames v. Duryea. appellant's minority, the domicile of the latter was removed to Maryland. (Same cases.) There is no proof in the case that the father removed dur- ing the son's minority ; and, in the absence of all evidence on the question, the presumption would be that the father con- tinued to reside in Indiana, and, as a consequence, the appel- lant's domicile would continue in that State. (1 C. & JL, notes, 295.) The appellant became of age some time in the fore part of the year 1867. From that time he could acquire a residence for himself. (Story on Confl. Laws, 46.) But until he acquired another, it would remain in Indiana. (Story's Confl. Laws, $ 46.) Having married, and after attaining his majority, he entered on housekeeping in Florida, the presumption would be that he acquired a domicile in that State. It is a pre- sumption that a person has his domicile where he lives. (Con- flict Laws, 46 ; Bempde v. Johnson, 3 Yes., 201 ; Marsh v. Hutchinson, 2 id., 229.) Although a soldier, while in the army, neither acquires or loses his residence in the State in which his domicile was when he entered the army, yet it is as competent for a soldier to abandon a domicile and acquire a new one as it is for any other citizen; and his purchasing or renting a dwelling- house, to which he removes his family and in which he lives, are evidence of a change of domicile, in the absence of any fact manifesting an intention not to remain permanently in such new domicile. (Conflict of Laws, 46 ; 3 Yesey, 201 ; 2 B. & P., 229, note ; Regma v. jfrastonhouse, 82 E. C. L., 901.) Some years after his wife removes to Dunkirk with her child, and the appellant either goes with her or follows her to that place. They did not keep house ; they boarded there ; and there the wife died. These facts establish another change of domicile, and the 158 CASES IN THE SUPREME COURT [Dec., Glen & Hall Manufacturing Co. . Hall. new domicile was in this State, and her property subject to our laws ; and the will was properly admitted to probate. The order of the surrogate is therefore affirmed, with costs to be paid by the appellant. THE GLEN & HALL MANUFACTURING COMPANY, v. CHARLES S. HALL. (GENERAL TERM, FOURTH DEPARTMENT, DECEMBER, 1871.) In an action to restrain the infringement of a trade-mark and for damages, a cause of action in favor of the defendant against the plaintiff for infringing the same trade-mark, claimed in the complaint to have been violated by the defendant, is not a subject of counter-claim. Accord- ingly, affirmative relief to the defendant in the action, restraining the plaintiff from using the trade-mark claimed in his complaint, and dam- ages for use of the same, is erroneous. The street number of a building cannot become part of a trade-mark unless made use of, therefor, by one who has the exclusive use of the only building designated by such a number on the street. THIS was a motion for a new trial upon a case made. The facts are stated in the opinion. W. F. Cogsw.ell, for the plaintiff. J. C. Cockrane, for the defendant. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. MULLIN, P. J. The plaintiff brought this action to restrain the defendant from using its trade-mark, and a temporary injunction *was issued. On the trial the court ordered a perpetual injunction in favor of defendant and against the plaintiff, restraining it from using defendant's trade-mark, dissolving plaintiff's injunc- tion and appointing a referee to ascertain and report the amount .of damages sustained by the defendant by reason of 1871.1 OF THE STATE OF NEW YORK. 159 Glen & Hall Manufacturing Co. v. J3all. the injunction and in favor of the plaintiff. And it was fur- ther ordered that, on the coming in and confirmation of the report of said referee, judgment, &c., be entered in favor of the defendant for costs. The facts in the case, as found by the referee, are these : Joseph Hall had been engaged in the manufacture and sale of thrashing machines at No. 10 Water street, in the city of Rochester, and put up a sign with No. 10 upon it, and his shop was known by that number. On the death of said Hall, in the spring of 1869, the premises and property of said Hall were sold by his executors to the defendant, who continued the business at the same place, and designated his place of business as " Old Joseph Hall's Agricultural Works, No. 10 South Water St." The plaintiff, prior to the fall of 1869, carried on the busi- ness of manufacturing agricultural implements at Brighton, some two and a half miles from Rochester. In the fall of 1869 they rented a small office on South Water street, near to defendant's shop ; and, with intent to injure defendant, put on the store the words and figures " No. 10," thereby indicating their place of business as being " No. 10 " South Water street. The number was put upon the implements manufactured by them. The plaintiff concedes that they were properly refused the relief asked for, but they insist that none should have been granted to defendant. And it is to get rid of that part of the judgment that this motion for 'a new trial is made. The defendant is entitled, as a matter of course, to the appointment of a referee to ascertain and report what damages he has sustained by reason of the issuing of the injunction. So much relief the defendant was clearly entitled to. The only question remaining to be considered is, whether the defendant is entitled to the other relief awarded him by the Special Term. The words, No. 10, were first used by defendant's grantor. Their use was continued by himself; and the use by plaintiff of those words having been found to be fraudulent, entitled 160 CASES IN THE SUPREME COURT [Dec., Glen & Hall Manufacturing Co. v. Hall. defendant to judgment restraining plaintiff from their use, if they were a part of his trade-mark. A trade mark is thus described or defined by the chancel- lor, in Coates v. Holbrook (2 Sandf. R., 622, 626) ; a particular label or sign indicating, to those who wish to give the person using it their patronage, that the article is manufactured or sold by him or by his authority, or that he carries on business, at a particular place. Against the use or imitation of such mark the injured party is entitled to protection by injunction, and he may maintain an action for damages. (/Stokes v. Lan- degrof, 17 Barb., 608.) In the last case cited the court say : " In respect to words, marks or devices which do not denote the goods or property, or particular place of business of a person, but only the nature, kind or quality of the articles in which he deals, a different rule prevails. No property in such words, marks or devices can be acquired. They may be used by many different per- sons at the same time, in their brands, marks or labels on their respective goods, with perfect fairness. They signify nothing, when fairly interpreted, by which any dealer in a similar arti- cle could be defrauded. (Cowen v. Doty, 7 osw., 222 ; Amoskeag Manufacturing Co. v. Spear, 2 /Sandf. S. C. JR., 599.) In the latter case, DUER, J., says, at page 606, but he (the owner of the original trade-mark) has no right to an exclusive use of any words, letters, figures or symbols, which have no relation to the origin or ownership of the goods, but are only meant to indicate their name or quality. He has no right to appropriate a sign or symbol from the nature of the fact which it is used to signify others may employ with equal truth, and, therefore, have an equal right to employ for the same purpose. It will be seen from the foregoing extracts that a party has the right to be protected in the use of a trade-mark that indicates the place of business where he manufactures or sells his goods. If by this proposition it is intended to say that a manufac- turer or vendor of an article can acquire the right by prior 1871.] OF THE STATE OF NEW YORK. 1GL Glen & Hall Manufacturing Co. t>. Hall. use to the exclusive use of the designation of the place in which he makes or vends an article, as a part of his trade-mark, it cannot and ought not to be sanctioned. Could it be tolerated that the man who first put in bottles and sold mineral Waters in the city of New York might, by putting on the bottles his name and his residence in that city, exclude every other manufacturer of such waters from desig- nating such city as his or their place of business? I appre- hend not. If he may not exclude from a city, why should he from a street or a block on a street ? If a building consists of several stores, may the man who first commences the manufacture or sale of agricultural machines, by designating the number of the building as part of his trade-mark, exclude those who may occupy the upper stories of the same number from designating the same build- ing or number as their places of business where similar articles are manufactured or sold ? It seems to me that no such right can be acquired. 1 do not intend to say that a person may not designate his place of business as a part of his trade-mark, so as to entitle him to protection from the same designation by another. But to do it successfully he must secure some other mode of designation, a city, street or number, at or in which others have the same right to deal and manufacture as himself. If the man who uses the street or number as a part of his trade-mark has the exclusive use of the building indicated by the number, I do not doubt he may use it as a part of his trade-mark against persons who have no right to or interest in the building indicated by the number, but who use it as a part of their trade-mark, in order to pirate on the one justly entitled to use such number to designate his place of business. But on the answer in this case the defendant was not entitled to the affirmative relief granted to him, beyond the reference to ascertain his damages for breach of his injunction. To entitle a defendant to affirmative relief the answer must LANSING VOL. VI. 21 162 CASES IN THE SUPREME COURT [Dec., Dorn v. Fox. set up a counter-claim. ( Wright v. Delafield, 25 N. Y., 266 ; Garvey v. Jarvis, 54 Barb., 179.) The claim of defendant for relief is not a counter-claim within the meaning of that term as used in the Code. It does not arise out of the transaction set forth in the plaintiff's complaint, nor does it arise on contract. The motion for a new trial is granted, with costs to the plaintiff. CHARLES DORN, Respondent, v. MENZO Fox, Collector, &c., Respondent. (GENERAL TERM, FOURTH DEPARTMENT, DECEMBER, 1871.) The owner of a farm, situated in two adjacent towns, having been assessed in both for taxes of the same year, brought an action to compel the respective collectors, who held each a warrant for collection of his town's tax, to compel them to interplead. He resided, at the time of the assessment, and so alleged, on that part of the farm situated in one of the towns. Held, that he could not claim to be ignorant of the rights of the respective collectors, and the action was not maintainable. THIS action was brought to compel the collectors of taxes for the towns of Ava and Booneville, Oneida county, to inter- plead and settle between themselves conflicting claims for taxes against the defendant's farm, which was situated partly in each of these adjacent towns. The facts are stated in opinion of the court Adams dk Swan, for the appellant. Richardson & Adams, for the respondent. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. MULLIN, P. J. The plaintiff alleges, in his complaint, that he owns a farm lying partly in the town of Ava and partly in the town of Booneville, in the county of Oneida ; that 1871.] OF THE STATE OF NEW YORK. Dora . Fox. he lived on the part lying in Booneville in the summer of 1869. In that year he was assessed for the whole of said farm in the town of Ava, and the tax upon said farm was forty-one dollars and eighty-fifty cents. He was assessed in the same year for the whole of said farm in the town of Booneville, and the tax upon that farm in that town was sixty-one dollars. Warrants have been issued in both towns for the collection of said taxes. He is ready and willing to pay said tax, but does not know' to which of said collectors to pay it, and he prays judgment that the said collectors interplead, and that, on payment to the one found entitled, he be discharged from further liability for said tax. The plaintiff asked and obtained a temporary injunction to restrain the defendants from collecting the tax. The defendants answered severally, and each insisted that the plaintiff lived in his town, and that he, defendant, had the right to collect said tax. The issues were referred to a referee, who found the facts as charged in the complaint. He ordered judgment in favor of collector of Booneville against the plaintiff, with costs, as upon a trial of an issue of law and judgment in favor of the plaintiff, and against the collector of Ava, restraining him from collecting said tax, with costs. From this judgment defendant Fox, collector of Ava, appeals. It is alleged, in the complaint, that when the assessments were made in the towns in which the plaintiff's farm lies, he lived in the town of Booneville, and that no part of it was unoccupied. It was taxable only in the town in which the owner resided. (1 R. S., 5th ed., 908, 3.) Ti e plaintiff is deemed to know what the law is, and must be held to know, therefore, that his farm was taxable in Booneville and was not taxable in Ava. He could not allege, truthfully, that he did not know which 164 CASES IN THE SUPREME COURT [Dec., Dorn v. Fox. of the collectors was entitled to the tax. This is fatal to the action as one of interpleader. In the Mohawk & Hudson JR. It. Co. v. Clute (4 Paige, 384), the plaintiff had been assessed in the city of Albany on its capital, and also in Rotterdam, in Schenectady county. The bill alleged that the principal office of the company was in Rotterdam. The bill was filed to compel the collectors of taxes in the second ward of the city of Albany and of Rotterdam to interplead. The chancellor held the bill was defective as a bill of interpleader, because it showed upon 'its face that the plaintiff knew which of the collectors was entitled to the tax imposed upon the capital of the company. He says (page 302) the bill cannot be maintained as a bill of interpleader as against the collectors of Rotterdam and the supervisors of Schenectady, because, if the complainants were taxable any- where upon their capital stock as personal estate, it is evident t'rom their own showing that they were properly taxed in Rotterdam, where their principal office or place for trans- acting their financial concerns of the company was situated, and that the tax imposed in the second ward of Albany was illegal and void. It is not sufficient, to sustain a bill of inter- pleader, that one of the defendants claims from the com- plainant the same debt or duty, when it appears from the bill itself that the debt or duty unquestionably belongs to the other, and that the complainant is not ignorant of their respective rights as between themselves. To authorize the complainant to call upon the different claimants to interplead, he must show that he is ignorant of their rights, or that there is some doubt at least to which of such claimants the debt or duty belongs. The case before us is identical in principle with the one cited, and disposes of it. The action as one of interpleader must fail. It was held in Thompson v. Elbitts (Hopk., 272), and again in the case of The Mohawk & H. R. R. Co. v. Clute (supra), that a bill of interpleader was maintainable between col- 1871.] OF THE STATE OF NEW YORK. 165 Dorn v. Fox. lectors of taxes for different towns claiming to collect taxes for the same year upon the same property. When this remedy fails the question is, Is there any other remedy whereby the person thus assessed may be relieved from the assessment found to be illegal ? If there is such a remedy it must be against either the assessors who made the assessment, the collectors who attempt to enforce it, or against the town or county to which it is paid. It is well settled that an action lies against the assessors, who assess a person for property who is not an inhabitant of their town, or where for any other reason the assessment is made without jurisdiction. (My gait v. Wasfiburn, 15 N. Y., 316 ; Bailey v. JBuel^ reported in Albany Law Journal, 13 May, 1871 ; 59 Barb., 198.) When the warrant issued to the collector is regular upon its face, it is a protection to him, however illegal or irregular it may in fact be. The county or town to which an illegal tax may be paid is not liable to an action for the money so received. (37 N. Y., 571 ; 1 Kern., 392 ; 1 id., 563.) Besides the remedy against the assessors for making an illegal assessment, the injured party can review the action of the assessors by certiorari, or strike it from the roll by man- damus. (32 How., 359.) These remedies are ample for the protection of the plain- tiff, and there is no reason why he should invoke the inter- ference of a court of equity, whose right to interfere is at least questionable. If there is a remedy in equity it is con- fined to interpleader, and as that cannot be maintained in this case the action fails, and the judgment of the referee must be reversed and a new trial ordered, costs to abide the event. 166 CASES IN THE SUPREME COURT [Dec., Whitwell 0. The Putnam Fire Insurance Co. JOHN WHITWELL, as Receiver, &c., v. THE PUTNAM FIBK INSURANCE COMPANY, Appellant. (GENERAL TERM, FOURTH DEPARTMENT, DECEMBER, 1872.) Evidence is admissible, in an action on a fire insurance policy, to show waiver, by the insurer's agent, of a condition that any other insurance shall be by a consent of the company written on the policy. It seems, an insurance upon merchandise or liquors, &c., held by the insured for sale, covers the actual property insured, and that also of the same description which is substituted for it after sales. And that insurance of the liquors so substituted is within the condition of a previous policy, which requires the insurer's consent to other insurance. Whether, in case of increase of the quantity of the liquors, a new insurance would be double insurance, the value of the property exceeding both insurances, quere. Failure to obtain consent for other insurance upon a part of the insured pro- perty avoids the insurance as to all covered by the policy. THIS was a motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term. The plaintiff brought his action, as receiver, upon a policy of insurance issued to one Andrew J. Easterly, by which the defendant insured Easterly $2,500 for one year, " on a stock of liquors and spirits contained in the frame building now occupied by him as a rectifying establishment, in the village of Dresden, Yates county, $2,000 ; on his fixtures and mate- rials used in rectifying, $500." The material facts are stated in the opinion. Hunt & Green, for the appellant. W. F. Cogswell, for the respondent. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. MULLIN, P. J. On the 22d day of June, 1869, A. J. East- erly procured a policy to be issued to him by the defendant, insuring him against loss by fire for one year upon his stock of liquors and spirits contained in a frame building then occu- pied by him as a rectifying establishment, in the village of 1872.] OF THE STATE OF NEW YORK. 167 Whitwell . The Putnam Fire Insurance Co. Durham, to the amount of $2,000, and on his fixtures and materials used in rectifying, $500. This policy contained, amongst other conditions, the follow- ing, viz. : " If the assured shall have, or shall hereafter make, any other insurance on the property hereby insured, without the consent of the company written hereon, the policy should be void." Subsequently, and on the 22d January, 1868, the said Easterly procured from the Security Insurance Company a policy of insurance for the term of one year, insuring him against loss by tire to the amount of $1,000 on his stock of liquors and spirits, stored in a building described in the policy of defendant. The consent of defendant to the second insurance above mentioned was never written on the policy. On the trial the plaintiff gave evidence tending to prove a waiver by defendant's agent of the condition aforesaid. At the close of plaintiff 's proof, the defendant's counsel moved to strike out the evidence so given by the plaintiff, and the court granted the motion and nonsuited the plaintiff. The motion was granted, not because it did not tend to prove a waiver, but because the subsequent insurance was not indorsed on the policy, as required by the conditions of it. Under these circumstances the plaintiff must be deemed to have offered evidence of a waiver of the condition in question by the defendant's agent, an objection thereto by the defend- ant's counsel, and that the evidence offered was rejected by the court. On the 15th of May, 1868, the plaintiff's stock of liquors and spirits was destroyed by fire to the amount of $3,339, and the fixtures in his rectifying establishment to the amount of $575. It has been repeatedly held by the courts in this State that the insurer may waive conditions inserted in a policy for its benefit. (Liddle v. The Market Ins. Co., 29 1ST. Y., 184 ; Ames v. N. Y. Union Ins. Co., 14 id., 253 ; Wilson v. Gen- 168 CASES IN THE SUPREME COURT [Dec., Whitwell V. The Putnam Fire Insurance Co. esee M. Ins. Co., 16 Barb., 511 ; Hyatt v. Waite, 37 id., 29 ; Benedict v. Ocean Ins. Co., 31 K. Y., 389 ; Boehen v. Wil- liamsburgh City Ins. Co., 35 id., 131.) In Bochen v. The Williamsburgh City Ins. Co. (supra) it was held that an agent of an insurance company may waive a condition in the policy that unless the premium is paid the policy shall be void. It was held in Owen v. The Farmers' Joint Stock Ins. Co. that an agent might waive the condition in the policy requiring proofs of loss. The same thing was held in Shel- don v. The Atlantic Fire and Marine Ins. Co. (26 N. Y., 460). If an agent may waive one condition in a policy, no reason is perceived why he may not waive any or all of them, unless his power is restricted, or he is acting fraudulently, with the knowledge of the assured. The defendant's counsel refers to numerous cases that, at first view, would seem to be in conflict with the cases above cited, but which, on more careful examination, will be found to be in harmony with them. In Carpenter v. The Providence Insurance Company (16 Peters, 495) the policy sued on contained a condition substan- tially the same as the one before us, in regard to other insu- rances. Another insurance being proved, the policy was held to be void ; but no claim was made or evidence offered to prove a waiver, in any manner, of the condition. In Gilbert v. The Phwnix Ins. Co. (36 Barb., 372) the policy contained the same condition, but there was no evi- dence of a waiver of the condition. In Lanmtt v The Hudson River Ins. Co. (17 N. Y., 199, note) it was held that where a policy of insurance contained a provision that camphene should not be used on the premises insured, unless permission for such use be indorsed in writing on the policy, evidence to show that at the time of making the policy the plaintiff might use camphene as a light was incompetent, as it directly contradicted the policy. The ques- tion of waiver was not in the case. 1872.] OF THE STATE OF NEW YORK. 169 Whit well v. The Putnam Fire Insurance Co. The case of Barrett v. The Union M. Ins. Co. (7 Gush., 175) was decided on substantially the same grounds. In Wooster v. The Hartford Fire Ins. Co. (11 Gush., 265) the question was whether the condition (which was similar to the one before us) was performed by the plaintiff. The evi dence was that he obtained several policies on the same property. On one of those issued by defendant there was indorsed the insurances effected in other companies, but the policy on which the action was brought was not indorsed, for the reason that it was not present. Plaintiff showed the agent a memorandum of the various policies when the indorsement of the other policy was made. The agent told plaintiff that it would make no difference that the policy sued on was not indorsed ; that he would enter it on his books. He took the policy as if to enter it, and returned it, giving him to understand that he had entered it ; but he had not. The court held that this was not a performance of the condi- tion, and the plaintiff could not recover. Whether there was a waiver of the condition, or whether defendant was estopped from insisting on the non-performance of the condition, was not suggested. Had it been, it is quite possible that the court would have held that there was neither a waiver nor estoppel. But such a ruling would have been in direct conflict with the cases in this State. The same learned court, in Hall v. The Mechanics' M. Fire Ins. Co. (6 Gray, 169), held that a policy was void because a subsequent insurance was procured without the consent in writing of the president of the company. The by-laws of the company required such consent ; and they further provided that the by-laws should not be altered unless upon previous notice, and by the votes of two-thirds of all the members present at the meeting. The verbal consent of the president was of no avail, as to allow it would annul the by-law which gave that power to the members of the cor- poration. The same court held, in Kimbatt v. The Howard Fire Ins. Co. (8 Gray, 29), that where the policy requires the consent LAXSIXG VOL. VI. 22 170 CASES IX THE SUPREME COURT [Dec., Whitwell v. The Putnam Fire Insurance Co. of the insurer to be in writing, evidence of consent in any other form is incompetent. Again, in Pendon v. The American M. Ins. Co. (12 Oush., 469), the same court held that where the condition of the policy requires the consent to be in writing, it is not satisfied by proving verbal notice to an agent, although a memoran- dum thereof be then made by such agent in a private book of his own, containing entries in relation to insurance. In Blake v. The Exchange M. Ins. Co. (12 Gray, 265) the same court concede that the condition as to proofs of loss may be waived, and under some circumstances the insurer may be estopped from insisting upon the non-compliance with certain conditions in the policy. But it does not appear that the court intended to depart in the slightest degree from the rule applied in the preceding cases, as to the necessity of strict compliance with the condition where the consent of the com- pany is required by the policy to be in writing. The Massachusetts cases are directly in point, and support the ruling of the court at the Circuit ; but being, as it seems to me they are, in direct hostility to numerous cases in our own courts, we cannot follow them, and must hold that evi- dence of waiver of performance of such a condition by the insurer or his general agent is competent, and, being rejected in this case, the nonsuit must be set aside and a new trial granted, with costs to abide the event. In the event of a second trial of this cause, the question will necessarily arise whether there was in reality a second insurance, within the true intent and meaning of the policy. The language of the condition is, " if the insured shall have or shall hereafter make any other insurance on the property hereby insured without the consent," &c. The property insured by the defendant's policy was in name the same as that insured by the Security Insurance Company, except the fixtures, which were not in the policy of the last named company. The words " property hereby nsured " are susceptible of two constructions : one of which is, the same identical article of 1872.] OF THE STATE OF NEW YORK. 171 Whitwell v. The Putnam Fire Insurance Co. property ; the other, articles of the same description of pro- perty. The defendant's policy was issued in June, 1867, the Secu- rity Company's policy in January, 1868. Between those dates the insured had been selling liquors and spirits from day to day, and buying others, so that the same identical liquors and spirits were not in the house of the insured in January that were there the preceding June. It would have been impos- sible to effect an insurance on the same property that was covered by defendant's policy on the day it was issued. To give effect, then, to the words of the defendant prohibiting a second insurance on the property thereby insured, we must construe the words as meaning property of the same descrip- tion deposited in the storehouse of Easterly. Thus construed, it would be competent for the insured to purchase and sell property and protect it by insurance, and give effect to the conditions of the defendant's policy, without annulling the condition against second or other insurance without notice indorsed on the policy. It is said that a second insurance is not double insurance, or insurance on the same interest covered by the first policy, the value of the property exceeding the amount insured by both policies. The object of the condition is not to protect the insurer against a second insurance on the same interest, but it is to enable him to know the amount insured upon the property covered by his policy. He has an interest in the inquiry whether the property is of greater or less value than the amount insured ; and this he cannot know unless it is made the duty of the insured to inform him. If he cannot compel this disclosure, the grossest injustice may be perpetrated with impunity. The change from day to day of the liquors and spirits in the storehouse did not impair the policies ; they at once applied to whatever property of the same description that was brought into the storehouse. The second insurance was, 172 OASES IN" THE SUPREME COURT [Dec., The People ex rel. Dilcher 0. St. Stephen's Church. therefore, upon the same property covered by defendant's, and was within the condition which required notice. If the question was whether a double insurance was effected by the second policy, I am not prepared to say that it was. If Easterly, on the day of the date of defendant's policy, had liquors, &c., of the value of $3,000, and on the 22d Janu- ary, when the second policy issued, had $10,000 in value of the deecription of property, the second insurance would not be, I apprehend, on the same interest as the first, yet it was upon the same property. I am of the opinion that the insured was bound to give notice of the second insurance. I do not think that the plaintiff was entitled to recover for the value of the fixtures covered by the defendant's policy. By its terms it became void if notice was not given of the subsequent insurance ; not void in part only, but void alto- gether ; and, being void, no action could be maintained upon it at law. "Whether equity would afford the party relief is not now before us for decision. A new trial is granted, costs to abide the event. THE PEOPLE ex rel. CHKISTOPLE DILCHER, Appellant, v. THE GERMAN UNITED EVANGELICAL ST. STEPHEN'S CHURCH OF BUFFALO, Respondent. (GENERAL TERM, FOURTH DEPARTMENT, DECEMBER, 1871.) A mandamus will issue to compel the trustees of a church corporation, incorporated under the general law, to restore to his rights, as a corpora- tor, one who has been expelled from the church membership, but who is qualified, as a corporator, under the statute. : This is so, although the by-laws of the church preclude all but church mem- bers from the rights of corporators. A by-law presenting any different qualifications for membership than such as are required by the statute is void. The decision in this case at Special Term (3 Lansing, 434.) reversed. 1871.] OF THE STATE OF NEW YORK. 173 The People ex rel. Dilcher v. St. Stephen's Church. APPEAL from a judgment entered upon the direction of the Special Term. The facts are stated in the opinion. Delavan F. Clark, for the appellant. Greene & Bryant, for the respondent. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. MULLIN, P. J. This is an appeal from an order made at Special Term in Erie county, overruling a demurrer to a return to an alternative mandamus. This alternative writ alleges that the relator was a member of the German United Evangelical St. Stephen's Church of Buffalo, which has been duly incorporated under the general law of the State regulating the incorporation of religious societies ; that at a meeting of the members thereof he was expelled, for having united with two other members of the same church in writing a false, fraudulent, scandalous and malicious letter to an officer of a German Protestant Evan-' gelical church in Pittsburgh in relation to Rev. Frederick Schiller, the pastor of the defendant's church', and was deprived, by reason of such expulsion, from the exercise and enjoyment of the rights, privileges and liberties, franchises and profits appertaining and belonging to a membership in said church ; and the writ then commands the defendant to admit and restore to membership in said church, together with all the rights appertaining or belonging thereto. The return admits the membership of relator, his expulsion for the cause aforesaid. It is alleged that by the by-laws of said church no one but a member of the church, admitted according to the discipline of said church, can vote at the meetings of said church, hold office therein, or enjoy any of the rights and privileges of the same ; that the relator, being expelled for the cause above mentioned, lost his right to vote and hold office, and any and all other rights he might other- wise have been entitled to as such member. 174 CASES IN THE SUPREME COURT [Dec., The People ex rel. Dilcher v. St. Stephen's Church. The principal ground of demurrer to the return, and the only one I shall consider, is that the return does not set forth or show any sufficient grounds or cause for the expulsion of the relator. With the action of the church as a religious body we have nothing whatever to do, and we decline altogether to enter upon any review of its action in expelling the relator from the church, acting as a religious body. We have power to regulate the proceedings of the church corporation as a legal being only, and if it has deprived the relator of any of his, legal rights as a member of the corporation, it is our duty to compel them to reverse their action and restore him to the enjoyment of such rights. In order to determine who are entitled to be considered corporators in a religious society that is incorporated, refer- ence must be had to the general law. (2 R. S., 5th ed., 609, 7.) They are those who have been stated attendants on divine worship in said church, congregation or society, and contributed to the support thereof, according to its usages and customs. There is no authority for requiring any other qualification to constitute a person a member of said society, and any by-law, rule or regulation prescribing any other or different qualification is utterly void. There is no power vested in any number of the corporators, by the statute, to deprive a person qualified under it of his right to exercise the powers and enjoy the privileges conferred by it on the members of the society. It has been decided in England, in the case of King v. Richardson (1 Barr, 517, 541), that a corporation aggregate may disfranchise a corporator and remove an officer for suffi- cient cause, but subject to the following limitations : To authorize its exercise the offence must be, 1st. Of so infamous a nature as to render the offender unfit to execute any public franchise, unless it relates to the official or corporate character of the party. 2d. It must relate to the official or corporate charter, and amount to a breach of the condition tacitly or expressly annexed to his franchise or office ; and, 3d. Where 1871.] OF THE STATE OF NEW YORK. 175 The People ex rel. Dilcher v. St. Stephen's Church. the offence is of a mixed nature, being not onlj* against his official or corporate duty, but also matter indictable at com- mon law. As to the first class, the corporation cannot remove or dis- franchise without a previous conviction at common law. As to the second, the corporation may, after hearing the accused, disfranchise or remove him. And as to the third, it is doubt ful whether there is power to disfranchise until there has been a conviction. (Fawcett v Charles, 15 Wend., 473.) NELSON, J., in this case, expresses a doubt whether a pri vate corporation has power to disfranchise a corporator. But with great respect for the learned judge, it seems to me there should be no doubt on the subject, especially in private stock corporations, or in corporations in which the corporators have any pecuniary interests to protect. Surely a stockholder in a bank cannot be disfranchised because his private character or conduct may be immoral. A member of a corporation organized under the law relating to the incorporation of religious societies, if a pew owner, has a pecuniary interest in the management of its affairs by its trustees. They may neglect to keep the church edifice in repair, to supply fuel or lights, to employ a minister ; they may embezzle its funds and be guilty of violations of the duty they owe the society in many ways, affecting injuriously the interests not only of those who own pews but of those who attend worship in the church and contribute to its funds. Considering the corporation as a mere civil organization, the bad character or .conduct of the corporator cannot deprive him of his rights, although it may bring discredit on the society to have such a person a member of it. If we were dealing with the church as a religious body, other and differ- ent considerations would be acted upon. The ground on which the relator was disfranchised is set forth in the return. The conduct imputed to him, and which constitutes the ground of disfranchisement, is certainly dis- reputable, but it does not furnish any adequate reason for depriving him of his rights as a member of the corporation, if 176 CASES IN THE SUPREME COURT [Dec., Voorliees . Burchard. the other members had the right to disfranchise him for any cause. We think the relator is entitled to a mandamus to restore him to his rights as a member, not of the religious organiza- tion, but of the corporation, to the end that he may exercise all the powers and possess all the rights and privileges per- taining to members of said corporation. The order of the Special Term must be reversed, and judg- ment ordered for the relator, that a peremptory mandamus issue, with costs to the relator. PETEK S. VOOKHEES, Appellant, v. HENET BURCHAKD, Respondent. TERM, FOURTH DEPARTMENT, DECEMBER, 1871.) The right to use ground contiguous to a saw-mill, for the piling of logs, may be gained by prescription. And it passes by conveyance of the mill as appurtenant thereto. Evidence of the intention of the parties to the deed, that the grantee should not acquire the easement, cannot prevail over a conveyance of the mill and its appurtenances. Evidence is admissible to restrict the right to such premises as are reason- ably necessary for the enjoyment of the easement. THIS was an appeal from a judgment in favor of the defendant, entered upon the report of a referee. The action was trespass, for entering the plaintiff's close and drawing arid leaving logs thereon. The defendant claimed a right to enter, &c., under one Brady, who he alleged to be owner of the freehold. The defendant also claimed that the locus in quo was a public highway, and alleged a right in the public, by prescription, to pile logs on the land. The facts, as they appeared upon the trial, are stated in the opinion. D. Rumsey, for the appellant. George B. Bradley, for the respondent. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. 1871.] OF THE STATE OF NEW YORK. 177 Voorhees v. Burchard. MULLIN, P. J. In 1840, and for a long time prior thereto, Ransom Rathbone owned the property in question, together with a large quantity of land adjoining. Oil the premises so owned a saw-mill was erected in 1840; and for a period thereafter of some twenty -five years logs, drawn to be sawed in the saw-mill, were piled on the locus in quo and other lands adjoining. From time to time portions of the lands on which logs -were piled were sold, and thereafter the logs were piled on the remaining lands. The only place remaining on which logs may be piled is the locus in quo. The only way to the mill is over the piling ground. Over it the said Rath- bone was accustomed to pass to his said mill, as have been those who succeeded him in the ownership thereof. Ransom, on the 14th of August, 1840, conveyed to Henry W. Rathbone the mill property above mentioned, together with the appurtenances and all the estate, title and interest of the said Ransom. Prior to 1860 H. W. R. erected on the premises so pur- chased by him a grist-mill ; the way to which was and is over the locus in quo. In 1865 H. W. R. conveyed the said mill property with the appurtenances to Francis J. Brady, who went into pos- session under the conveyance to him, and has ever since used the locus in quo as a place for piling logs for his saw-mill. The premises in question were conveyed to the plaintiff in 1861, who is now the owner thereof. Brady, who owned the mill and had logs piled on the locus in quo, gave his consent to defendant to pile logs thereon ; and the trespass, for which this action was brought, was for piling on said premises a load of logs. The cause was referred, and the referee finds the facts above stated, and that the use of the locus in quo is necessary to the beneficial enjoyment of said mill, as a way to said mills and mill-yard, and that the said right of way and of piling logs passed to Brady as appurtenant to the said mill. Assuming that Brady, by virtue of the conveyance to him. acquired the right to pile logs on the locus in fpio for the use LA.VSLVG VOL. VI. 23 * 178 CASES IN THE SUPREME COURT [Dec., Voorhees v. Burchard. of his mill, that did not give him the right to pile or author- ize others to pile thereon logs not for the use of his mill. It would seem that it was a custom mill, to which persons having logs which they wished to have sawed into lumber brought them, and they were sawed by the owner of the mill for a compensation, paid by the owner of the logs. The defendant, I infer from the evidence, brought the logs, for the piling of which this action is brought, to Brady's mill to be sawed ; and if he (B.) had the right to use the locus in quo as a place for piling logs, the defendant is not liable in this action. But if Brady had no such right he could confer none on the defendant, and he, defendant, would be liable. The plaintiff is concededly the owner of the premises in dispute, either absolutely or subject to the right of Brady and his customers to pile logs thereon. Brady has no title to the premises ; they are not embraced in his deed, and the title to them would not pass as appurte- nant to the mill property (Lawrence v. Delano, 3 Sandf., 333) ; but the easements, that is. the right to travel over it and to pile logs upon it, might. (Huttemeier v. Albro, 18 N. Y., 48 ; Taber v. Bradley, id., 109 ; Oakley v. Stanley, 5 "Wend., 523 ; Leroy v. Platt, 4 Paige, 77 ; 4 Kent's Com., 467, 468.) If there was a plainly marked way from the highway to the mills those who desire to go to the mills must follow it. Under such a right the right to pile logs cannot be sup- ported. They are distinct rights or easements, and must be used each by itself. Ransom Rathbone having used the locus in quo for a way to his mill and for piling logs, if there was no other way to it, and he granted the mill with its appurtenances, this would carry the way, either as appurtenant to the mill or as a way of necessity. The premises in question being used by Ransom for piling logs prior to and at the time of the sale by him to Henry W. Rathbone, the right to pile would pass if there was no other place for piling. 1871.] OF THE STATE OF NEW YORK. 179 Voorhees t>. Burchard. But however that might be, that right was acquired by Henry after twenty years' use, and it passed to Brady as an appurtenant to the mill; and plaintiff took his title in subor- dination to it. Brady was therefore authorized to permit his customers to pile logs on the premises in question ; and that permission justified the defendant in piling them on the land. Evidence was given that when Henvy W. Rathbone took his conveyance from Ransom, it was not intended or understood that the former acquired any easement in the locus in quo. Some evidence was also given tending to show that Brady did not understand that he acquired any interest in said premises. But the rights of the parties must be ascertained from the deeds themselves, the situation of the premises, and the acts of the parties under the deeds. The understanding of parties cannot overcome the force of the evidence derived from the deeds, the situation of the premises and the acts of the par- ties. Whatever Henry may have known or declared, he never- theless did travel over these premises and pile logs thereon for over twenty years. This user created a right, if he had it not before. Having it, he could lawfully convey it, and he did. The question as to how much of the locus in quo was necessary to be used as a way or for piling logs was compe- tent. If there was more land than was reasonably necessary for the purposes of a way and of piling, it belonged to the plain- tiff. And it would be an invasion of his right of property for Brady, or those acting by his permission, to pile logs on the premises. The judgment of the referee must be affirmed. Judgment affirmed. 180 CASES IN THE SUPREME COURT Doyle v. Gibbs. HENKY DOYLE v. ANSON A. GIBB&. (GENERAL TERM FOURTH DEPARTMENT, DECEMBER, 1871.) One occupying a bouse as servant of the owner, upon termination of the service was permitted to retain possession upon payment of rent until the condition of his wife should allow her removal. Held, that the duration of the occupancy depending on a contingent future event, the relation of tenancy at will or by sufferance did not arise between the parties. Held, also, that the occupant held under a mere license for the time agreed, and no notice to quit was necessary. THIS was a motion for a new trial, upon a case made and exceptions ordered to be heard in the first instance at General Term. The action was replevin, and the plaintiff had a verdict for the value of the property claimed, and nominal damages, upon facts which are stated in the opinion. E. A. Nash, for the defendant, cited Hay wood v. Miller (3 Hill, 90) ; People v. Aimes (45 Barb., 304) ; Ely v. Ehle (3 K Y., 507) ; Nichols v. Primer (18 K T., 313) ; Newman v. Jeune (47 Maine, 520, 522) ; Spalding v. Spalding (3 How., 299); 2 Greenl. Ev., 642; Hilliard on Torts (3d ed., 77 ; 2 id., 97) ; Heald v. Carey (3-Eng. L. & Eq., 429) ; Gobi v. Dows (9 Barb., 230) ; Boyce v. Brockway (31 K Y., 490) ; Parks v. Purdy (11 Mo., 219) ; Bushel v. Miller (1 Strange, 128) ; Fould v. Willoughby (8 Mees. & W., 540) ; Van Valkenburgh v. Thayer (57 Barb., 196) ; Thorogood v. Robinson (6 Ad. & Ell [K S.], 769) ; Peck v. Knox (1 Swee- ney, 311) ; Stockwell v. Plielps (34 K Y., 364, 365). H. Decker, for the plaintiff, cited Burns v. Bryant (31 N. Y., 454) ; Sarsfield et al. v. Healy (50 Barb., 248) ; Post v. Post (14 Barb. , 353) ; Connah v. Hale (23 Wend., 462, and cases there cited) ; Allen v. Crary (10 id., 462 ; 1 Keyes, 468) ; Wheeler v. McFarland (10 id., 324) ; Boyce 1871.] OF THE STATE OF NEW YORK. 181 Doyle v. Gibbs. et al. v. Brockway (31 N. Y., 490) ; Cobb v. Dows et oL. (9 Barb., 242). Present MDLLIN, P. J. ; JOHNSON and TALCOTT, J L MULLIN, P. J. This is an action of replevin, brought to recover the possession of a quantity of household property, which the plaintiff alleges the defendant has unlawfully taken and detained. The plaintiff entered into an agreement with defendant to work for him as laborer ; he was to have toward his wages the use of a cow and pasture for her, the use of a house and other property and privileges, and twenty dollars per month as long as they could agree. The plaintiff commenced work for defendant about the 1st April, 1869, and took possession of a house belonging to the defendant and continued to work for him for about seven months, when defendant, as plaintiff claims, discharged liim from his employment. At the time of the discharge defend- ant told plaintiff he must have possession of the house, and plaintiff promised to give up the possession as soon as his wife was well enough to be removed. The plaintiff testifies that the defendant then told him he must have rent for the use of the house and that he agreed to pay it. The defend- ant refused to rent it for any definite length of time. Plain- tiff told him he wanted due notice when he must quit the premises, to which remark defendant made no reply ; subse- quently the defendant demanded rent, and plaintiff told him to deduct it from some money he says defendant owed him. About the holidays plaintiff and his wife went to visit her father, leaving their goods in the house, intending to return the next day, but the weather being bad they could not. While plaintiff and his wife were at her father's, plaintiff returned to the premises in question to feed his pigs left there. While plaintiff was thus absent, defendant entered the house and removed plaintiff's goods, from the rooms in he left them, on to the stoop and into a small room in 182 CASES IN THE SUPREME COURT [Dec., Doyle v. Gibbs. the wood-shed, and put another person with his goods into possession. The room into which the goods were put was not fastened in any way, nor is there any claim of injury to them. After plaintiff left on his visit and before he went to find his goods, he drove away his pigs and a calf he had on the premises. No demand was made of defendant before suit for the goods. The defendant on his own behalf testified there was no letting of the place for any particular term, nor was there any talk about rent, nor did he owe plaintiif anything from which rent could be deducted. The court charged the jury that the tenancy terminated when plaintiff was discharged from defendant's employ, and defendant had the right to remove plaintiff's goods unless there was a new tenancy created after the former one termi- nated, by virtue of which plaintiff had the right to posses- sion so long as he paid rent, or until a notice to quit was served. If such tenancy was created, defendant had no right to enter and put out plaintiff's goods and if he did, he was liable in this action. The only exception to the charge is in these words, the defendant's counsel excepted to that part of the charge in which the jury is instructed that the defendant was liable in this form of action. The court had given no such instruction, unless accompanied by qualifications that rendered instruction entirely proper. If the defendant is entitled to a new trial upon any ground taken or suggested at the trial, it is because his motion for a nonsuit was impro- perly denied. The motion was denied on the ground that there was evidence in the case of an agreement between the parties, after the plaintiff was discharged, that the plaintiff should remain in possession as a tenant of defendant so long as he paid rent or. until lie had written notice to quit.. In order to a proper disposition of the question raised upon this motion it is necessary to ascertain the exact relation the parties occupied toward each other at the termination of the contract of hiring. That contract and the occupancy of the dwelling-house under it did not create the relation of land 1871.] OF THE STATE OF NEW YORK. 183 Doyle v. Gibbs. lord and tenant, but that of master and servant only. This was directly decided in Hay wood v. Miller (13 Wend., 90) ; Doe v. Derry (38 E. C. L. 291). If the relation of landlord and tenant did not exist, the plaintiff was not in possession as a tenant holding over, after the expiration of his term, bat he was in as a servant dis- missed from service, but incapable by reason of the condition of his wife from removing. It was in this condition of things that the plaintiff asked permission to remain until his wife could get ready to leave, and that the plaintiff said he should look to him for rent. If an agreement is to be implied from the facts stated by the plaintiff, it must be an agreement that plaintiff remain, paying rent, until his wife was well enough to remove. No other time was talked of or desired by the plaintiff, and it is obvious that defendant only consented to plaintiff's occupancy until that event occurred. The plaintiff was not a tenant at will nor at suf- ferance, but until the happening of a future contingent event. It was shown that in December the wife was well enough to leave on a visit to her father, and that the plaintiff removed a part of his property to her father's. In the absence of all evidence to the contrary, these facts established the wife's ability to remove, and, if so, the time for which plaintiff had permission to occupy had expired, and the defendant had the right to enter and put out the plain- tiff's goods. The learned judge would seem to have been of opinion that the new letting was to terminate at the will of the defendant, and hence plaintiff was entitled to notice to quit ; but such is not the proof. The plaintiff was permitted to occupy only until his wife was well enough to remove. (Woodfall, 228 ; 3 Hill, 90 ; 2 Sup. U. S. Dig., 257, 14 ; id., 289, 56 ; id., 295, 185 ; 12 J. R, 182 ; Woodf., 181.) Assuming that the acts and declarations of the parties would justify the jury in finding an agreement that plaintiff might remain in possession, paying rent, the question then arises whether defendant was under any legal obligation tc 184 CASES IN THE SUPREME COURT [Dec., Doyle v. Gibbs. give him notice to quit ? The general rule is that notice to quit is necessary when the time at which the tenancy is to terminate is uncertain. Thus, in cases of tenancy at will, notice is indispensable. It seems to me this rule has no application to a case like the one before us. The relation of landlord and tenant never existed between the parties. Cer- tainly not, prior to the plaintiff's discharge, and the new arrangement was, on the part of the defendant, a mere license to occupy. In "Woodfall's Landlord and Tenant (236) it i& said that if a tenant whose lease has expired retains possession pending a treaty for another lease, he is not a tenant from year to year, but at will, so strictly as that no notice to quit is necessary. In Jackson v. Parkhurst (5 J. R., 128) the facts were similar to those set out in the preceding extract, except that in this case the lessor's agent gave the tenant permission to occupy until he heard from the lessor. The agreement in this case^ was no more distinctly proved than in Ballentine v. McDowell (2 Scam., 28). It was proved in that case that defendant, while in possession under a former agreement, had a conversation with plaintiff 's agent, in which the latter desired the former to pay a certain amount of rent. This defendant refused to do, but offered a smaller sum, which was not agreed to, but defendant con- tinued to occupy. It was held the evidence was insufficient to establish the relation of landlord and tenant, or to support an action for use and occupation. In McGee v. Gibson (IB. Munroe, 105) it was held that when a farmer employs a laborer for a year at a stipulated price per month, and agrees to provide him a house at two dollars per month, payable monthly, the laborer is a tenant at will, and when he ceases to labor his tenancy is deter- mined, and no notice to quit is necessary. I am of opinion that the ruling at the Circuit was errone- ous upon each and all of the following grounds : 1st. The plaintiff was not a tenant holding over, but a mere servant, suffered to remain in his master's house after his time 1871.] OF THE STATE OF NEW YORK. 185 Hassan v. The City of Rochester. of service had ended, and therefore the relation of landlord and tenant never existed between them. 2d. There was not sufficient evidence to justify the jury in finding an agreement to let the premises to the plaintiff. 3d. If there was an agreement it was to continue until the plaintiff's wife got well, and that event occurred before the defendant entered. 4th. If there was a tenancy, it was not one requiring notice to quit in order to terminate it. Enough was done by the defendant to subject him to an action of trespass for his unlawful interference with the pro- perty, if his entry had not been justified. (Foulder v. Wil- lougby, 8 M. & W., 540.) The order refusing a new trial is reversed, and a new trial granted, costs to abide the event. New trial granted. WILLIAM E. HASSAN et al. v. THE CITY or ROCHESTER et al. . . 6 185 65a 516 (GENERAL TERM, FOURTH DEPARTMENT, DECEMBER, 1871.) Whether the designation, by the common council of Rochester, of the por- tion of that city deemed to be benefited by a public improvement upon which they have determined, and their order directing the assessment upon all the owners and occupants of lands and houses within the por- tion so designated (see charter, L. 1861, 191, 192, etc.), prohibits the assessors from omitting from assessment such parts of the designated territory as they regard as receiving no benefit, quere. And whether the question may be raised -in an action to have the tax declared void, and to restrain its collection, the common council having confirmed it. But 208 of the charter, which declares all assessments for local improve- ments valid, notwithstanding irregularity, omission or error in the pro- ceedings relating to the same, renders the assessments valid although > such omission is made. THIS was an action by certain citizens and property owners of the city of Rochester whose property had been assessed for VOL. VI. 24 186 CASES IN THE SUPREME COURT [Dec., Hassan v. The City of Rochester. the expense of opening a street in that city, and was brought against the city, its treasurer and collector of taxes, claiming to have the assessment declared void, a reassessment and an injunction. The complaint set forth the powers of the common council of the city in respect to improvements of streets and the pro- visions of the city charter concerning their duties therein, and alleged in substance that the common council, in pur- suance of the charter, had determined to improve Oak street, in said city, and on the 2d May, 1865, did enact and publish an ordinance for that purpose, by which it was substantially directed that the whole expense of the improvement, accord- ing to estimates made by the city surveyor, should be defrayed by an assessment upon the owners of houses and lands to be benefited, and which specified a portion of the city which the common council deemed -would be benefited, and, after other provisions concerning the manner of payment, proceeded to direct the assessors of the city, as persons not interested, to make an assessment upon all the owners and occupants of lands and houses within the designated portion of the city of the amount of expense in proportion as nearly as might be to the advantage which each should be deemed to acquire by the making of the improvement, and it directed the assessors to meet at a time and place specified for the purpose. And the complaint proceeded to state that the assessors therein named did not follow or obey the ordinance in respect to assessing the owners of territory in the ordinance desig- nated, but omitted from the assessment a very large proportion and upward of 900 feet of territory fronting on Oak street ; that the whole frontage assessed was 6,251 feet, and the expense per foot was four dollars and thirty-one cents. That in consequence of such omission the expense of such improvement had fallen wholly upon the property assessed, the burden of which was increased thereby, inasmuch as the expense per foot in case the whole territory was assessed would be only some three dollars and fifty-nine cents per foot. That the plaintiff's tax or assessment was greatly above 1871.] OF THE STATE OF NEW YORK 187 Hassan v. The City of Rochester. what it would have been had the order of the common coun- cil been complied with, and the regulations of the charter set forth, been followed ; and it referred to a schedule annexed to show the difference which the mode of assessing made to each of the plaintiffs. It also alleged that the plaintiffs were informed and believed that the assessment had been ratified and confirmed by the common council. And that no other proceedings were had by the common council, under the provisions of said charter or otherwise, modifying or in any degree changing the terms, conditions or provisions of the ordinance, or changing in any manner the territory to be assessed for the improvement. And that the city treasurer had issued his warrant to the defendant, a collector appointed by him, commanding him to collect the amounts unpaid upon the assessment, with interest and collector's fees ; and that Moshier was proceeding to col- lect the assessment as commanded, and threatened to sell the goods and chattels of the plaintiffs, if the assessments were not paid. That the assessments were liens upon the lands of the said plaintiffs, respectively, and affected their disposition of them. The defendants joined issue, asserting the legality of the proceedings and the validity of the assessment. Upon the trial the plaintiffs' counsel opened the case with a statement of the facts set forth in the complaint, and that he would prove as alleged ; whereupon the defendants' counsel moved for a nonsuit, on the ground that the action of the assessors and common council was conclusive, and could not be reviewed in this action ; and, for the purpose of the motion, admitted the facts in the complaint to be true. The court granted the motion, and the plaintiffs excepted. The court ordered that the case and exceptions be heard in the first instance at the General Term, and continued a pre- liminary injunction which had been granted. Upon hearing at the General Term, the court denied a 188 CASES IN THE SUPREME COURT [Dec., Hassan v. The City of Rochester. new trial. An opinion by Mr. Justice TALCOTT was rendered as follows: " TALCOTT, J. The common council of the city of Rochester initiated proceedings under the revised charter (Laws of 1861, chap. 143) for the purpose of paving a part of Oak street, and constructing crosswalks and sewers therein. By section 165 it is provided that before the common council shall determine to make any such improvement, they shall cause an estimate to be made, and, by an entry in their minutes, describe the portion or part of the city which they deem proper to be assessed for the expense of such improvement. They shall cause notice to be published, specifying such improvement, the estimated expense thereof, and the portion or part of the city to be assessed for such expense, and requiring all persons interested in the subject to attend the common council at the time appointed in such notice. At the time appointed in the notice they shall proceed to hear the allegations of the owners and occupants of houses and lots situated within the portion or part of the city so described, and, after hearing the same, shall make such further order in respect to such improvement as they shall deem proper. By section 191, whenever the common council shall determine that the whole or any part of the expense of any public improvement, not requiring the taking of any land by said city, shall be defrayed by an assessment upon the owners and occupants of houses and lands to be benefited thereby, they shall declare the same by an entry in their minutes, and, after ascertaining the estimated expense, they shall declare, by an entry in their minutes, whether the whole, or what portion thereof, shall be assessed on such owners and occupants, specifying the sum to be assessed and the portion of the city which they deem will be benefited by such improvement. By section 192 they are required thereupon further to make what is termed in section 191 a final ordinance, namely, an order reciting the improvement intended to be made, the amount of expense to be assessed, and the portion or part of the city on which the same is to be assessed; and directing the assessors to 1871.] OF THE STATE OF NEW YORK. 180 Hassan v. The City of Rochester. make an assessment upon all the owners and occupants of lands and houses within the portion or part so designated, of the amount of expense in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire by the making of such improvements, which order shall be cer- tified by the clerk and delivered to one of the assessors, with the map or profile of the proposed improvement. Section 195 directs that the assessors shall proceed to make the assessment ( according to said order,' and return the roll to the council, who shall appoint a time at which it will hear appeals from the said assessment. By section 197 the clerk is required to pub- lish notice of the return of the assessment to his office, and that the common council will, on such day as they shall have appointed, proceed to hear appeals from said assessment. Section 198 provides that, on the day appointed for that pur- pose, the common council shall hear the allegations and proofs of all persons who may complain of such assessment, and may rectify and amend the said assessment list in whole or in part, or may set the same aside and direct a new assess- ment, &c., or may ratify and confirm the assessment without any corrections, or with such corrections therein, as they may think proper. And section 199 declares that every assess- ment so ratified and confirmed by the common council shall be final and conclusive. The complaint substantially avers the proceedings to have been regular and according to the charter, down to the time when the assessors, entered upon their duties, but that the assessors, instead of assessing the expense upon < all the owners and occupants of lands and houses within that portion or part so designated,' in point of fact omitted to assess any portion of the expense on upwards of 900 feet frontage out of 6,251 feet, which was the whole territory designated by the common council, and did not, as provided by the section 195, make the assessment ' according to the said order ' of the council, but assessed only a part of the persons and property embraced within the purview of the said order, by reason whereof the residue of the owners and occupants are assessed more than their 190 CASES IN THE SUPREME COURT [Dec., Hassan t>. The City of Rochester. due proportion of the expense of the proposed improvement. The complaint alleges that the common council has ratified and confirmed the assessment, without in any manner modi- fying the order, or its terms or provisions, and without chang- ing in any mariner the territory to be assessed for the improvement ; that the plaintiffs, who are some of the parties assessed, and severally the owners of lands which are affected by the lien of the assessment, have applied to the common council to correct the assessment. That the council referred the matter to a committee, and the report of the committee is made a part of the complaint. The report admits the error of the assessors, and the injustice of the assessment, and recommends that the action of the council confirming the assessment be reconsidered, and the assessors be directed to make out a new roll, and include the omitted lands in their assessment. But the complaint alleges that the council has taken no action to modify, correct or set aside the assess- ment, and that the city treasurer his issued his warrant to collect the unpaid portions of the assessment, and the collec- tor is proceeding to collect the assessment, and that the assessment purports to be a lien on the lands owned by the plaintiffs respectively. The plaintiff was nonsuited upon the ground that the complaint stated no cause of action. " The answer relies upon the proceedings. " The objection arising out of the attempt to unite the several parties plaintiff and their several interests in one action was waived, so far as the right to recover some form of judgment is concerned, by the omission to demur. The objection, that an action quid tlmet cannot be maintained, on the ground that the alleged illegality appears on the face of the proceedings, and therefore they cannot constitute a cloud upon the titles of the plaintiffs, does not apply to this case, because the city authorities may proceed to sell the land for the non-payment of the assessments, and in that case the charter provides that the certificate of sale ( 104), and the lease subsequently to be executed, shall be presumptive 1871.] OF THE STATE OF NEW YORK. 191 Hassan v. The City of Rochester. evidence of the regularity and validity of the proceedings. (Atten v. The City of Buffalo, 38 N. Y., 386.) " I think the assessment was irregular. The assessors are by the statute required to assess according to the order, and the order directs the assessment to be made upon all the owners and occupants within the designated area. If the assessors, can omit one-sixth, they can omit five-sixths, or if in their opinion one lot owner only will derive a benefit from the proposed improvement, they may assess the whole expense upon him. " It is claimed that the assessors act judicially in apportion- ing the assessment. That is true as to the amount of the entire expense to be assessed against each owner or occupant, for that is a matter for them to determine, but it is not true as to the lots to be embraced in the assessment. " The discretion to judicially determine that question is by the statute committed, not to the assessors, but to the common council ; and when the council has made the final ordinance, designating the lands upon which the expense is to be assessed, the statute is imperative that the assessors shall assess accord- ing to the order ; that is, the assessment must be spread over the whole territory designated by the common council, which alone has the power to decide as to the area which will embrace all the lands deemed to be benefited by the proposed improvement, and which the assessors cannot either enlarge or diminish, except for a provision of the statute, to which I will now advert. I think the plaintiffs' complaint states a cause of action. But at this point we are confronted by a provision somewhat novel and extraordinary in a statute which authorizes the taking of private property for public use. The 208th section of the charter contains the following pro- vision, viz. : ' And all assessments and reassessments hereto- fore made, or that hereafter may be made, for local public improvements, shall be and are hereby declared to be valid and effectual, notwithstanding any irregularity, omission or error in the proceeding relating to the same, and all questions concerning the same shall be determined in all places liberally 192 CASES IN THE SUPREME COURT [Dec., Hassan v. The City of Rochester. to sustain such proceedings, and with reference to the very right of the case, and not strictly.' " I have been greatly surprised, since I discovered this pro- vision of the statute, that no reference was made to it on the argument of the cause. I do not discover, nor was it sug- gested, that it has been in any way repealed, modified or limited. " Assuming this provision to be in force, it seems to me that it is a perfect answer to the action, and to most, if not all, similar questions that may be made as to the legality of local assessment in the city of Rochester. The case presented by the plaintiffs is clearly within the very terms of the act. " The facts alleged constitute an ' omission or error ' on the part of the assessors, notwithstanding which the statute declares the assessment shall be deemed to be valid and effec- tual. I will not inquire here what may be the limitations to be placed upon the effect of the provision I have quoted, or how far the legislature may go in this direction. Perhaps the omission of all notice to the party whose property is to be taken, and all opportunity on his part to be heard, would be beyond the power of legislation, as not being ' due process of law.' " But an this case the statute provides for full and sufficient notice to the owners and occupants who are assessed, with ample opportunity for them to be heard, and to introduce proofs with a view to correct or set aside the assessment, and these provisions of the law were, for aught that is alleged by the plaintiffs, fully complied with. " The result is that the citizens of Rochester seem, by the 208th section of the charter, to be, to a great extent, at least, deprived of the protection afforded by the ordinary rule of law, that officials who proceed to take private property for public use must comply with the substantial provisions of the statute under the authority of which they assume to act. In consequence of the provision of the 208th section which I have quoted, I think the nonsuit must be sustained, and judgment ordered for the defendants." 1871.] OF THE STATE OF NEW YORK. 193 Hassan v. The City of Rochester. Motion for new trial denied, and judgment ordered for defendant, with costs. The case was then reargued. George F. Danforth, for the plaintiffs, contended that sec- tion 208 of the charter of the city of Rochester, if applicable, was repugnant to section 9, article 8, Constitution of New York, restricting " the power of assessment in cities, so as to prevent abuses in assessments." He also cited the provisions of the city charter (L. 1861, chap. 143, 86, 191, 192), and contended that uniformity of assessment throughout the dis- trict was essential to the validity of the tax, and that no por- tion of the district could be exempted ; and he claimed that section 208 could apply only when the assessment was good in substance, citing Ireland v. The City of Rochester (51 Barb., 414). W. jb. Cogswell, for the defendant, contended that the question submitted to the assessors was of a judicial nature, and that their determination could not be reviewed collaterally (Swift v. The City of Poughkeepsie, 37 N. Y., 511 ; Bar- hydt v. Shepard, 35 id., 238 ; People v. Board of Assessors of Albany, 4 id., 154; Foster v. Van Wyck, 3 Trans. Apps., 196 ; People v. Assessors of Brooklyn, 39 id., 81) ; that the ordinance of the common council merely denned a terri- tory within which the assessors should exercise their judg- ment, and that an owner deriving no benefit was properly assessed nothing, for that was his proper proportion ; that the city, having the assessment roll of the proper officers, could not be enjoined. (Livingston v. Hollenback, 4 Barb., 9 ; Van Rensselaer v. Kidd, id., 17 ; Bouton v. City of Brooklyn, 15 id., 375 ; Susquehanna Bank v. The Supervi- sors of Broome, 25 N. Y., 312 ; Hasbrouck v. Kingston Board of Health, 3 Keyes, 481 ; Mepeck v. Supervisors of Columbia, 15 Barb., 190 ; Dodd v. City of Hartford, 25 Conn., 232.) He also claimed that the complaint was defec- tive in not stating that the owners and occupants of the LANSING VOL. VL 25 194 CASES IN THE SUPREME COURT [Dec., Hassan v. The City of Rochester. omitted premises acquired an advantage by the improvement, and cited section 208 of the charter as a complete answer to the action. Present MULLIN, P. J., and TAI.COTT, J. MULLIN, P. . The City of Rochester. such limits are benefited, and if there are any who are not benefited it is their duty to omit them altogether and assess it on those who are. If the plaintiffs' construction is right, then each lot within the prescribed boundaries must bear some part of the expense, whether in the opinion of the assessors they are actually benefited or are not. If the defendant's construction is the correct one, then the assessors are to omit from the assessment all lots not deemed by them to be benefited. "We all know that it is very seldom, if ever, that a public improvement benefits the property of every owner within the limits within which the great majority of owners are actually and materially benefited. A sewer may be indispensible to the owners of the street in which it is laid, but from the conformation of the ground it may be impossible for one or more owners to drain into it, and they may have perfect drainage in a direction opposite to that of the sewer. Can such owners be said to be benefited by the sewer 2 And if not, upon what principle can they be charged with any portion of the expense of constructing it ? In a certain sense, all the inhabitants of a city or village are benefited by every public improvement made within it, and such benefit is usually in proportion to the proximity of the personal property to the improvement and the use he is able to make of it. But the benefit of a sewer in a street to a lot of land that is so far removed from it, or is so situated that it cannot drain into it, is so small as to be incapable of estimation, and is, therefore, not liable to be assessed for the expense. . It would be useless formality to assess upon a lot a mere nominal amount toward the expense of an improvement, and a statute should not be so construed as to require such an assessment, unless its language admits of no other construction. It was indispensable that provision should be made for determining the limits within which persons should be deemed to be benefited by a public iinprovinent, the whole or any part of the expense of which should be borne by those benefited. 196 CASES IN THE SUPREME COURT [Dec., Hassan v. The City of Rochester. Instead of leaving that queston to the assessors, as is some- times done, the legislature has seen fit to confer the power on the common council. But the determination that those living within the limits prescribed by the common council is not a determination, nor was it intended to be a determination that every lot of land within such limits was benefited by such improvement. To give it such an effect would be to declare to be true what 'every person outside of the common council would not unfrequently know to be false as well as unjust. For these reasons, I am of the opinion that the determin- ation, that a specified portion of the city is benefited by a public improvement, is not and was not designed to be a determination that each and every lot within such limits is to be deemed benefited by such improvement, but it merely prescribes the boundaries beyond which benefit is not con- ferred, and within which the assessors must assess the expenses of the- improvement upon those whom they deem to be benefited. The presumption of law is, that the assessors have pro- perly discharged their duty in making the assessment in ques- tion, and the omission to assess any portion of the premises within the limits prescribed by the common council is pre- sumed to- have been because the persons or lands omitted were not deemed to be benefited by the improvement. It was incumbent on the plaintiffs to allege in their com- plaint and to prove on the trial, if the allegation was denied, that the persons or lots omitted were not omitted because they were not benefited. But the complaint contains no such allegation, nor has any such proof been made. The presumption of law, that the persons omitted were omitted because they were not benefited, must prevail, and for that reason, if for no other, the plaintiff was properly nonsuited. It is suggested, in the points of the defendant, that the lands omitted were part of the lands set apart by the State for the use of the Erie canal, but there is no proof that the lands are the property of the State. 1871.] OF THE STATE OF NEW YORK 197 Hassan c. The City of Rochester. The question, therefore, whether the property of the State can be assessed for municipal purposes, does not arise. By section 199 of the charter of 1861, it is declared that every assessment, when ratified and confirmed by the com- mon council, shall be final and conclusive. This precludes any examination of the propriety of the assessment by this court or other tribunal, until it is set aside in a proceeding to review it. If it is void for any cause, the confirmation by the common council cannot make it valid ; but, unless it is void, it must be enforced. The learned counsel, who applied for a reargument, has failed to suggest any satisfactory reason for holding that the provisions of section 208 of the charter, which declares that all assessments, made after the passage of the act of which it forms a part, for local improvements, shall be and are thereby declared to be valid and effectual, notwithstanding any irregu- larity, omission or error in the proceedings relating to the same, does not apply and cure all irregularities and omissions in the assessment under consideration. This is an assessment for a local public improvement made after the passage of the charter ; and it is, therefore, within the very words of the section. If it does not apply to this assessment, and cure all irregularities, and omissions, and errors in it, then it is senseless and unmeaning. The counsel for the plaintiff assumed that both the judges who heard the argument on the appeal concurred in the con- clusion arrived at by Judge Talcott, that a determination of the common council that a portion of the city was benefited by the improvement, subjected every lot within that portion to assessment This is a mistake I did not concur in that proposition, but did in regard to the effect of section 208. The motion for a reargument was denied, with ten dollars costs. 198 CASES IK THE SUPREME COURT [Dee, Tifft v. Phoenix Mutual Life Insurance Co. JOSEPH C. TIFFT, Respondent, v. THE PHCENLS: MUTUAL LIFE INSURANCE COMPANY, Appellant. (GENERAL TERM, FOUR DEPARTMENT, DECEMBER, 1871.) A life insurance company's agent who had authority to solicit and make contracts for its insurances agreed that his company would insure the plaintiff by a policy containing special provisions for refunding the money paid for premiums, and received the plaintiff's note in part pay- ment ; the company tendered a policy without the provision, which the plaintiff refused. Held, that the transaction did not constitute a contract between the plaintiff and the company. Also, that the plaintiff could recover from the company the amount of his note and interest, which he had paid to a bonafide holder, the transferee of the company. THIS was an appeal by the defendant from a judgment for the plaintiff upon the verdict of a jury, and an order refusing a new trial. The facts are stated in the opinion. Wynn & Porter, for the appellant, cited Nixon v. Hyserolt (5 Johns. R., 58) ; Sanford v. Hardy (23 Wend., 267) ; Stephenson v. N. Y. and Harlem R. R. (2 Duer, 341) ;. Tkur- man v. Wells (18 Barb., 500). D. O^Brien, for the respondent, cited Yalten v. The Nat. Fund Life Ins. Co. (20 IS". Y., 32) ; Devendorfv. JSeardsley (23 Barb., 657) ; Bennett v. Judson (21 K Y., 238) ; Elwell v. Chamberlain (31 id., 611). Present MULLIN, P. J. ; JOHNSON and TALCOTT, J J. MULLTN, P. J. This action was brought to recover of the defendant, a life insurance company incorporated in the State of Connecticut, and doing business in this State in conformity to the laws of State prescribing the conditions on which foreign insurance companies are permitted to do business in this State, to recover the amount of a premium note given by the plaintiff to defendant's agent under the following circum- stances, as claimed by the plaintiff, viz. : David W. Bartlett 1871.] OP THE STATE OF NEW YORK. 199 Tifft v. Phoenix Mutual Life Insurance Co. of Watertown, in the county of Jefferson, was defendant's agent for the purpose of soliciting applications for life insur- ance in said county, and for the purpose of making contracts for policies of insurance, delivering policies, and receiving premiums in cash or notes, as he should deem most advisable. That on or about the 22d February, 1868, said agent soli- cited plaintiff to apply for insurance on his life, in said com- pany, and, after some negotiation, it was agreed that plaintiff should pay to said agent $125 in cash, and give him his (plaintiff's) note for $120, yearly, during his life, and in con- sideration thereof said company would insure plaintiff's life for the term of his natural life to the amount of $5,000, and if, at the end of three years, the plaintiff desired to terminate the policy, the defendant would do so, and repay to him the amount he should then have paid, without interest ; and it was further agreed that the provision or the right to termi- nate the policy, and that the defendant would, if terminated at the end of three years, repay the premium the plaintiff should then have paid to the defendant, without interest, should be inserted in the policy. In a few days after this arrangement was made, an agent of defendant offered to plaintiff a policy of insurance on his life, but it did not contain the provision as to the right of plaintiff to terminate and the obligation of defendant to repay, and for that reason the plaintiff refused to receive it, and never has accepted said policy, nor did it ever become a bind- ing agreement between the parties. The defendant insisted and gave evidence tending to prove that the representation made by the agent to the plaintiff was that, at the end of three years, if the plaintiff desired it, the defendant would cancel the first policy and issue a paid-up policy for the amount of the premiums paid, payable at plain- tiff's death, and defendant denied that an agreement that the provision in reference to terminating the policy and repaying the premium was ever made. The note given by the plaintiff to defendant's agent for part of the premium was transferred soon after it was given 200 CASES IN THE SUPREME COURT [Dec., Tifft v. Phoenix Mutual Life Insurance Co. to a bona fide holder, and at maturity was paid by the plaintiff. Five witnesses were called on the part of the plaintiff. The plaintiff and his daughter testify to the agreement that the policy should contain the clause that plaintiff, at his elec- tion, at the end of three years, might relinquish the policy, and the defendant would repay the amount paid. The plain- tiff's wife and one Tifft testify that there was an agreement that the money paid by plaintiff should be returned at the end of three years, if plaintiff elected to have it. The agent, Bartlett, is the only witness on the part of the defence, who testified as to what occurred at the time the application was made, note given and money paid. He denies that there was any such agreement made as was testified to by plaintiff's witnesses, and says the only agreement made was the one contained in the policy, and the only representa- tion made by him was that, at the end of three years, if plain- tiff desired it, he could relinquish his policy and receive a paid-up policy for a part of the amount paid by him. The jury found a verdict for the plaintiff for the amount of the note and interest. The defendant moved, on the judge's minutes, for a new trial and from the judgment entered, and from the order refusing a new trial the defendant appealed. The transaction between the plaintiff and Bartlett, the agent of defendant, at the time the premium was paid and plaintiff's application taken, did not make a contract that bound the defendant. The agent had no power to bind it by an agreement that any provisions other than those adopted by the company should be inserted in its policy. All that the agent could do was to receive the application of the plaintiff, and the premium required by the rules of the company, and transmit them to the defendant, with notice that he and the plaintiff had agreed that a provision should be inserted in it allowing him to surrender his policy at the end of three years, and that the company would repay the premium paid by him. 'The defendant was at liberty to accept or reject this 1871.] OF THE STATE OF NEW YORK. 201 Perry v. Lorillard Fire Insurance Co. proposition, as it was but a proposition. If it declined to insert the provision in the policy, the arrangement as to the insurance was at an end, and the plaintiff was entitled to have his note and money back ; and, if the defendant refused to deliver them on demand, or should have transferred the note to a bona, fide holder, it would be liable for the amount thereof. But if, as is probable upon the face of the transac- tion, that the agent never communicated to the defendant that the plaintiff desired the provision as to cancellation and repayment inserted in the policy, and it issued a policy with- out such provision, it was for the plaintiff to say whether he would accept it. If he refused, as it is proved he did, there was no contract of insurance effected, and the plaintiff was entitled to a return of his money and note. The questions in the case were questions of fact, decided by the jury upon conflicting evidence, and the verdict cannot be disturbed. The weight of evidence is with the verdict and not against it. If the agent was acting honestly with the plaintiff, and tes- tified truly on the trial, and the plaintiff and his witnesses also told the truth, there was an honest mistake on both sides ; the plaintiff supposing that he was entitled to rescind and be repaid, the defendant supposing that the only right plaintiff had was to surrender and receive a paid-up policy. This was the mistake the court referred to in his charge, and, thus understood, the charge was correct. The judgment and order must be affirmed. CHAHNCEY PERKY v. THE LORILLABD FIEE INSURANCE Co. 6 201 (GENERAL TERM, FOURTH DEPARTMENT, DECEMBER, 1871.) eia 214 An assignment in bankruptcy ( 14) works a change of title to real pro- perty, within the condition in an insurance policy that a sale or transfen or change in title or possession, by legal process, judicial decree, or vol untary transfer or conveyance, shall render the policy void. LANSING VOL. VI. 26 202 CASES IN THE SUPREME COURT [Dec., Perry v. Lorillard Fire Insurance Co. THIS was a motion by the plaintiff for a new trial upon a case and exceptions, ordered to be heard in the first instance at the General Term. The facts are stated in the opinion. G. F. Danfortk, for the plaintiff, cited 3 Pars, on Con., 472, 480, 488 ; 1 B. & A., 593 ; Ontario Bank v. Mumford (2 Barb. Oh., 596) ; 4 Nat. Bank Reg., 110 ; 2 Sweeney, 475 10 Law Reg. (N. S.), 333; Copeland v. Stevens (I B. & A., 592) ; Hitchcock v. N. W. Ins. Co. (26 K Y., 68 ; 2 Am. Lead. Cases, 1 ed., 316) ; Wilson v. Hill (3 Mete., 70) ; Strong v. Manf. Ins. Co. (10 Pick., 40) ; Adams v. Rockingham Mu. Ins. Co. (29 Me., 292 ; 6 Gush., 342). W. F. Cogswell, for the defendant, cited Lappin v. The Charter Oak Ins. Co. (58 Barb., 325 ; 43 N. Y., 389) ; Gros- venor v. The Atlantic Fire Ins. Co. (17 N. Y., 391). Present MTJLLIN, P. J. ; JOHNSON and TALCOTT, JJ. MULLIN, P. J. This action was brought on a policy of insurance issued by the defendant to one James Cochrane, insuring him against loss by fire upon a brick dwelling-house in the city of Rochester, for one year from the 14th Decem- ber, 1869. The policy provided that the loss, if any, should be paid to the plaintiff. The policy contained the condition that if the property " shall be sold or transferred, or any change take place in the title or possession, whether by legal process or judicial decree, or voluntary transfer or conveyance, then, and in every such case, this policy shall be void." On the 23d May, 1870, the building insured was damaged by fire to the amount of $2,486.75. In January, 1870, proceedings in bankruptcy were insti- tuted against Cochrane. On the first of April following, he was decreed a bankrupt, and on the 30th of the same month the register executed the usual assignment in bankruptcy, 1871.] OF THE STATE OF NEW YORK. 203 Perry v. Lorillard Fire Insurance Co. which was on the same day approved by the district judge, and by it he assigned to the assignee all the estate, real and personal, of the bankrupt, including all the property, of what- ever kind, of which he was possessed, or in which he was interested or entitled to have on the 26th January, 1870. Section 14 of the bankrupt law provides that, upon the execution of the assignment by the judge or register, it shall relate back to the commencement of the proceedings in bankruptcy, and thereupon, by operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee. The same section further provides that all rights in equity, choses in action, patent and patent rights, all debts due the bankrupt, and all liens and securities therefor, and all his rights of action for property or estate, real or personal, and for any cause of action which the bankrupt had against any person arising upon contract or from the unlawful taking or detention, or for injury to his property, and all rights of redeeming such property or estate, with the like right, title, power and authority to sell, manage, dispose of, sue for and recover, or defend the same as the bankrupt might or could have had, if no assignment had been made, shall, in virtue of the adjudi- cation in bankruptcy and the appointment of his assignee, be at once vested in such assignee. When the proceedings in bankruptcy against Cochrane, to and including the assignment to the assignee, were proved, the defendant's counsel moved for a nonsuit on the ground that by such proceedings and assignment a change had taken place in the title to the property insured, by judicial decree, and that thereupon the policy became and was void, and no action could be maintained thereon. The court granted the motion and nonsuited the plaintiff. The plaintiff now moves to set aside the nonsuit and for a new trial. The question for our consideration then is, has there been, since the issuing of the policy and before the injury of the property insured by fire, a change in the title to that property 204 CASES IN THE SUPREME COURT [Dec., Perry v. Lorillard Fire Insurance Co. by legal process, judicial decree, or voluntary transfer or con- veyance ? The proceedings in bankruptcy were not instituted by the insured, but against him by his creditors ; the change of title resulting from those proceedings was not voluntary, but com- pulsory, nor was the change of title effected by legal process. Jacobs, in his Law Dictionary, says : "process " has two significations. First, it is largely taken for all the proceed- ings in any action or prosecution, real or personal, civil or criminal, from the beginning to the end ; secondly, that is termed the process by which a man is called into any tempo- ral court, because it is the beginning or principal part thereof, by which the rest is directed or taken ; strictly, it is the pro- ceeding after the original, before judgment. In the People v. Nemns (1 Hill, 154, 169), it is said that the word "process" usually signifies a writ or warrant, but it has also the meaning given to it by Jacobs. If it could receive the meaning first given to it by Jacobs, the proceedings in bankruptcy would be legal process, and the change of title might be held to be effected thereby. But it seems to me that the term legal process, used in the policy, means what is known as a writ, and as attachment or execution on the writs usually employed to effect a change of title to property, they are, or are amongst, the processes con- templated by the policy. The bankrupt law provides no writ, nor anything in the nature of a writ, by which the title to the bankrupt property can be changed. But if the term, legal process, was to be con- strued as meaning the whole of a proceeding in a court of law, then the title would be changed by legal process. But that the words were not intended to be used in the sense of the whole proceeding in an action, is obvious from the use in the policy of the words "judicial decree " that immediately follow. The words, "legal process," mean all the proceedings in an action or proceeding ; they would necessarily embrace the decree which ordinarily includes the proceedings. 1871.] OF THE STATE OF NEW YORK. 205 Perry v. Lorillard Fire Insurance Co. By including the word decree in the condition, it is obvious that the framers of it did not understand that it was covered by the word " process." The inquiry then is reduced to this, was the title changed by a judicial decree ? By the bankrupt law, there can be no appointment of an assignee, nor conveyance to him, until the adjudication that the person proceeded against is a bankrupt; that adjudica- tion must precede any change of title of the bankrupt's property. Whether the property becomes vested in the assignee by operation of law or by the conveyance to the assignee by the judge or register, one thing is certain, it does not vest until after the conveyance to the assignee is actually made. All the proceedings in relation to the transfer of the bank- rupt's property, result from and carry into effect the decree of bankruptcy, in the same manner that the title to real estate mortgaged is changed by a decree of foreclosure. The plaintiff's counsel insists that the proceedings in bank- ruptcy produce no change in the title of the bankrupt to his property. The act declares, in the most clear and une- quivocal terms, that the title of the bankrupt to all his estate, real and personal, shall vest in the assignee. No color of title is left in the bankrupt. How then can it be said that the proceedings work no change in the title ? After the conveyance to the assignee, the bankrupt has no title to the property that he could convey to another. He had it before the assignment, and would have had it still, had it not been changed. It is said in 2 Parsons on Cont, 624, that bankruptcy operates not so minute as a grant or transfer as a sequestra- tion or forfeiture. And it is therefore insisted that there being no grant or transfer the title is not changed. It matters very little what name is given to the result produced by the adjudication in bankruptcy and assignment to the assignee, whether it has the effect of a grant or is a sequestration ; the fact is the title of the bankrupt is divested 206 CASES IN THE SUPREME COURT [Dec., Lewis . Rose. and vested in the assignee. If this is not a change of title, it would be difficult to find a name for it. It is doubtless true that the assignee has an equitable interest in the property, which may be insurable as such, but it would not be insurable under a policy obtained upon a representation that the insured had the title to the property embraced in the policy. Such an interest remaining in a bankrupt cannot prevent the adjudication, and the assignment under it, from producing a change of title. We cannot disregard the plain provisions of the bankrupt law and follow the decision of a court, however respectable, that virtually overrides the act and nullifies its provisions. We are constrained to hold that the assignment in bank, ruptcy changed the title to the property insured, and was for that reason a breach of the condition of the policy, which is therefore void. The motion for a new trial is denied. JACOB LEWIS, Appellant, v. JONATHAN ROSE, Respondent. (GENERAL TERM, FOURTH DEPARTMENT, DECEMBER, 1871.) Where a justice of the peace mistakenly determines that an offence has been committed and that there is probable cause against the accused, and issues his warrant for arrest, an action for false imprisonment will not lie for the error against the complainant A warrant is sufficient protection if it charges a crime, although in general terms. Mere delivery of a warrant, believed to be valid, by the complainant, to the officer, by whom it is executed, will not subject to an action for false imprisonment. Otherwise where the warrant is delivered with directions to arrest, if it is void. THIS was an appeal by the plaintiff from a judgment for defendant, entered upon an order denying a -motion for a judgment upon a verdict of a jury. Upon the trial the court directed a verdict for the plaintiff, 1871.] OF THE STATE OF NEW YORK. 207 Lewis v. Rose. and reserved the case for further hearing, with leave to the plaintiff to move for judgment upon the verdict, and to the defendant to move for a nonsuit. Afterward the plaintiff moved the court at Special Term for judgment, and the defendant for a nonsuit. The plaintiff's motion was denied and a nonsuit granted, with directions that the verdict be set aside and a judgment of nonsuit entered ; from this order the plaintiff appealed. The facts are stated in the opinion. Richardson & Adams, for the appellants, cited Burns v. Erben (40 K Y., 463) ; Hopkins v. Grove (7 C. & P., 573) ; 3 K. S., 5th ed., 972, 973, 8, 9, 10 ; id., 1028, 19 ; The People v. Chase (16 Barb., 495, 498) ; March v. The People (7 id., 391, 393, 421) ; Lambert v. The People (9 Cav., 578-625); 1 Chit. Or. L., 169; 3 Dew., 91 ; 13 Wend., 317; 3 R. S., 5th ed., 993, 3 ; 16 Barb., 498-500 ; Wilson v. Robinson (6 How., 110) ; Lansing v. Case (4 N. Y. Leg. Obs., 221) ; Curry v. Pringle (11 J. R., 444) ; Von Latham v. Libby (28 Barb., 339) ; 17 Abb., 237 ; Campbell v. Ewart (7 How., 399) ; Wilson v. Robinson (6 How., 110) ; Green v. Rumsey (2 Wend., 611) ; Camput v. Fulton (13 Abb., 276) ; Brown v Chantry (39 Barb., 253) ; CastU v. Duryea (32 id., 480) ; 2 Keyes, 169 ; 30 How. Pr., 591 ; Binsse v. Wood (37 N. Y., 526). Pomeroy & Southworth, for the respondents, cited 3 R* S., 5th ed., 973, 8, 10 ; 6 How., 110 ; 7 id., 339 ; 2 Blackford, 259 ; 3 Espinasse, 165 ;' Von Latham v. Libby (38 Barb., 339). Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. MULLIN, P. J. In January, 1869, the defendant applied, upon oath, to a justice of the peace of Rome, in the county of Oneida, for a warrant to arrest the plaintiff for conspiring with J. A. White and Martin A. Cook to fraudulently pro- cure the decree of the surrogate of Oneida county directing 208 CASES IN THE SUPREME COURT Lewis v. Rose. the payment of a judgment in favor of the plaintiff against Wilgus, deceased, and wlrlch judgment the said White and Cook, administrators of said WiJgus, did fraudulently pay to the said plaintiff, after said decree, and which he, said Lewis, did fraudulently receive, being the sum of $11,000. The said justice issued a warrant for the arrest of said plaintiff, White and Martin, and the same was delivered to said defendant, who delivered the same to a constable, with direc- tions to arrest the plaintiff; and the said constable did, by virtue thereof, arrest the said plaintiff in Carthage, Jefferson county, and carried him before said justice, who delayed pro- ceedings on said warrant for some days, at the expiration of which time the said plaintiff gave his own recognizance to appear at the next Court of Oyer and Terminer to be held in said county of Oneida, and he was thereupon discharged. He did appear at the said next court of Oyer and Terminer, and the grand jury not finding any bill against the plaintiff he was discharged. The complaint contains allegations that would either sus- tain an action for malicious prosecution or false imprisonment. The answer denies the complaint, and insists upon the legality of the warrant, and of the arrest by virtue of it, and, as a reason why a complaint was not made to the grand jury, that the dis- trict attorney told defendant that plaintiff had paid or recovered the debt, and that, in good faith, he believed the plaintiff guilty of the offence, as it had been proved against him on a trial before a referee, and so the referee found. On the trial the plaintiff's counsel disclaimed the intention to further prosecute the action as one for malicious prosecu- tion, but elected to treat it as orle for false imprisonment. By section 8, title 6, chapter 1, part 4 of the Revised Statutes, a conspiracy to cheat or defraud a person of any pro- perty by means which are in themselves criminal, or by any means which, if executed, would amount to a cheat, is declared to be a misdemeanor. The means charged are obtaining a false decree, and that, by virtue of such false judg- ment, the money was obtained of the estate of Wilgus. An 1871.] OF THE STATE OF NEW YORK. 209 Lewis . Rose. overt act in pursuance of the conspiracy was thus alleged and proved. It is not material to consider whether the facts sworn to before the justice were, in law, sufficient to establish the crime charged. It is enough that the justice so held, in order to protect the defendant. The justice was the officer authorized by law to entertain complaints for the violation of the crimi- nal law, and it was his province and duty to ascertain whether a crime was proved to have been committed, and, if it was, to issue his warrant for the arrest of the offender. The complainant is not answerable if the justice made a mistake in determining the question whether a crime had been committed, and whether there was probable cause to believe the person charged to be the one who committed it. The warrant recites the complaint for conspiring to obtain by fraud the decree from the surrogate, and that the admin- istrators did by fraud pay, and the plaintiff did by fraud receive moneys from the estate of Wilgus in fraud of certain creditors of said Wilgus, and commands the plaintiff's arrest. The warrant is valid on its face. It may be that it should have contained a more full description of the crime imputed to the plaintiff. But it is enough if a crime is charged, although it be charged in general terms. If the warrant was void and the defendant had directed the plaintiff's arrest, he might be liable. But merely deliver ing a warrant, believed to be valid, to an officer to execute it, does not render the person thus delivering it liable for false imprisonment. The plaintiff was properly nonsuited. The judgment must therefore, be affirmed. Judgment affirmed. LANSING VOL. VL 27 210 CASES IN THE SUPREME COURT [Dec., Clarke v. Rannie. TRACY S. CLAEKE, Respondent, v. JOHN RANNIE, Appellant. (GENERAL TERM, FOTJKTH DEPARTMENT, DECEMBER, 1871.) Crops sown during a lease, which cannot mature until after the term, may not then be gathered by the lessee. Evidence that one acting as the lessor's agent to receive the avails of a portion of the crops due from the tenant under the lease, had permitted the lessee to sow the crop, will not support the lessee's claim to reap after the term. Nor will the lessee's testimony that he had informed the lessor, upon inquiry at the time of sowing, what and where he intended to sow, support a verdict against the lessor for the crop on his refusal to allow the lessee to gather it after the term, and especially if contradicted by other testimony. THIS was an appeal by the defendant from a judgment entered on a verdict for the plaintiff, and from an order deny- ing a new trial. The facts are stated in the opinion. J. Peddle, for the appellant. E. G. Lapham, for the respondent. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. MULLIN, P. J. On the 2d March, 1864, A. P. Crandall leased to the plaintiff his farm in the town of Palmyra, in the county of Wayne, for a term of three years from the first day of April, of the same year, and longer if the parties could agree. By the lease the lessee was to have one-half of the avails of the crops. The plaintiff went into possession under said lease in April, 1864, and remained in possession until the last of March, 1867. The lessor, in December, 1864, sold and conveyed the said farm to the defendant, subject to the lease to the plaintiff. The defendant did not reside in the vicinity of the farm, and he appointed Crandall, after he, defendant, bought the farm, to receive his, defendant's, share of the avails of the mi.] OF THE STATE OF NEW YORK. 211 Clarke v. Rannie. crops, Crandall continued thus to act for defendant until in the spring of 1866, when defendant appointed one Sherman as his agent, to receive his share of the avails of the crops. In the fall of 1866, the plaintiff sowed forty acres of wheat on said farm, which he claimed the right to harvest in the summer of 1867, but which the defendant forbade him to do, but did himself harvest it and appropriate to his own use. For this conversion this action is brought. On the trial the court ruled as matter of law, that the plaintiff had no right to the wheat under his lease, as his tenancy terminated in April preceding the harvesting of it, and his right to the wheat terminated with the term created by the lease. Evidence was given on the part of the plaintiff, which plaintiff insisted tended to prove that defendant consented that he might sow the wheat, and having consented, and plaintiff having sowed it in pursuance of such consent, he was entitled in law to harvest it and to appropriate to his own use one-half of its avails. Evidence was given on the part of the defence, which it was insisted tended to prove that he gave no consent to the sowing of the wheat, and hence it was sown by plaintiff in his own wrong. The court submitted to the jury the question, whether, upon the evidence, there was a parol agreement between the parties that plaintiff might sow the forty acres with wheat, and he charged them that if there was such an agreement plaintiff was entitled to recover, otherwise not. The court further charged the jury that the plaintiff was entitled to one-half the straw. To this part of the charge the defend- ant's counsel excepted. The jury found a verdict in favor of the plaintiff for $962.62. The defendant moved for a new trial, which motion was denied. Judgment was entered on the verdict, and the defendant 212 CASES IN THE SUPREME COURT ' [Dec., Clarke v. Rannie. appeals from both the order denying a new trial and from the judgment. In order to enable us to decide whether a new trial was properly refused, an examination of the evidence given on the trial becomes indispensable. The position of the appellant is, that there was no evidence of a contract between the plaintiff and the defendant, that the former might sow forty acres of the farm with wheat in the fall of 1866, or if there is any evidence of such an agreement, it is so slight and the weight of evidence against it is so preponderating, that the verdict finding such a con- tract cannot and ought not to be maintained. The plaintiff is the only witness in the case who testifies to such an agreement, or to any fact from which such an agree- ment could reasonably be inferred. He says that in July, 1866, the defendant came on to the farm and wanted to know what fields the plaintiff intended to sow to wheat ; he told him the clover lot and the north field, then sown with oats, and the barley lot, on which barley was then growing Defendant replied that he did not think it good policy to sow wheat after oats. lie further testified that he took the seed- wheat that he sowed in the fall of 1866 from the wheat raised on the farm that season, before it was divided, and that he subsequently informed a Mr. Sherman, who was acting as agent for the defendant, that he had taken some of the wheat for seed, and no objection was made to it. This was after the wheat was sown, and after the wheat was threshed and sold. There is no proof of the authority of Sherman, except that he acted for defendant in receiving the avails of the crops. The plaintiff further testified that in the winter of 1866 and 186T, or spring of 1867, Sherman talked with him about buying his share of the wheat, and in the spring it was offered for sale at auction. Sherman said he was authorized to bid a certain sum upon it, and requested a suspension of the sale until he could ascertain how much to bid, and the sale was suspended accordingly, and he thereafter bid upon it. The defendant denies that he ever had any conversation 1871.] OF THE STATE OF NEW YORK. 213 Clarke v. Rannie. with plaintiff as to the fields he proposed to sow to wheat in the fall of 1866, and that he did not know of plaintiff 's inten- tion to sow any part of the land with wheat. It is also proved that the plaintiff said, when asked where he got per- mission to sow wheat that fall, that he got it from the lease. Sherman says he has no recollection that plaintiff ever told him, and exhibited to him a memorandum showing that he had used part of the joint wheat to sow on the farm. If he did, it was after the sowing was done. Sherman did not know, nor did lie learn from plaintiff, that he intended to sow wheat on the premises, until after the wheat \vas sowed, and then he ascertained by going on to the farm and seeing where it was sowed. He further testifies that he had no authority from defendant to bid at the auction for him, and he denies that he did bid for him. There is not in the case a particle of evidence that Sher- man or any other person was authorized to extend the term of plaintiff under the lease, or to let it to plaintiff or to any other person. The plaintiff is contradicted as to several material matters testified to by him. Laying out of view the evidence relating to dealings with Sherman as unauthorized, so far as they have any tendency to extend the plaintiff 's term or create a new one, the evi- dence on the part of plaintiff of authority of defendant to him to sow the wheat is his own, and is that the defendant, in the fall of 1866, asked him what fields he intended to sow with wheat, and he told him. It cannot be that this evidence, standing un contradicted, is enough to sustain the verdict, but as that statement is directly contradicted, as is every other tending to corroborate it, the verdict cannot be sustained. It is against the evidence, and must be set aside. The plaintiff, entitled to recover, was entitled to recover one-half of the straw. The judgment and order must be reversed, and a new trial ordered ; costs to abide the event. Judgment reversed. 214 CASES IN THE SUPREME COURT [Jan., McKinley v. Tucker. ALEXANDER McKiNLEY, Kespondent, v. SIDNEY M. TUCKEE, Sheriff, &c., Appellant. (GENERAL TEBM, FOURTH DEPARTMENT, JANUARY, 1872.) If the plaintiff in an execution treats it as properly in the officer's hands after the return day, he waives his existing right of action for its non- return. Instructions to the deputy after the return day, implying a consent that he may retain the execution, make the deputy the party's agent and dis- charge the sheriff from an accrued cause of action for its non-return. Thus where after the return day the plaintiff directed the deputy to take notes and hold them till due, and then apply them on the execution, Held, a recognition that the execution was rightfully in the deputy's hands, consent for his retaining it until maturity of the notes, and a waiver of the accrued right of action for non-return. Corning r. SouMand (3 Hill, 552), explained and approved ; McKinley v. Tucker (59 Barb., 93), overruled. THIS was an appeal by the defendant from a judgment entered in favor of the plaintiff upon the report of a referee. The case came before the referee for a retrial, granted on a previous appeal to the General Term. (See 59 Barb., 93.) S. N. Dada, for the appellant. B. G. Lewis, for the respondent. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. MULLIN, P. J. T\\vfi.fa. in the case of McKinley v. Dada et al., was delivered to Folger, the defendant's deputy, on the 28th March, 1868, and on the same day he levied upon the property, by virtue of it, of sufficient value to satisfy it. The fi.fa. has never been returned. After the return day had passed, Dada, one of the defend- ants, applied to the plaintiff for further time within which to pay the amount of the execution, and if he would give it, he (Dada) would put into the deputy's hands two promissory notes of $100 each, as security for the payment thereof. 1872.] OF THE STATE OF NEW YORK. 215 McKinley . Tucker. The plaintiff at first peremptorily refused to consent to further delay, but finally as a favor to Dada signed the follow- ing note addressed to Folger who still held thejl.fa: " HASTINGS, July 22, 1868. GEORGE FOLGER. Take the two notes of $100 each, made by Howard and indorsed by Willard Johnson, and hold same till due, and when paid apply them on execution against Merrill and Dada, and I will not hurry you on the execution. ALEXANDER McKiNLET." This note was delivered to Folger, who received the notes for the purpose for which they were delivered to him. One of the notes was paid, and the avails paid over to the plaintiff to apply on the fi. fa. The other note has never been paid ; it matured in December, 1868. This action was com- menced 23d January, 1869. On the llth December, 1868, the plaintiff wrote f to Folger, saying :" I want you to close up the^.y. Cheshire. committing the wrong ; hence a notice that should bind all persons was indispensable. An attachment against the real estate of a debtor would be practically valueless if the law did not furnish some means for preventing the debtor from selling or incumbering it ; hence the necessity of amending section 132 of the Code in 1857, so as to provide for notice of the pendency of the action in which the attachment was obtained. But the necessity of that clause in the section that provides that every person whose conveyance or incumbrance is sub- sequently executed or subsequently recorded shall be deemed a subsequent purchaser or incumbrancer is not perceived when applied to attachment cases ; and so unnecessary and unjust is it, if so applied, that I entertain very serious doubts whether this clause was designed to apply to attachment cases. In cases of foreclosure of mortgages great delay and annoy- ance were occasioned by the neglect of the grantees of the mortgagor to put their conveyances on record until after judgment of foreclosure. Being put on record before sale, the plaintiff was obliged to amend by bringing in new par- ties, and virtually going through a second litigation. It was to remedy this mischief the clause in question was enacted, and for that purpose it is appropriate and effective. It would be very convenient for sheriffs, in searching for pro- perty to levy upon by an attachment, to be informed of all pretended liens on and conveyances of the lands of the debtor ; but so would it be in the case of executions. Yet the law does not require grantees of the judgment debtor, nor his creditors by judgment or otherwise, to furnish any evidence of such grants or liens. It would seem to be more necessary in the case of judg- ments than in the cases of attachments, as in the former case a transfer of title is to be made ; in the latter, only a lien acquired. It is not necessary to the decision of this case that we should go the length of holding that the clause of section 132, defining who are subsequent purchasers and incumbrancers, 1872.] OF THE STATE OF NEW YORK. 241 Lament v. Cheshire. should be limited to cases of foreclosure. There is another principle which, if applicable to the case, is decisive of it in favor of the defendant. On the trial, the defendant proved that, upon the execution and delivery of the deed from John S. Harp to him of the premises in question, and upon payment of the purchase- money, he took possession of the premises so conveyed and has ever since claimed to hold and own the same under said deed. His deed bears date the 17th September, 1859 ; the attach- ment was levied on the 17th November of the same year. When the levy was made, the defendant was in possession of the premises, and that possession was notice to the plaintiff and all other persons, not only of his possession but of the title under which he occupied. (4 Abbott's Dig., title, Record- ing Deeds, 106, 107, 108 ; 6 id., 1. If the plaintiff claimed under a subsequently recorded deed, there would be no doubt but that the defendant's possession was sufficient notice of the defendant's prior deed, to deprive the plaintiff of any advantage arising from having his deed first recorded. I am unable to discover any distinction between that case and that of a creditor attaching the land of his debtor after notice of a prior conveyance to a bonafide purchaser for value paid. If the equities could be measured, I apprehend that of the attaching creditor would be the least. The creditor seizes the interest of the debtor, whatever it may be, and he obtains no greater interest, as a general propo- sition, than the debtor has in the property, and could not, in any case, did not a statute afford him the means of overriding the interests of some prior purchaser or incumbrancer. I do not find that this question has ever been decided or even considered in this State, and for the reason, probably, that until the amendment of section 132 of the Code, requir- ing notice of lis pendens to be filed in attachment cases, the question could have arisen. In Massachusetts, however, attachments have been long in LANSING VOL. VI. 31 242 CASES IN THE SUPREME COURT [March, Lament v. Cheshire. use, and the precise point now under consideration has been repeatedly decided. In that State, deeds are required to be recorded, and when there are two or more conveyances of the same land, the one first recorded obtains the preference over the unrecorded ones. (Farnsworth v. Child, 4= Mass., 63T.) The court, in order to protect innocent purchasers against fraud, held that notice to the subsequent grantee of the unre- corded conveyance, deprived him of the benefit the statute gave him, by reason of having his deed first recorded. And possession by the first grantee was notice to the subsequent grantee, sufficient to prevent the latter from obtaining a priority by recording his conveyance. (Farnsworth v. Child f supra; Dams v. Blunt, 6 Mass., 487.) It will be seen that the law in regard to recording deeds, and what constitutes notice to subsequent purchasers of prior conveyance of the same land, are identical with our own. In PresGott v. Heard (10 Mass., 60), it was held that when a judgment creditor had notice of an alienation of his debtor's land by a deed unregistered, and of long continued possession under it, yet caused the land embraced in such deed to be sold to satisfy his judgment, he obtained no title to the land through such sale. The precise point we are considering was decided in Priest v. Rice (1 Pick., 164). The action was in the nature of eject- ment to obtain possession of certain premises that plaintiff had purchased of one Hapgood. The deed was dated the llth December, 1820, and recorded on the 28th of the same month. On the 18th December, the defendant caused the land to be attached, and the action was prosecuted to judgment and execution levied on the land within the time required by the statute. On the trial the plaintiff offered to prove that at the time the defendant obtained the attachment, and when it was levied, he knew of the conveyance to plaintiff. This evidence wa? objected to by the defendant but received. 1872.] OF THE STATE OP NEW YORK. 243 Lament 0. Cheshire. The jury were instructed that if the defendant, when his attachment was issued and levied, knew of the conveyance to the plaintiff, they should find a verdict for the plaintiff. They did so find. The defendant moved for a new trial, on the ground that the evidence, so as aforesaid offered on the part of the plain- tiff and received, was incompetent. The motion was denied. PABKER, G. J., delivering the opinion of the court, says : The effect of a conveyance actually made and delivered, and known to be so by a creditor, is the same under the construc- tion that has been given to the statute in relation to such, creditor as it would be in relation to a second purchaser under like circumstances. He then proceeds to say that the court has in several cases held the creditor to stand on the same footing with a second purchaser, as to the effect of notice of a prior conveyance. He then says the reason is the same in both cases, for if a creditor whose debt is due will stand by and suffer his debtor to sell his land and recover the value of it from one who knows not of his claim or of his intention to bring an action upon it, and will afterward attach the same land, there is a constructive fraud upon the purchaser which, ought not to prejudice his title. The execution and delivery of the deed completes the transfer from the grantor to the grantee. The registry is to give notice, that others may not be prejudiced ; actual notice proved is to the person affected by it as useful, and ought to be attended with the same conse- quence as public notice in the registry, and implied notice arising from possession under the deed is as effectual as actual notice. The same point was decided in Chamberlain v. Thompson (10 Conn., 243). Deeming these decisions, of so learned and able courts as the Supreme Courts of Massachusetts and Connecticut, con- clusive, I will discuss the question no further. There are other questions argued by counsel which I shall briefly consider. The defendant's counsel insists, that as the sheriff derived his power to sell the land from the executions 244 CASES IN THE SUPREME COUKT [March, Lament v. Cheshire. delivered to Mm on the judgments in the attachment cases, and as they directed him to sell the interest that Harp had in the land in question on the 31st January, 1860, the day on which the judgments were docketed, the plaintiff, as pur- chaser, acquired no title to or interest in the lands, aa of any day anterior thereto ; and as that day was long after the recording of defendant's deed, the plaintiff acquired no title to or interest in the land under such sale, or the deed given in pursuance of it. The Code does not provide any mode of selling real estate seized under attachment. The creditor has but two ways to perfect his lien : One is by sale on execution under the Revised Statutes, the other in the manner provided for the sale of real estate by the same statutes in proceedings against absconding, concealed and non-resident debtors. By section 237 of the Code, the sheriff is required, in order to satisfy any balance that may remain due to the attaching creditor after applying the proceeds of perishable property that has been attached and sold, to sell under the execution so much of the attached property as may be necessary, &c. As no other execution is provided for, the ordinary execution that issues on a judgment must be the one intended. By that the sheriff is required to sell the interest which the judgment debtor had in real estate on the day of docketing the judg- ment, or at any time subsequent. The sheriff has no authority to sell except such as is derived from his process. As the judgment was docketed on the 31st January, 1860, and the attachment levied on the 18th November, 1859, it follows that the plaintiff acquired by his purchase no interest in the land of a day earlier than the 31st January. It would seem that the legislature must have intended that a special execution authorizing a sale of the debtor's interest as of the day of the levy of the attachment might be issued as a sale as of that date seems indispensable in order to give the creditor the full benefit of his lien. But no such execution is authorized and none can be issued unless the courts assume legislative power and authorize it. If, however, such an exe- W72.] OF THE STATE OF NEW YORK. 245 Lamont v. Cheshire. cution cannot issue, a court of equity may protect the credi- tor's lien from the levy of the attachment to the recovery of the judgment. The plaintiff, having sold on his execution in pursuance of the Revised Statutes, acquired no interest in the property earlier than 31st January. I am of opinion that in cases in which an attachment is issued, the sale on the execution ought not to have the force and effect of a sale upon the execution provided by the Code, but should have the force and effect of a sale by trustees in cases of attachments against absconding debtors. I am led to this conclusion by two considerations, and these are : 1st. That if, as I have shown, the sale is made in the ordi- nary way, the creditor loses the benefit of the lien acquired by his attachment, as the sale can only be of the interest the debtor had on the day of docketing the judgment, while the sale by the trustees is the interest of the debtor on the day the attachment was levied. Such a sale fully protects the creditor, and avoids the necessity of a resort to a court of equity to protect and enforce the lien from the levy of the attachment until the docketing of the judgment. 2d. The Revised Statutes reserve to every debtor whose land is sold on execution the right to redeem it for the term of twelve months from the sale. This right of redemption is a valuable interest in the land and may be seized on an attachment by the debtor's creditors. Now, unless the creditor bids at the sale on the execution the full amount of his debt, he will lose so much as the amount falls short of the debt, and the excess of the value of the premises, over the amount bid, is taken by the attaching creditor. This case affords a striking illustration of the loss the first attaching creditor may sustain. Assuming the land to be worth the amount paid for it by the defendant, the debtor had an interest in it of $2,500 over and above the plaintiff's bid; this a subsequent attaching creditor would have been entitled to. 246 CASES IN THE SUPREME COURT [March,. Lament v. Cheshire. It may be said that it is the fault of the creditor if he allows the land to be bid off for less than the amount of his debt. But it must be remembered that the bidders at such a sale are bidding entirely in the dark ; they cannot know accu- rately the extent of the claims against it or the amount of litigation they may be compelled to engage in,, in order to perfect title to the property. Hence it is that creditors rarely bid the amount of their liens on sales of land on execution. When the sale is without the right of redemption, each bidder is reasonably certain that the title acquired is valid,, or, if there are any defects in it, he knows or may know what they are. It seems to me, therefore, that a special execution should be issued in attachment cases, and that such execution should direct the sale of the debtor's interest in the attached prop- erty as of the day of the levy of the attachment. I am of opinion that the plaintiff acquired no title by the sale under which he claims. The defendant's counsel insists that as, by 132 of the Code,, subsequent purchasers and incumbrancers are bound by all pro- ceedings in the action taken after the filing of the notice of Us pendens to the same extent as if they were parties to the action, the notice is of no force or effect upon the defendant in this action, as the judgment in the action, had he been a party, would not have bound him or affected him in any manner. I do not think this clause of the section has any application to attachment cases. But the clause of the section that pro- vides that a purchaser or incumbrancer whose conveyance is executed or recorded after filing the notice of Us penden, is a subsequent incumbrancer or purchaser,, does affect him very seriously. If the grantee who has not recorded his deed is a purchaser subsequent to the attaching creditor, it necessarily follows that he takes the land subject to the creditor's lien, and that result does not depend upon the event of the action unless the creditor is wholly defeated, but upon the express provision? of the statute-. 1871.] OF THE STATE OF NEW YORK. 247 Pullar v. Easton. I cannot agree with the counsel that the clause in question conflicts with any provision of the Constitution. Substantially the same provision is contained in the record- ing acts, yet no one has ever seriously claimed the legislature had not power to subordinate the rights acquired under an unrecorded deed to those under one that has been recorded, although the former may have been first executed and delivered. The motion for a new trial must be granted^ costs to abide event. New trial granted. WILLIAM PULLAK v. HAKVEY P. EASTON et al. (GENERAL TERM, FOURTH DEPARTMENT, NOVEMBER, 1871.) Plaintiff contracted with defendants to work for them for three years at a specified price, and was to have the right to use the house upon the pre- mises where he was to labor, for himself and family to live in, for the same term. And it was further agreed between them as follows : " That should the party of the first part (the defendants) sell the premises before the expiration of this contract, they are to pay the said P. (the plaintiff) the sum of three hundred (300) dollars, provided said P. cannot make a satis- factory bargain with the purchaser to stay on the premises." Before the expiration of the three years the defendants sold and conveyed the premi- ses and put the purchaser into possession. Plaintiff continued on the premises in the employ of the purchaser ; and the house, up to the time of trial of this action, which was brought to recover the stipulated sum of $300. When the purchaser went into possession, he proposed to plain- tiff to continue him in his employ, on the terms prescribed in the con- tract, and plaintiff refused to accept such proposition, but offered to stay for the residue of the term, on other terms and conditions which he sub- mitted in writing to the purchaser, who refused to accept the same, and plaintiff continued to work for the purchaser, without any specific agree- ment between them as to the terms of his employment up to the time of the trial. Held, that plaintiff having continued to remain on the premises and work for the purchaser, and being entitled to receive for his services what they were worth, must be deemed to have made with the purchaser a contract satisfactory to himself, and therefore he could not recover. As plaintiff had been offered by the purchaser the same terms contracted for by him with the defendants, he would, it seeins, be deemed in law to lM8 CASES IN THE SUPREME COURT [Nov., Pullar v. Easton. have refused a " satisfactory " offer within the scope and meaning of the contract provision. Held, also, that the intention of the parties to the contract was to indemnify the plaintiff against loss and damage in case he should be thrown out of employment, and a place to live in on the premises by means of defend- ants' sale of them before the expiration of the term, and to fix and settle the measure of such loss and damage in such event ; and not to enable the plaintiff to speculate or make a profit to himself by exacting better terms, or such other terms as he might choose to dictate. MOTION for a new trial upon a case and exceptions, ordered to be heard in the first instance at the General Term. The facts are stated in the opinion. D. J. Sunderlin, for the plaintiff. H. M. Stewart, for the defendant. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ . By the Court JOHNSON, J. By the contract on which this action is brought, the plaintiff was to work for the defend- ants for the term of three years at a price specified, and had the right in addition to use the dwelling-house on the premi- ses where he was to labor, for himself and family to live in, for the same term. The concluding part of the contract is as follows : " It is further agreed that should the party of the first part sell said premises before the expiration of this contract, they are to pay said Pullar the sum of three hundred (300) dollars, pro- vided said Pullar cannot make a satisfactory bargain with the purchaser to stay on the premises." The contract was entered into the first of May, 1868. On the 17th of July, 1869, the defendants sold and conveyed the premises and put the purchaser in possession. The plaintiff remained and continued on the premises in the employ of the purchaser, and in the house up to the time this action was brought and was there at the time of the trial of the action. The action was brought upon the provision of the contract above recited to recover the stipulated sum 1871.] OF THE STATE OF NEW YORK. 249 Pullar v. Easton. of $300. The question is whether the contingency upon which the defendants were to become liable to pay had hap- pened when the action was brought. It appears from the evidence on the part of the plaintiff, that when the purchaser of the premises went into possession he proposed to the plaintiff to continue him in his employ on the same terms mentioned and prescribed in the contract, and that the plaintiff refused to accept such proposition, but offered to stay for the residue of the term on other terms and conditions which he deemed more advantageous to him- self. The plaintiff submitted his propositions in writing to the purchaser on the llth of October, 1869, and the purchaser refused to accept the same, and no definite agreement or arrangement was made. The plaintiff, however, still contin- ues to reside there and to work in the same employment for the purchaser without any agreement in regard to compensa- tion except such as the law will imply. Upon this state of facts I am of opinion that the contingency on which the defendants were to pay the stipulated sum of $300 has not happened. This stipulation between the parties must have a reasonable interpretation, so as to conform to the manifest intention of the parties, if the language employed by them will admit of such interpretation. The clear and manifest intention of the parties in this stipu- lation was to indemnify the plaintiff against loss and damage in case he should be thrown out of employment and a place to live in on those premises by means of their sale of the same before the expiration of the term, and to fix and settle the measure of such loss and damage in such event. It was clearly no part of the object or purpose of this stipulation to enable the plaintiff to speculate, or make a profit to himself, by exacting better terms, or such other or different terms as he might choose to dictate. Such a construction of this pro- vision would render this stipulated sum a mere bonus, as it would enable the plaintiff to exact it at his pleasure without any consideration of loss or injury to his interests whatever. LANSING VOL. VI. 32 250 CASES IN THE SUPREME COURT [Nov., Pullar v. Easton. The proviso is, that " he cannot make a satisfactory bargain with the purchaser," not that he will not. How was it intended that it should be satisfactory ? Surely not to the plaintiff's desires, or greed of gain, but reasonably satisfac- tory, according to the usual compensation for such labor, and the standard they had fixed between themselves by the agree- ment of which this provision was a part. A bargain on the same terms would be deemed in law a satisfactory bargain, within the scope and meaning of this provision. This wag offered and refused by the plaintiff. It is not true therefore that the plaintiff could not make " a satisfactory bargain with the purchaser to stay on the premises," within the true intent and meaning of those terms. The agreement he entered into with the defendants was such as he chose to make, and must be deemed to have been a satisfactory one to him, and it was in view of the terms of that agreement and as part of it that the provision in question was inserted. The term " satisfac- tory" must be interpreted and defined by its connection with the contract and the surrounding circumstances. But again, the plaintiff has not lost either employment on the premises or a dwelling place for himself and family. He still contin- ues there as before, but whether on more or less advantageous terms than were secured to him by the contract, or than would have been secured to him had his propositions been accepted, does not appear and cannot be shown. What the law will award him as a reasonable compensation, in case of disagree- ment between him and his employer, is as yet unknown. They have been unable thus far to agree upon specific terms, but have consented to continue the relation upon such terms as the law will imply. As the plaintiff remains on the premises and continues in the employment of the purchaser on such terms, the law will presume them to be "satisfactory" and that he is content with the arrangement within the purview of the contract. The law certainly, as we must presume, will give the plaintiff all he ought justly to have by way of compensation, and com- pel him to be satisfied with it. There is nothing in the case 1872.] OF THE STATE OF 3STEW YORK. 251 Buck v. The City of Lockport. to show that the plaintiff has not remained on the premises, in the employment of the purchaser, voluntarily and from choice and not from necessity, or from inability to obtain other employment. On the whole case we think that no cause of action waa made out by the evidence, and that the plaintiff was properly nonsuited. A new trial must therefore be denied. New trial denied. JOHN L. BUCK, Eespondent, v. THE Cnr OF LOCKPOBT, Appellant. (GENERAL TERM, FOURTH DEPARTMENT, MAY, 1872.) The charter of the city of Lockport provides for the presentation of accounts against the city to the common council, and that they shall bo referred to a committee who shall examine into them and report favor- ably or adversely to their allowance, with their reasons ; and that the common council shall then hear, examine and determine upon the same, in like manner as a board of town auditors. If the claim is allowed, the common council are to make an order for its payment, &c. Held, an account against the city having been presented to the common council and by them referred to the proper committee, who did not report thereupon for more than seven months after its presentation, that the claimant was not obliged to proceed by mandamus to compel tht common council to examine and allow the claim and make an order foi its payment, but that an action would lie therefor against the city. The case of corporations and ministerial officers is an exception to the general rule that a mandamus will not lie where the party has a remedy by action. They may be compelled to exercise then- functions according to law by mandamus, even though the party has another remedy by action for neglect of duty. APPEAL from a judgment of the County Court of Niagara county, affirming the judgment of a Justices' Court. The facts are stated in the opinion. James F. Fitts, for the appellant. John L. Buck, for the respondent. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. 252 CASES IN THE SUPREME COURT [May, Buck v. The City of Lockport. By the Court JOHNSON, J. This is an appeal from a judg- ment of the County Court, of Niagara county, affirming the judgment of a Justices' Court. The action was upon a contract between the plaintiff and the common council of the city, by which the former rented to the latter certain premises to be used as a pound for the impounding of animals by the cor- poration. The contract was concluded on the 14th of June, 1869. The rent agreed upon was twenty-five dollars, to be paid the 1st of January, 1 870. On the 4th of April, 1870, the plaintiff presented his claim for rent to the common council of the city, and it was by them referred to the committee of that body on accounts. Nothing more was done with it ; and on the 4th of Novem- ber following the plaintiff again presented the same account in due form. No order of the common council was made for the pay- ment of the claim, nor warrant drawn upon the treasurer, according to the provisions of the charter, and the plaintiff failed wholly to obtain payment by that means. This action was commenced on the 26th of November, 1870, nearly eleven months after the demand had become due and payable by the terms of the agreement. By the city charter the common council are authorized to provide and establish a public pound. On the part of the defendant it was shown that the com inon council, on the 12th of July, 1869, caused the annual tax to be levied for the payment of expenses and claims to the amount of $16,500, which was the full amount they were authorized to raise in that way by the charter, which amount was collected and paid into the treasury, and that the sum of $8,120.82 was received and paid into the treasury from other sources. It was further shown that, on the 1st of January, 1870, the general funds in the treasury had been overdrawn, and so continued through the fiscal year ; and that, on the 12th of September, 1870, the common council again, by reso- lution, caused to be levied the sum of $16,500, in pursuance of their powers, under the charter. B}* the charter it is provided that all accounts and claims 1872.] OF THE STATE OF NEW YORK. 253 Buck v. The City of Lockport. against the city shall be presented to the common council ; and that the same shall, by that body, be referred to the standing committee on accounts, whose duty it is to examine into said accounts and report thereon to the common council, either favorably or adversely, with their reasons ; and the common council is then to hear, examine and determine the same, in like manner as a board of town auditors. If the claim is allowed or any part thereof, the common council is then to make an order for its payment, upon which the clerk of that body draws and signs a warrant on the treasurer, which is to be countersigned by the mayor of the city before the amount allowed can be paid. It is contended on behalf of the defendant that an action for a demand or claim of the kind cannot be maintained against the corporation ; that the city stands in respect to such claims on the same footing with counties of the State ; and that the only remedy of a creditor of this kind is by man- damus, to compel the common council to proceed and examine and allow the claim, and make the order for its payment. In respect to counties, it has been held that an action for such a cause cannot be maintained; but that the remedy of a party is by mandamus to compel the board of supervisors to discharge the duty which the law imposes upon it in regard to claims against their county. This is upon the ground that counties are political divisions of the State, possessing and exercising a measure of its sove- reignty, and that the only means the law has provided for the payment and satisfaction of such claims against the county is to have them presented to the board of supervisors, who are required to "examine, settle and allow" all such as are chargeable against the county, and " direct the raising of such sums as may be necessarv to defray the same " b} r tax. (Brady v. The Supervisors of New York, 2 Sand., 460; S. C., 10 N. Y., 260 ; Martin v. Supervisors of Greene County, 29 N. Y., 645 ; People v. Supervisors of New York, 32 id., 473 ; Peo- ple v. Supervisors of Delaware County, 45 id., 196 ; McClure v. Board of Supervisors of Niagara County, 50 Barb., 594.) 54 CASES IN THE SUPREME COURT [May, Buck . The City of Lockport. This rule is founded in considerations of public policy and expediency, and proceeds upon the same principle with that which refuses to allow an individual citizen to have a right of action against the State for claims against it, but provides for the payment of all such claims by means of official audit, appropriation acts, taxation, and warrants upon the treasurer. But this principle has never been fully extended to village or city corporations existing and acting under special charters. In respect to such corporations the rule extends no further than to exempt them from liability to actions for the recovery of such claims, primarily or in the first instance. The law presumes, in respect to all such claims, that they are contracted or created in reference to the power of the corporation, and the ways and means at its command of obtaining funds for payment, and will not allow such bodies to be harassed by actions unless they refuse or fail to exercise their power, or to use the means at their command to enable them to make pay- ment and satisfaction in the prescribed form. But if they refuse or neglect to put the proper machinery in motion to raise the necesary funds, or to put the claims presented in proper shape for liquidation and payment, then^the law gives the creditor his remedy by action to compel payment. This rule has been established and is illustrated by many decisions in the courts of this State. (McCulloch v. The Mayor, c#c., of Brooklyn, 23 Wend., 459 ; Gumming v. The Mayor, <&c., of Brooklyn, 11 Paige, 596 ; Beard v. The City of Brooklyn, 31 Barb., 142; Ganson v. The City of Buffalo, 1 Keyes, 454 ; Baldwin v. The City of Oswego, 2 Keyes, 132.) Here, it must be admitted, the common council have been guilty of great delay and negligence, or worse, in omitting to put the plaintiff 's claim in a proper shape to render it paya- ble in the ordinary and usual way after it was presented. There was in fact nothing for them to do but to order its payment. The contract was between the plaintiff and that body, and the amount and time of payment fixed by the con- tract. They had no right to disallow it (People v. Super* 1872.] OF THE STATR OF NEW YORK. 255 Monroe v. Upton. visors of Delaware Co., supra)) and it was their clear duty to make the order on which a warrant could have been drawn when the claim was first presented. It had then been due over three months. After the debt was contracted there had been two annual tax levies before this action was brought, and the common council, though twice applied to, had neglected to act upon the claim, and to put it in a condition to be properly paid from the city treasury. The corporation cannot thus keep its creditors at bay and then defend itself, on the ground that its own officers and agents have not done what it was their duty to do. If it should be conceded that the plaintiff here might have proceeded by mandamus, to compel the common council to allow the claim and make the necessary order for its payment, it would not follow that this action cannot be maintained. There is an exception to the general rule that a mandamus will not lie where the party has another remedy, in the case of corporations and ministerial officers. They may be com- pelled, to exercise their functions according to law by manda- mus, even though the party has another remedy against them by action for neglect of duty. (McCuUough v. Mayor, &c., of Brooklyn, supra, p. 461.) We think the action was pro- perly brought and that the judgment should be affirmed. Judgment affirmed. MORTIMER J. MONROE, Appellant, v. WILLARD UPTON et al., Respondents. (GENERAL TERM, FOURTH DEPARTMENT, MAT, 1872.) In an action upon a contract for the recovery of damages for an alleged breach, a trial was had and a decision rendered in favor of the plaintiff, and judgment ordered thereupon. Before the trial and decision a peti- tion in bankruptcy was filed by the defendant, and, after the actual entry of the judgment, defendant obtained his discharge in the bankruptcy pro- ceedings. Held, that the defendant was discharged from the judgment by the discharge in bankruptcy. 256 CASES IN THE SUPREME COURT [May, Monroe v. Upton. The defendant, having had no opportunity to plead his discharge in the action, a motion to set aside an execution issued upon the jugment, and for a perpetual stay thereof, was his proper remedy. APPEAL from order of Special Term setting aside execu- tion and ordering a perpetual stay thereof. The facts appear in the opinion. Rowley & Parker, for the appellant. D. C. Hyde, for the respondents. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. By the Court JOHNSON, J. The action was upon a con- tract for the recovery of damages for an alleged breach. The action was tried by the court without a jury at the Monroe circuit, October 7th, 1867, and there was a finding and deci- sion in favor of the plaintiff, and judgment ordered for $1,157.56. Judgment was not entered in the action until January 20th, 1868. On the 26th of November, 1867, the defendant filed his petition in bankruptcy, and was adjudged a bankrupt on the 5th of December following. On the 10th of July, 1868, the defendant obtained his discharge in the usual form. The execution in question was issued on the judgment June 1st, 1871. As the defendant had no opportunity to plead his discharge in the action, his only mode of relief is by a motion of this kind. (Palmer v. Hutchins, 1 Cow., 42 ; Baker v. Taylor, id., 165 ; Cornell v. Dakin, 38 K Y., 253.) The only ques- tion, therefore, is whether the discharge in bankruptcy had the effect to discharge the defendant from the judgment. This precise point has been twice decided in this State on mature deliberation, and it was held in each case that the judgment was discharged when the demand on which it was founded was provable in the proceedings in bankruptcy. (Dresser v. Brooks, 3 Barb., 429 ; Clark v. Rowling, 3 K Y., 216.) In each of these cases judgment had been entered intermedi- ate the filing of the petition in bankruptcy and the discharge, 1872.] OF THE STATE OF NEW YORK. 257 Worthington v. The New York Central Railroad Co. as in the case before us. There can be no doubt that the claim on which the plaintiffs judgment was founded was provable in the bankruptcy proceedings. It arose upon con- tract, and the action was to recover damages unliquidated. But such claims are provable, as we understand the bankrupt act ; but however this may be, the claim here had been liqui- dated and the amount ascertained and determined by the deci- sion of the court, before the petition in bankruptcy was filed. The defendant might, doubtless, have stayed the proceedings in the action, and prevented the entry of the judgment on the decision ; but his neglect to do so does not affect the operation of the discharge upon the judgment. If the judgment is dis- charged by the discharge in bankruptcy, it cannot be enforced by execution. The order was, therefore, right, and must be affirmed, with ten dollars costs of the appeal. Order affirmed. GAD B. WORTHINGTON, Respondent, v. THE NEW YORK CEN- TRAL RAILROAD COMPANY, Appellant. (GENERAL TERM, FOURTH DEPARTMENT, MAY, 1872.) Plaintiff hired K., a cartman, to transport goods from the freight-house of the defendant, a railroad company, over whose road they had been shipped, and deliver them at his store at a certain price per ton, giving him no authority to pay the freight upon the goods. K. paid out of his own money, on delivery of the goods to him, defendant's bill for the freight thereupon, and collected the amounts so paid from plaintiff, without his knowledge that K. had advanced the charges. These bills for freight included " back charges " paid by the defendant for freight upon con- necting roads, which were falsely made out by defendant's clerk having charge of the business, by overcharging the amounts which defendant had so paid. Held, that plaintiff could not recover back the over payments, on the ground that they were made by mistake, and that plaintiff had no knowledge or means of knowledge, at the tune of the payment, of their incorrectness, as the payments were not made by him nor with his money, and K. was not his agent to make such payments. LANSING VOL. VL 33 258 CASES IN THE SUPREME COURT [May, Worthington n. The New York Central Railroad Co. THIS action was brought to recover back moneys alleged to have been paid by the plaintiff and by his assignors, to the agents of the defendants, for excessive charges on freight transported over the defendant's railroad, in the years 1865 and 1866. The cause was tried before a justice of this court and a jury at the Genesee circuit in June, 1871. It appeared upon such trial that the plaintiff was a merchant, doing business in Batavia, and having goods shipped to him over defendant's road. These goods were taken from the defendant's freight-house, and delivered to the plaintiff at his store, by one Kinney, a cartman, with whom the plaintiff had a contract to cart his goods at a certain price per ton. The charges for freight were paid to the defendant by Kinney, the cartman, out of his own money at the time he took the goods from the freight-house, and the bills were then receipted and given to him. The plaintiff paid the amount to the cartman which he had advanced for the freight. He did not advance any money to the cartman to pay the charges for freight, nor did he have any arrangement with the cartman that he should advance or pay the freight or charges on the goods, and the plaintiff should pay him. The plaintiff, at the time he paid these bills to the cartman, did not know that defendant's charges had been paid by the cartmen. The plaintiff was familiar with defendant's charges and rates of freight, and had access to their freight register in defendant's freight office at Batavia, in which were entered the charges for freight, corresponding with the way-bill. The charges made by connecting roads, which the defend- ant paid and charged and collected from persons receiving freight at its hands, were marked on the bills paid by plaintiff, as back charges, in a separate item. The business was done in the same manner with plaintiff's assignors. The amount of freight and back charges appearing on 1872.] OF THE STATE OF NEW YORK. 259 Worthington . The New York Central Railroad Co. defendant's freight register at their freight office in Batavia, was $266.58 less than the amount actually paid by the plain- tiff and his assignors. No part of such excess was received by the defendant. At the close of the evidence the defendant asked for a dis- missal of plaintiff's complaint upon the following grounds, among others : " There is no proof that the plaintiff or his assignors have paid any money to the defendant or to those in its employment. " The proof shows that all moneys claimed to have been paid as overcharges were voluntarily paid, with full know- ledge, or with the means of knowledge, in possession or reach of those paying. " The evidence fails to establish any contract to transport or deliver plaintiff's goods at Batavia at a fixed or certain price. " No cause of action, under the complaint, proved against the defendant." The court refused to dismiss the complaint, and the defend- ant duly excepted. The counsel for the defendant also requested the court to instruct the jury " that if the excess of charges was paid by the plaintiff, he having at the time the means of ascertaining at the freight office whether or not the amount charged was correct, it was a voluntary payment, and the plaintiff could not recover." The court refused so to charge, and the defendant duly excepted to such refusal. The jury rendered a verdict for the plaintiff for $349.36, and from the judgment entered there- upon the defendant appealed. A. P. Laning, for the appellant. Wdkenian & Taggart y for the respondent. Present MULLEN, P. J. ; JOHNSON and TALCOTT, JJ. 260 CASES IN THE SUPREME COURT [May, Worthington v. The New York Central Railroad Co. By the Court JOHNSON, J. The action is to recover money paid by the plaintiff and his assignors to the defendant under a mistake of fact. When this case was before us on a former occasion for review of another trial, we held that according to the facts found by the referee the payments appeared to have been voluntary and not under any mistake of fact, but with full knowledge, or the means of knowledge, on the part of the persons making the payment, of all the facts and circumstances. If that were the only difficulty in the case, I think we should now hold that that difficulty had been overcome on the trial now under review. It appeared on the last trial that the overcharges which had been paid were nearly all on back charges, and that the plaintiff and others making the payments had no means of ascertaining whether they were correct or not, but paid them in good faith according to the bills presented, supposing and believing them to be correct. These back charges were charges made by connecting roads, which the defendant paid, and charged and collected from persons receiving freight at its hands, which had come over these connect- ing roads. The bills on which these payments were made were falsely made up by the defendant's clerk and agent having charge of the business, by overcharging the amounts which defendant had so paid. This, we are inclined to think, would bring the case fairly within the rule in regard to money paid by mistake on the part of the person paying through the fraud of the other party. But the other diffi- culty, that by far the largest portion of the money paid to and received by the defendant's agent was not and has never become the money of the plaintiff or of his assignors, still remains and appears to be inseparable. Of course this action cannot be maintained unless the plaintiff can show that the defendant, or his agent authorized to receive money in pay- ment of charges for freight, has received his money, or that of his assignors. It was paid by Kinney, the cartman, who had no authority to pay it, and who did not profess or under- take to pay it as their agent. He was not the agent of 1872.] OF THE STATE OF NEW YORK. 261 Worthington v. The New York Central Railroad Co. the defendant in any sense, and was in no respect in their employment. He had a contract with the plaintiff and his assignors to transport their goods from defendant's warehouse and deliver them at a certain price per ton. For that purpose he may be regarded as their agent or employe, but lie had no authority to advance money and pay charges on their account. These payments he made voluntarily with his own money, and took the bills receipted with the goods ; and the sums paid was reimbursed to him without any know- ledge, on the part of the owners of the goods, that he had paid the bills to the defendant. How, then, does the plaintiff get any title to this money overpaid in the defendant's hands ? Certainly, when the defendant received it and gave a receipt iu full, neither the plaintiff nor his assignors had any right or title to it whatever. It was advanced to the defendant by a volunteer, who did not assume to act as their agent in the transaction of paying the money, but who advanced his own funds, taking the risk of their paying him. The cartman, upon the facts which appear in the case, could not have com- pelled them to pay him these advances which they had never requested him to make on their account, and which they had never assented to or sanctioned in any way, except, perhaps, by retaining the goods. But, whether this is so or not, makes little or no difference in this case. The case is simply and sharply this : Kinney paid their debts voluntarily, without any request or' authority ; and they, without knowing this, pay him what he has advanced. The question then is, does this give them any title to the money paid by Kinney to the defendant ? Clearly, not. The mere naked statement of the proposition is sufficient to refute the plaintiff's claim. It is, in this action, a question of title, and not of equitable subro- gation to any claims Kinney may be supposed to have. Probably Kinney could not have maintained any action of this kind against the defendant, as it had no demands against him, and he was under no obligation to pay anything. If the plaintiff, by reason of his over-payments and assignments, has any title to any money, it must be to that in Kinney 'g 262 CASES IN THE SUPREME COURT [May, Stack v. Bangs. hands, instead of that in the hands of the defendant. It does not vary the case on this question that Kinney was told by defendants' agents to bring back the goods in case the owners refused to pay what he had advanced, as none were ever returned. Over-charges of this kind paid by the plaintiff tc the defendant, or to its agent duly authorized to receive mone for such charges, or by his assignees, stand upon a differe? footing, and we think may be recovered upon the facts whi appear in the case. But little, if anything, appears to have been paid in that way. The judgment must, therefore, be reversed and a new trial ordered, with costs to abide the event. New trial granted. ROBEET STACK, Appellant, v. MYKON BANGS, Respondent. (GENERAL TERM, FOURTH DEPARTMENT, MAY, 1872.) In order to render a canal contractor liable for damages resulting from defects in a canal bridge, it is not necessary to establish either that tho bridge was so defective as to be apparently so to everybody, or that notice of its defective and unsafe condition had been brought to the contractoi or his agents. It is sufficient if it appears that the defects were such as the contractor might, by reasonable examination and tests, have discov ered, and the question of his negligence in not making such discovery is one for the jury. MOTION for new trial upon exceptions ordered to be heard in the first instance at the General Term. The facts appear sufficiently in the opinion. Hiscock, Gifford <& Doheny, for the plaintiff. Roger & Jenney, for the defendant. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. By the Court JOHNSON, J. The plaintiff was improperly nonsuited. His counsel asked to have the case submitted to the jury on the question of the defendant's negligence, which 1872.] OF THE STATE OF NEW YORK. 263 Stack v. Bangs. was denied, and an exception duly taken. The action was brought to recover damages sustained by the plaintiff, occa- sioned by the wrongful and negligent conduct of the defend- ant in not keeping the bridge across the canal at Geddes street in Syracuse in repair and in a safe condition. The defendant was a canal contractor, and the bridge in question was embraced in his contract. The plaintiff was crossing the bridge with a team and loaded wagon, when the bridge suddenly gave way, precipitating the plaintiff, with his wagon and horses, into the canal, by means of which the plaintiff was much injured and his property more or less damaged. The load upon the wagon does not appear to have been excessive in respect to weight, and it was drawn with ordinary speed only for such a place. The fact that the bridge broke down under such circumstances is quite conclusive that it was at the time in an unsafe condition. The evidence in the case tends to show that the bridge gave way on account of a cer- tain brace under it being out of place, or on account of the timbers being rotten, or from both causes combined. Some of the timbers of which the bridge was constructed were shown to have been quite rotten and unfit for such a place. The court ruled that in order to render the defendant liable the plaintiff must show either that the bridge was so defective as to be apparent to everybody, in which case the defendant would be bound to take notice of it, or that notice of its defective and unsafe condition had been brought to the defendant or his agents. This is not the rule. It was clearly a question upon, all the evidence, whether the defendant had not been negligent in not ascertaining the real condition of the structure if he was ignorant of it. That he would be liable for his negligence in a case like this, is established by the decision in Robinson v. Chamberlain (34 N. Y., 389) and in Fulton Fire Ins. Co. v. Baldwin (37 id., 648). Canal bridges fall within this rule, as was expressly held in Conroy, Adrn'r, v. Gale, decided in the third department at the June term. 1871.* * Reported 5 Lansing, 344. 264 CASES IN THE SUPREME COURT [May, Decker . Leonard. In that case, as appears by the opinion which has been fur- nished us, it was distinctly held that notice to the contractor of the dangerous condition of the bridge was not necessary, but that it might be a question for the jury whether the defects were so far concealed as to relieve the contractor from responsibility on the score of negligence. This decision has, as we understand, been affirmed by the Court of Appeals. The defendant was under an obligation and a duty to keep this bridge in repair, and it will hardly do for him to say merely that he had not been informed in regard to its condi- tion. He should have known, if he could have found out by reasonable examination and tests. He could not sit still and suifer the braces to fall out or the timbers go to decay without any care or examination, and shield himself from liability on the ground of such ignorance. (McCarthy v. City of Syrar cuse, 46 N. T., 194.) The plaintiff should have been allowed to go to the jury on the question of the defendant's negli- gence. A new trial must, therefore, be ordered, with costs to abide the event. New trial granted. LAVINA A. DECKER, Respondent, v. JOHN E. LEONARD, Appellant. (GENERAL TERM, FOURTH DEPARTMENT, MAY, 1872.) Pursuant to a parol agreement between plaintiff and E., and in considera- tion of a certain sum advanced by E. to her, a deed was executed by plaintiff of certain premises owned and possessed by her, reciting the receipt of a valuable consideration, in which the wife of E. was named as grantee. At the same time with the execution of the deed, E. exe- cuted an agreement in writing and under seal, by which he for value received agreed that plaintiff should have the sole and undivided use of the premises conveyed by the deed during her natural life ; and, further, that she might sell the same at any time by paying to E. a sum named, without interest. This agreement was delivered to plaintiff, who simul- taneously delivered to E. the deed. The wife of E. was not present at the transaction, and it did not appear that she had at the time any know- N 1872.] OF THE STATE OF NEW YORK. 265 Decker v. Leonard. ledge of it. Plaintiff continued in possession of the property until it was conveyed with warranty by E. and his wife to defendant, who had actual notice before his purchase of the agreement between E. and plaintiff. Defendant then took possession of the property. Held, that the deed and agreement were to be construed together as one instrument, and were in legal effect a mortgage ; that by the conveyance to him defendant became only an assignee thereof, and that plaintiff was entitled to recover the possession of the premises. ACTION to recover possession of real estate. The facts are as follows : On the 6th of October, 1854, the plaintiff' was seized in fee of the premises in question, and on that day entered into an agreement by parol with Eddington B. Decker, in consideration of a certain sum of money advanced by said Eddington, and of certain rights of possession and redemption of said premises to be secured to her, to convey to said Eddington or to his appointee the said premises by deed purporting on its face to convey an absolute title. In pursuance of such parol agreement or understanding a deed was prepared to be executed by said plaintiff, in which Marga- ret Decker, the wife of said Eddington, was named as grantee with a consideration of $427 named therein as received. This deed purported to convey the entire fee of the premises and was signed and acknowledged by the plaintiff. At the same time the said Eddington had prepared a paper for the plaintiff, in order to carry out the agreement, in the words and figures following: " For value received, I, E. B. Decker, of the city and county of New York, hereby agree that Lavina Decker, of Auburn, county of Cayuga and State of New York, shall have the sole and undivided use of the house and lot known as No. 3 of the Academy lease lots, during her natural life. I fur- ther agree that she shall at any time sell the above named property by paying to me the sum of four hundred dollars, without interest from date. AUBURN, Oct. 6, 1854. [L. s.] E. B. DECKER." LANSING VOL. VL 34 266 CASES IX THE SUPREME COURT [May, Decker v. Leonard. This paper, signed and sealed by Eddington, was delivered to the plaintiff, and simultaneously the plaintiff delivered to him the deed aforesaid. Eddington was a stepson of the plaintiff, and the evidence tended to show that the money advanced by him was to pay off and satisfy an outstanding mortgage on the premises. Margaret Decker, the grantee in the deed, was not present at any part of the transaction, and there is no evidence to show that she had given any previous authority to her hus- band, or had any interest in the money advanced, or had any knowledge whatever of what was done until some time after the whole was completed. The plaintiff's deed to the grantee was duly recorded, but the agreement was neither acknow- ledged or recorded. The plaintiff continued in possession of the premises, after this transaction the same as before, up to March 23d, 1870, when the said grantee, with her husband Eddington, conveyed the same by deed with covenant of war- ranty to the defendant. The defendant under this deed went into possession on the 10th of April thereafter, to the exclu- sion of the plaintiff, and continued the same up to the com- mencement of the action. The defendant, before his purchase, had actual notice of the plaintiff's claim. The action was tried by the court without a jury. Judg- ment was ordered in favor of the plaintiff for the recovery of the possession, and $135 damage for use and occupation, and withholding possession. The defendant excepted, and appeals to the General Term. J. T. Pingree^ for the appellant. W. E. Hughitt) for the respondent. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. By the Court JOHNSON, J. Upon the facts established in this case we think the judgment is right. 1872.] OF THE STATE OF NEW YORK. 267 Decker . Leonard. The defendant is not a bonafide purchaser without notice, and is in no better situation than his grantor, Margaret Decker would have been, had she been in possession and the action been brought against her. It is insisted, on behalf of the defendant, that Margaret Decker, by means of the plain- tiff's conveyance to her, acquired a perfect and absolute title to the premises, which was in no respect limited or affected by the instrument executed by her husband, and delivered cotemporaneously with the delivery of the grant. But this will scarcely do. The instrument and the right therein spe- cified are part of the consideration of the grant, and a part of the bargain in which the grant is founded. The grant and the instrument were executed and delivered at the same time, in fulfillment and performance of a previous parol arrangement, and are to be read and construed together, as though both were a single instrument. The bargain was the bargain of the grantee's husband and the plaintiff. They were the sole parties in interest in the subject-matter, so far as appears. The deed to the wife was a mere gratuity from the husband. It was the fruit of his contract, which, if she accepted, she must accept with all its qualifications and burdens. She must take the burden as well as the benefit, and cannot be allowed to hold the one and reject the other. She might have refused to accept the deed, as she was in no way interested in the subject-matter out of which it sprang, and was under no obligation to have anything to do with the transaction. But having accepted it, she must hold it, as it is, affected by the whole transaction in which it had its origin and consummation, and for what it is, in fact and in law ; and cannot repudiate or change anything connected with it without restoring what she has received. If she retains what she gets by the instrument the law will oblige her to sanction and be bound by the whole transaction, and will make it hers, the same as though she authorized and directed it ori- ginally. The law will charge the instrumentalities to her account, and impute to her all the concurrent acts which affect the 268 CASES IN THE SUPREME COURT [May Decker . Leonard. transaction, the same as though she had been the party ori- ginally. (Paley on Agency, Dunlap's ed., 171, n, o ; Ben- nett v. Judson, 21 N. Y., 238 ; Story on Agency, 256.) The instrument given to the plaintiff, therefore, when the deed was delivered, whatever may be its legal effect, is her instrument so far as it affects her title under the conveyance. This instrument, in express terms, provides that the plaintiff may at any time sell the property by paying to the husband and agent of the grantee the sum of $400, without interest, and that the plaintiff shall have the sole and undivided use of the house and lot during her natural life. One part of the instrument is clearly in the nature of a defeasance, and ren- ders the deed but a mortgage within the provisions of our statute. (1 R. S., 756, 3.) It is, in point of law, merely a mortgage by way of securing the money advanced, reserving to the mortgagor the right of possession and occupancy during her life. The instrument is in writing, and is under seal, and shows plainly what was intended by the parties to the transaction, and it comes within the terms of the statute. No seal was necessary ; but it works no harm. Reading the two instruments together, the deed becomes a mere mort- gage, reserving to the mortgagor the right as against the mortgagee of possession and occupancy during her natural life. The defendant, as grantee of the plaintiff's grantee, is only an assignee of this limited mortgage, and was not entitled to possession. Had it been an ordinary mortgage, and the mortgage debt due, the defendant, being in possession, might perhaps have retained it until the debt should be paid. But here, by the very terms of the mortgage, the plaintiff's right of possession is secured to her for life, and, also, the right of paying off the debt at any time she might choose, without interest. The judgment is therefore right, and should be affirmed. Judgment affirmed. 1872.] OF THE STATE OF NEW YORK. 269 Loomis v. Board of Supervisors of Oneida County. E.HODA M. LOOMIS v. THE BOARD OF SUPERVISORS OF ONEEDA COUNTY. (GENERAL TERM, FOURTH DEPARTMENT, MAT, 1872.) In an action, brought pursuant to chapter 428 of Laws of 1855, to recover the value of property owned by the plaintiffs as tenants in common, which had been destroyed by a mob, it appearing that certain of the plaintiffs had been notified several days before the assembling of the mob and occurrence of the injury of threats and attempts to be made, to destroy the property by a mob, and that no notice had been given by the plain- tiffs so notified to the sheriff of the county, and that others of the plaintiffs had received no actual notice and had no personal knowledge of the threatened destruction of the property, Held, that a charge to the jury to the effect that such of the plaintiffs as had been thus notified were not entitled to recover, for the reason that they had failed to notify the sheriff of the county in regard to the threats, but that such of them as had not been notified and had no personal knowledge of the threats were entitled to recover ; and that notice to their co-plaintiffs and co-tenants was not, in law, notice to them, was correct. MOTION for a new trial upon exceptions ordered to be heard in the first instance at General Terra. The facts are stated in the opinion. John D. Kernan, for the plaintiffs. C. D. Adams, for the defendants. Present JOHNSON and TALCOTT, JJ. By the Court JOHNSON, J. The action was brought under the statute of 1855 (Sess. Laws of 1855, chap. 428) to recover the value of property held and owned by the plaintiffs as ten- ants in common, which had been destroyed by a mob. The only ground on which the defendants' counsel asks for a new trial is upon a quention of law arising on an exception to the charge to the jury. The plaintiffs held and owned the premi- ses destroyed as tenants in common, and it was shown upon the trial that a certain number of them, several days before the assembling of the mob and the occurrence of the injury, 270 CASES IN THE SUPREME COURT [May, Loomis v. Board of Supervisors of Oneida County. had been notified and apprised of threats, and attempts to be made to destroy the property by a mob, and that no notice thereof had been given by the plaintiffs so notified to the sheriff of the county. The other plaintiffs had received no actual notice, and had no personal knowledge of the threatened or intended destruction of the property. The judge charged the jury that such of the plaintiffs as had been thus notified were not entitled to recover, for the reason that they had failed to notify the sheriff of the county in regard to the threats, but that such of them as had not been notified and had na personal knowledge of the threats were entitled to recover ; and that notice to their co-plaintiffs and co-tenants was not, in law, a notice to them. To these latter portions of the charge the defendants' counsel duly excepted. "We think the charge in this respect was clearly right. The statute ( 1) declares that in the case of any building or other real or per- sonal property being destroyed or injured in consequence of any mob or riot, " the city or county in. which such property was situated shall be liable to an action, by or in behalf of the party whose property was thus destroyed or injured, for the damages sustained by reason thereof." The third section provides that no person shall be entitled to recover in such action unless he shall have used all reasonable diligence to prevent such damage, " and shall have notified the mayor of such city, or the sheriff of such county, immediately after being apprised of any threat or attempt to destroy or injure his or their property." The point insisted upon is, that notice to one tenant in common is notice to all, and that the neglect of such tenant to give the requisite notice is the neg- lect of all the other co-tenants, and bars a recovery by them. But this is not the meaning and intent of the statute, nor the import of its language. By the plain terms and meaning of the act, in order to prevent a recovery, the neglect of the duty imposed must be by the person to whom the right of action is given, and not by some other person, who could not recover for his interest. Tenants in common of real property do not represent each other's interests. There is no privity 1871.] OF THE STATE OF NEW YORK. 271 Sortore v. Scott. of estate between them. They are separately seized, and are deemed to have several and distinct freeholds, and each is con- sidered as solely or severally seized of his share. (4 Kent Com., 367, 368.) There is no agency between them for each other, except by appointment or agreement, which does not appear here. Notice to some of the tenants in common was, therefore, in no legal sense, notice to the others, and such others could not notify the sheriff, having nothing to commu- nicate. They consequently do not come within the prohibi- tion of the third section of the act, and were entitled to recover. The charge was right, and a new trial must be denied and judgment ordered for these plaintiffs on the verdict. The presiding justice, having tried the cause at the circuit, does not sit. New trial denied. CYNTHIA SORTORE, Respondent, v. RUFUS SCOTT, Administrator of HENRY SORTORE, deceased, Appellant, impleaded, etc. (GENERAL TERM, FOURTH DEPARTMENT, MARCH, 1871.) The eestuis que trust are vested with an absolute title to funds set apart from the assets of an estate as trust funds, and may maintain an action for their mismanagement and loss. It seems a plaintiff may make a case entitling him to part of the relief which he demands, and be refused other relief for failure to join with himself other necessary parties. It seems that the rule which denies a right of action against the represen- tatives of a deceased joint debtor and the survivor, until the remedy is exhausted against the latter, unless he is insolvent, does not apply to the case of breach of trust by trustees. But that the representatives of a deceased trustee are properly joined with the surviving trustee in an action for breach of trust happening during the deceased trustee's life. But a plaintiff cannot unite a right of action for breach of trust, against a surviving trustee, and the representative of his deceased co-trustee, 272 CASES IN THE SUPREME COURT [March, Sortore v . Scott with a claim for interest, of trust funds, recoverable, against the surviving trustee as surviving executor of the estate from which the trust funds have been set apart ,in an action at law. Nor can the cestui que trust, entitled to interest of the trust fund during life, have an action to compel the trustees to give security for moneys lost by their breach of trust, and an accounting, or to recover the moneys lost, without joining those owning the remainder. THIS was an appeal by the defendant Scott, as an executor of Henry Sortore, deceased, from an order of Special Term, overruling his demurrer to the plaintiff's complaint. On the 30th January, 1864, William Sortore died in the county of Allegany, leaving a will, in and by which he bequeathed to his executors the sum of $2,000 in trust, to receive the interest thereof and pay the same to his wife (the plaintiff in this suit) during her natural life, and after her death the principal sum to be equally divided between his children, eight in number. Jesse Sortore and Henry Sortore were appointed executors of said last will. On the Tth March, 1864, said will was duly proved before the surrogate of Allegany county, and the executors named therein received letters testamentary and took upon them- selves the duties of such office. Henry Sortore, one of the said executors named in said will, departed this life on the 23d March, 1869, and the defendants, Jesse Sortore and Rufus Scott,were duly appointed administrators of his estate. The plaintiff, being the widow of said testator and one of the cestuis que trust under the said will, brings this action to compel the defendants to account to her for the interest due to her, from said $2,000, and compel the defendants to give security for the faithful performance of their trust in the future, or, failing in this, that they be removed and another trustee appointed. The complaint, after setting out the aforesaid facts, charges that the testator left a large amount of real and personal estate, sufficient to pay all his debts and funeral expenses, 1871.] OF THE STATE OF NEW YORK. 273 Sortore . Scott. and all the legacies given by said will, including said $2,000 That the said executors received from the estate of the testator said sum of $2,000. That being unmindful of the trust reposed in them, and to accommodate a friend, one Yan Canter, entrusted $1,000 of said $2,000 so received by them, in his hands, without adequate security ; and although there is a large amount of interest due, to wit, the interest on $2,000 for more than a year, yet defendants refuse to pay the same or to account to plaintiff therefor, on the pretence that said Yan Canter has failed and is unable to pay any part of said $1,000, and that plaintiff is bound to bear the loss. The plaintiff, demands the relief above stated. To this complaint the defendant, Scott, demurred, and specified the following grounds : 1st. The complaint does not state facts sufficient to consti- tute a cause of action. 2d. It does not state facts sufficient to constitute a cause of action against said Scott, as administrator, nor against him and Sortore, administrators of Henry Sortore, deceased, as one of the executors of William Sortore, the testator. 3d. There is a defect of parties. The children of the tes- tator should be joined as plaintiffs. 4th. There is a misjoinder of causes of action, to wit, a demand due from Jesse Sortore as surviving executor, with a demand due from Jesse Sortore and Scott, administrators of the estate of Henry Sortore, deceased, another of the executors of the last will of said William Sortore, deceased. The Special Term overruled the demurrer with costs, and gave the defendant leave to answer in twenty days on pay- ment of costs. From this order the defendant appeals. Jones & Spargur, for the appellant. Hamilton Ward, for the respondent. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. LANSING VOL. YI. 35 274 CASES IN THE SUPREME COURT [March, Sortore v. Scott. MULLIN, P. J. The cases in which a cestui que trust can maintain an action at law against a trustee are very few in number, and this is not of that number. A court of equity is the proper tribunal to adjust the rights and liabilities of persons who occupy that relation. (Hill on Trustees, 42; id., 518 and notes.) This action must be held to be an equitable one, therefore, and we are to look to the adjudication of the courts of equity to guide us in determining the questions arising on the demurrer. The complaint alleges a breach of trust by the trustees in the lifetime of Henry Sortore, the deceased executor ; and as that breach consisted in the neglect of both to obtain proper security on loaning the trust moneys, both trustees are pre- sumptively liable for the breach. (Hill on Trustees, 309, 310 and notes.) Such an act by trustees is a breach of trust. (Id.) The complaint charges that the trustees set apart from the assets of the estate of the testator the sum of $2,000, as the fund required by the will to be invested, and the interest paid to the plaintiff. This allegation is admitted by the demurrer. In the case of Lietch v. Wells (48 Barb., 637), the right of csstuis que trust to maintain an action for breach of trust is established. In that case the testator died, having made a will, by which he gave to his executors in trust $25,000 to be invested, and the interest to be paid to his daughter during her life ; and, from her death, to he held in trust for her children. The executors became insolvent and a receiver was appointed. The executors transferred to the receiver all the assets of the estate in their hands except $25,000 in the stock of a certain bank, which they retained as trustees for the daughter of the testator and her children, which had been set apart for the purposes of said trust. Those shares of the stock came to the surviving executor, and he fraudulently disposed of them for his own purposes. 1871.] 'OF THE STATE OF NEW YORK 275 Sortore c. Scott. The mother and her children, the cestuis que trust, undei said will, commenced an action in this court to recover the legacies given to them, and claiming the stock set apart tor them as above stated. The mother died, and the suit was continued in the namo of the children. It was held that, by setting apart the stocks, the cestuis que trust became the owners of, and vested with, the absolute title to said stocks, and that the transfer by the trustee was void. As both the plaintiff and her children are interested in the funds set apart pursuant to the will, both are interested in its protection. And in an action brought to remove trustees, or to compel them to give security, both should unite; otherwise both the plaintiff and the children might bring separate actions to obtain the same relief. (Muneck v. CDchiett, 8 Simons, 2L9-231.) In the recovery of the interest remaining unpaid the plain tiff alone is interested, and she may maintain an action in her own name therefor. The complaint contains no material allegations not proper to be made in a complaint to recover the interest, unless it may be such as relate to the death of one of the executors and the appointment of administrators for his estate; and these are necessary if the surviving executors and the repre- sentatives of the deceased one may be joined as defendants. There is not an improper joinder of causes of action in this complaint ; but more extensive relief is demanded than the court will grant unless other parties are brought in. The relief given has reference to the parties that are before the court. One plaintiff may make a case entitling him to part of the relief demanded, but will be refused other relief because he has not joined with himself other parties necessary to entitle him to it. The allegation in regard to the death of one of the execu- tors may be stricken out on motion, and the action be con- tinued for the collection of the interest only. 276 CASES IN THE SUPREME COURT [March, Sortore r>. Scott. The defect, if any, is not a ground for demurrer. (Code, 144, sub. 5, and note thereto.) The important question in the case, however, is whether the plaintiff can maintain the action against the administra- tors of the deceased executor without showing by the com- plaint that she has exhausted her remedy against the survivor, or that he is insolvent. If the same principle applies to trustees and cestuis que trust that applies to joint debtors and their creditors, this action cannot be maintained, for it is considerably settled that in the case of joint debtors the representatives of a deceased co-debtor are not liable, unless the survivor is insol- vent or the remedy at law against him is exhausted. (Hill on Trustees, 1576, 1577 ; 4 Abb. Dig., 319, title Partner- ship, 277, et seq.) The Code has not changed the rule. ( Voorhis v. Childs, 17 N. Y., 354.) A different rule prevails in courts of equity in England. (2 Williams on Exrs., 1577, 1578.) I am satisfied that the same rule does not apply to trustees that is applied to joint debtors. In England, it is well settled that the representatives of a deceased trustee may be joined with the surviving trustee in an action in equity founded on a breach of trust. (Hill on Trustees, 520 ; Lyon v. Kingdon, 1 Coly, 184 ; KnotcJibull v. Fearnhead, 3 M. & Cr., 122; Munch v. Cockerell, 8 Simons, 219.) In none of the cases that I have examined is it suggested that the right to join the representatives of the deceased executor with the survivor rests in any degree on the joinder, in cases of joint debtors. It seems to be applied to cases of breach of trust, not by reason of any analogy to any other class of cases, but because it properly applies to them. When an account of the assets is sought, the representa- tives of a deceased executor must be joined with the surviving 1871.] OF THE STATE OF NEW YORK. 277 Sortore v. Scott. executor. (Hall v. Austin, 2 Coly, 510 ; Holland v. Prwt 1 Myl. & K, 237 ; 2 Williams on Executors, 1827.) There are considerations which make it proper, in case of the death of a partner, that a creditor desiring to proceed in equity against the representatives of a deceased partner should allege and prove the insolvency of the surviving partner, that have no application to an action against a surviving trustee and the representatives of a deceased one for breach of trust. In the case of partners, the partnership property is pri- marily liable for the partnership debts, and the surviving partner, as between him and the representatives of his deceased partner, is primarily liable for such debts, because he is in law and in fact the legal owner of the partnership assests, and is himself also individually liable for them. It is but just, the partnership effects should be applied to the payment of the partnership debts before the individual pro- perty of the deceased, to which his individual creditors have the better right, should be applied to the partnership debts. But when the action is for breach of trust, it is in effect for a personal tort, of which both the survivor and the deceased were personally liable, and the individual property of each may be appropriated to redress the wrong. There is no joint property either legally or equitably pri- marily liable, and the liability of the joint property is the reason why resort must be first had against the survivor. If an action at law lay for breach of trust it must neces- sarily be broright against the surviving trustee. But as the remedy is in equity, its rules as to the joinder of parties apply and they make it necessary to unite all who ought to con- tribute to the redressing of the wrong. I do not lind that the attention of our courts has ever been called distinctly to the question, so that it can properly be said to have been decided. The question might have been raised in King v. TaXbot (50 Barb., 453, and which was affirmed in 40 N. Y., 76). That was an action by a cestui gue trust against the sur- 2/8 CASES IF THE SUPREME OOUKT [March* Sortore . Scott. ving trustee and the personal representatives of a deceased- trustee to compel an accounting and the payment of what might be found due to plaintiff on account of her legacy. It was not suggested by the counsel for the defendants that there was an improper joinder of parties defendant, and I am quite sure the counsel who argued the case for the defend- ants in both courts would not have overlooked or waived so obvious a defect had he supposed it existed. Nor would the defect have escaped the attention of the judges of both courts- in which the case had been carefully considered, although they might not have deemed themselves at liberty to dismiss the action because of the improper joinder of defendants. The only serious difficulty to the joinder arises from the different judgments that must be entered in case the plaintiff establishes a cause of action ; against the survivor it must be de J>onis propriiSy against the representatives it must be de bonis testato rio. A court of law could not render both these- judgments in the same action. Courts of equity, however, have found no difficulty in rendering such judgment, as is shown by the; practice in the English courts. My conclusion is that the surviving trustee and. the repre- sentatives of the deceased one are properly joined. Assuming that the representatives of the deceased trustee are properly joined, they are liable personally only to the extent of the assets which have come to their hands pro- perly applicable to the payment of the claim- for which the action is brought. On the death of Henry Sortore, the trust devolved on the surviving trustee. The administrators of Henry have nothing to do with the trust funds ; they can discharge none of the duties of the trust, and cannot be compelled to give security for the fund, and, not being trustees, they cannot be removed. In these portions of the relief sought, they have no inte- rest, and hence the action cannot be prosecuted against then* for any such purpose. 1871.] OF THE STATE OF NEW YORK. 279 Sortore c. Scott. It is alleged that the defendants refused, on demand, to pay the interest or replace the $1,000, and this demurrer admits. So far, then, as a demand is essential to a right of action, it is a conceded fact in the case. The defendants' counsel insists that there was no breach of trust during the life of Henry, but, on the contrary, it occur- red after his death. This is a mistake. The complainant distinctly avers that both loaned the money and both were guilty of carelessness and negligence in reference thereto. This is admitted by the demurrer, and must be taken as true. If these views are correct, it follows, 1st, that the plaintiff cannot unite in one action a claim for the interest due her under the will and the equitable relief claimed in the com- plaint. The interest is recoverable against the surviving exe- cutor in an action at law. 2d. If she elects to prosecute the action in order to obtain the equitable relief, the claim for interest must be aban- doned and the complaint amended by striking therefrom all allegations in reference thereto. 3d. If the plaintiff desires an accounting, and that security be given for the $1,000 which has been lost, the other lega- tees must be made parties to the action. 4th. If she desires to recover the money lost by the mis- conduct of the trustees, the other legatees are proper parties, and the representatives of the deceased executor are properly joined. 5th. That these two causes of action may be united in the same complaint. The order of the Special Term pmst be reversed and judg- ment ordered for the defendant on the demurrer, with leave to plaintiff to amend within twenty days from service of a copy of this order, on payment of costs in the Special Term and of the appeal. 280 CASES IN THE SUPREME COURT [Jan., Tyler v. Araes. RODOLPHUS D. S. TYLEK, Respondent, v. HENKY M. AMES, Appellant. e 280, (GENERAL TERM, FOURTH DEPARTMENT, JANUARY, 1872.) 24h 176 ipia 39(1 A contract to employ an agent for a year, if he " could fill the place satis- factorily," maybe terminated by the employer when, in his judgment, the agent fails to meet that requirement of that contract. THIS was an appeal from a judgment for the plaintiff, entered upon the report of a referee. The facts are stated in the opinion. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. MULLIN, P. J. The contract of hiring, as found by the referee, was that plaintiff " should serve as defendant's agent in the sale of engines manufactured by defendant, for the term of one year, if plaintiff could fill the place satisfacto- rily" The service commenced on the 4th April, 1867. Plaintiff was sent to Chicago to look after defendant's inte- rests in that vicinity. In the latter part of July, plaintiff was taken, sick, and he remained sick during the month of August, and into the fore part of September, 1867. About the 20th August the defendant went to Chicago and found the plaintiff sick. Although it would seem that it was not impossible for plaintiff to attend to defendant's affairs, it was difficult for him to do so, and for some days he was not well enough to go to his office. The defendant, finding plaintiff in this condition, discharged him, as not able to fill the place, which he was employed to fill, satisfactorily. The plaintiff insists that he was discharged in violation of the contract of hiring, and that he is entitled to recover his wages for the residue of the year. It was for defendant to determine when plaintiff failed t& fill the place of agent satisfactorily, and I know of no one who is authorized to review his decision. The word " satisfactorily " refers to the mental condition 1872.] OF THE STATE OF NEW YORK. 281 Tyler v. Ames. of the employer, and not the mental condition of a court or jury. The right of determining whether the plaintiff filled the place of agent satisfactorily must, from the nature and necessity of the case, belong to the person whose interests are directly affected by the plaintiff's action. To require the employer, under such a contract, to prove that plaintiff did not fill the place satisfactorily, would be to require of him an impossibility, unless his own oath was taken as to his mental status on the subject. If he is required to prove facts and circumstances that would justify him in feeling dissatisfied with the manner plaintiff filled his office, it would be annulling this clause of the contract, as, without such a clause, he would have the right to dismiss the plaintiff if he did not properly perform his duties. The question is quite similar to the one that is sometimes raised on chattel mortgages, containing a clause authorizing the mortgagee to take the property and sell it when he deems himself insecure. The weight of authority is in favor of the right of the mortgagor to take and sell the property without any obligation to prove that the facts and circumstances sur- rounding the parties justified him in deeming himself inse- cure. (Huggans v. Fryer, 1 Lans., 276 ; Chadwick v. Lamb, 29 Barb., 518 ; Rich v. Milk, 20 id., 616 ; Hall v. Sampson, 19 How. Pr., 481 ; Farrell v. Hildredtk, 38 Barb., 178.) If, however, the defendant was bound to show that he had suffi- cient reason for not being satisfied with the ability of the plaintiff to fill the place satisfactorily, the proof is ample to authorize him to dismiss the plaintiff. The clause was not intended to be limited in its operations to any particular period of time after the plaintiff entered upon his duties, but authorized the termination of the hiring at any time during the year, when plaintiff, by disease, by indul- gence in bad habits, by neglect of duty, or in any other way, rendered himself unfit or incapable of performing his duties. I cannot resist the conclusion that plaintiff was properly dis- charged. Several of the findings of fact are not justified by the evi- LA.NSING VOL. VI. 36 282 CASES IN THE SUPREME COURT [March, Palmer v. Lawrence. dence, but it is unnecessary to consider them, as the judg- ment must be reversed, whatever our conclusion may be as to those findings. Judgment reversed and new trial ordered, costs to abide the event. MANNING C. PALMEK, Appellant, v. ALMON H. LAWRENCE, Respondent. A (GENERAL TERM, FOURTH DEPARTMENT, MARCH, 1872.) After jurisdiction acquired, assessors act judicially in determining upon the amount of the assessment, the right to exemption and the liability of the property to assessment, and are not liable for error in the determination. But assessors must make their assessment at the peril of being made per- sonally responsible if they assess persons who are not inhabitants of their town. Accordingly, where trustees of a school district erred in determining that the plaintiff was assessable as an inhabitant of their school district where he had taken up his abode temporarily, and assessed him for school pur- poses, they were held liable for sale of his property under their warrant for collection of the tax. The cases where inferior tribunals and officers of limited jurisdiction, are required to proceed upon proofs presented to them, and those in which they act ex parte, in determining the question of their jurisdiction, dis- tinguished. THIS was an appeal by the plaintiff from a judgment entered upon a nonsuit. The facts are stated in the opinion. Sedgwick, Kennedy da Tracy, for the appellant. Pratt, Mitchell & J3rown, for the respondent. Present MTTLLIN, P. J. ; JOHNSON and TALCOTT, J J. MULLIN, P. J. For a number of years prior to February, 1869, the plaintiff resided and did business in the city of Syracuse. In that month he sold the house in which he lived, and hired a house with a few acres of land in the town of Clay for a year, and with his family went into possession of 1872.] OF THE STATE OF NEW YORK. 283 Palmer . Lawrence. said premises about the 1st of March of the same year, and continued to reside therein until about November following, when he moved back into the city, where he still resides. When plaintiff sold his house he intended to purchase another in the city, and intended to occupy the house in Clay only until he could make such purchase. Within about ten days after he sold, he purchased another place, but as it needed repairing he went to reside on the place in Clay, until such repairs were completed. He moved into the house last purchased before the repairs were fully completed. He took the house in Clay for a year, intending that a sister of his, living south, should occupy it during the residue of the year, from the time he should return to the city. Plaintiif carried on a clothing store in Syracuse, and while his family were in Clay, he went out to them every night and returned to his place of business in the morning. He cultivated the garden, and pastured a cow and horse on the land. The residence of the plaintiff, when in Clay, was in school district, No. 12, composed of parts of the towns of Clay and Cicero, in the county of Onondaga. On the 13th October, 1868, a meeting of the inhabitants of said district was duly convened, and it was resolved to build a new school-house in said district. On the 2d of November another meeting was held and the expense of the house was fixed at not exceeding $2,000. On the 25th January, 1869, it was voted to raise toward building the said house, by tax on the district, $1,000. This sum was called the first installment for building the house. On the 13th April, 1869, it was voted to borrow $1,200, tc be applied toward erecting the house, and on the 7th June the trustees were directed to borrow $200 more for the same purpose. On the 10th May, 1869, the trustees were directed to raise in addition to the sums previously voted enough to make the sum of $2,800. On the 6th February, 1869, the school commissioners for 284 CASES IN THE SUPREME COURT [March, Palmer v. Lawrence. the first commission district of said county authorized the district to raise $2,000 for the purpose of building a school- house in said district, and to levy the sum by tax on the taxa- ble property of said district. The trustees assessed upon the taxable inhabitants the sum of $2,015, being $1,800 for building the new school-house, ninety dollars for interest on money borrowed and applied to the same use, and $125 to pay teachers' wages. Amongst others who were assessed was the plaintiff for $3,000 personal, and the amount of tax was ninety-six dollars. About the time the- assessment was made, the plaintiff told one of the trustees that his residence was in Syracuse ; that he was assessed for $3,000 personal, and tried to induce the trustee to omit to assess him, but the latter insisted he was liable to assessment in said district, and he was assessed accordingly. The trustees on the 28th October, 1869, issued their war- rant to the collector of said district, who by virtue thereof seized and sold a wagon belonging to the plaintiff worth $350. For this alleged injury the plaintiff brought this action against Lawrence Millard and "Wadkins, the trustees of said district, who issued the warrant. They justified the seizure and sale under the warrant, and proceedings of the district meetings. On the trial it appeared that the warrant was dated 28th October, 1869, and was renewed by Lawrence and Russell, two of the said trustees, on the 30th November, for thirty days. This renewal was approved by the commissioners ot schools. On this proof the defendant moved to discharge the defendant Millard, and he was discharged accordingly. The court held and decided that, upon evidence, the trustees acted judicially in assessing the plaintiff, and \vere not liable therefor. The defendant's counsel insisted that the proceedings to raise the money for the school-house were illegal, as they voted to raise a larger sum than by law they were entitled to do. In support of this branch of the case, the defendant 1872.] OF THE STATE OF NEW YORK. 285 Palmer v. Lawrence. offered to prove that the trustees collected a tax of $1,000 toward building said school-house, but the objection being taken that the warrant issued must be produced, the defend- ant was unable to produce it, and failed to show its loss or destruction. Parol evidence of its contents was rejected, and the plaintiff's counsel excepted. The court thereupon nonsuited the plaintiff, and ordered the motion for a new trial to be heard in the first instance in the General Term. It will be seen, from the foregoing statement of the pro- ceedings on the trial, that the plaintiff was nonsuited solely on the ground that the trustees had sufficient evidence before them to authorize them to find and decide that the plaintiff was a resident of their district, and that in so deciding they acted judicially, and are not therefore responsible for any error committed by them in so acting. In other words, that their decision that the plaintiff was a taxable inhabitant of their district was a judicial one, and having so decided, they acquired jurisdiction to assess the plaintiff, and to enforce the collection of the tax resulting therefrom, and such decision is a perfect protection to the trustees as well as the collector. It is an elementary principle of law, that inferior courts and officers of limited jurisdiction are liable if they arrest the person or dispose of the property of the citizen without hav- ing acquired jurisdiction so to do (Bigelaw v. Stearns, 12 J. K., 39), and the party affected may show in a collateral action the want of jurisdiction. This principle is subject to this modification, that when certain facts are to be proved before such court or officers in order to confer on it or him jurisdic- tion of the evidence tending to establish such fact, and is fairly sufficient to call on the court or officers to exercise his judg- ment as to the sufficiency of such proof, jurisdiction is acquired if the facts are found, although they may not be sufficient in the opinion of a tribunal sitting in a review of such a decision to establish such facts. (Miller v. Britikerlioff, 4 Denio, 118 ; Staples v. Fair child, 3 New York, 41 ; Skin ner v. KeUy, 10 id., 355.) 286 CASES IN THE SUPREME COURT [March, Palmer v. Lawrence. It is upon this principle that the judge held at the trial that the trustees acquired jurisdiction to assess the plaintiff. It was known to them that the plaintiff and his family had removed from Syracuse into their district, having hired a house for a year and went to his place of business daily in Syracuse and returned to his family every night. This was evidence of residence ; and if the principle above stated applies to the case, it fully justifies the defendant in deciding that he was a taxable inhabitant of their district. By section 100 of the school act, school district meetings are authorized to lay a tax on the taxable inhabitants of the dis- trict, to build school-houses, etc. ; and by section 126 the trus- tees are authorized to make out a tax-list of every district tax voted by a district meeting, containing the names of all the taxable inhabitants residing in the district at the time of mak- ing out such list, and to annex thereto a warrant for its col- lection. From these provisions it follows that, in order to render a person liable to assessment for school purposes, he must be a, taxable inhabitant of the district when the tax-list is made out by the trustees. If he is not a taxable inhabitant, the trustees have no juris- diction to assess him. In Suydam v. Keyes (13 J. R., 444), a collector was sued for selling the property of a non-resident to pay a school-tax assessed on him for property owned by him in the district. The court say the trustees had no jurisdiction to assess the plaintiff, as he was not an inhabitant of the district, and both trustees and collector were trespassers. So much of the case as holds the collector liable, has been since repeatedly overruled. But the liability of the trustees has not been questioned except by two or three cases, to be referred to hereafter. In Morse v. James, (Wils. 122,) an act of parliament gave an inferior court jurisdiction over minors, it was held that a plea of justification must aver that the defendant was a minor at the commencement of the suit. A commission of bankruptcy issued against a person 1872.] OF THE STATE OF NEW YORK. 287 Palmer t>. Lawrence. exempt from the operation of the bankrupt law, is void. (Perkin v. Proctor, 2 "Wils., 382.) An act of the legislature of Massachusetts authorized the justice of the peace to issue his warrant for the arrest of persons living in his county found traveling on Sunday; it was held that a person not an inhabi- tant was not liable to arrest, and as to him the warrant was void. (Pearce v. Atwood, 13 Mass., 324, 342.) So if an execution be issued by a justice against a persoi. exempt from such process, the justice is a trespasser. (Per cival v. Jones, 2 J. Gas., 49 ; in Bowman v. jRuss, 6 Cow., 234, 237.) An application was made by the overseer of the poor of a town, pursuant to a statute authorizing it, for a warrant to seize the property of the plaintiff on the ground that he had absconded, leaving his family to be supported by the town. It was held that in an action by the plaintiff .for the unlawful taking of his property the overseer must aver that the plain- tiff had left his family a charge on the town. Such averment was necessary to give jurisdiction, and plaintiff might rebut it by replication. A party is not estopped by the proceedings and judgment of an inferior jurisdiction to question its jurisdiction, and enough must be stated by the party who would avail himself of such proceedings and judgment to show that it had juris- diction. It was held in Nichols v. Walker (Cro. Car., 394) that a rate made by the justices of A. on an inhabitant of B. is void. The Supreme Court of Massachusetts, in Agry v. Young (11 Mass., 220), held that an action of trespass could be maintained against the assessors of the town of Pittston for illegally assessing the plaintiff, who,when the tax was assessed, was a resident of Hallowell. In the following cases, the assessors or the churches were held liable for illegally assessing the plaintiffs for the support of divine worship after the plaintiffs had ceased to be con- nected with the church for whose benefit such taxes were 288 CASES IN THE SUPREME COURT [March, Palmer v. Lawrence. assessed. (Ingalls v. JSosworth, 5 Pick., 498 ; Sumner v. First Parish in Dorchester, 4 id., 361 , Gage v. Currier^ id., 399.) In Wise v. Withers (3 Cranch, 331), a collector of militia fines was held liable in trespass for seizing and selling the pro- perty of the plaintiff, upon a warrant issued by court-martial in the district, to collect a fine imposed on him for not per- forming military duty, he being a justice of the peace in said district and by law exempt from such duty. MARSHALL, C. J., says : It follows that a court-martial has no jurisdiction over a justice of the peace as a militia man ; he could never be legally enrolled, and it is a principle that a decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the officer who executes it. I shall not refer to any more of the cases on the quest! or of jurisdiction. They will be found collected in 2 C. &H notes, 997, and 9*98, 1016, etc. In all the cases cited relating to taxation, those who levied the tax were bound to inquire, before making the assessment, whether the party they proposed to assess was an inhabitant of their town, district or parish, just as the trustees in the case before us were bound to inquire. It is to be presumed they did inquire and became satisfied that the party was a resident ; yet their decision, that they were residents, was held not to confer jurisdiction, and of course it followed they were not judicial. If assessors could confer on themselves jurisdiction by deciding that the persons whose names were entered on the list were residents of their towns or districts, the greatest injustice might be done to a large class of per- sons, without any means of protection against or escape from it. If residing with one's family for a few days between the 1st of May and the 1st of July is sufficient evidence to author- ize the assessors of a town to assesss a person found by them upon such evidence to be a resident, and if such decision is conclusive on the question, a person who goes with his family to Lake George, Saratoga, New York, Sharon and Richfield 1872.] OF THE STATE OF NEW YORK. 289 Palmer v. Lawrence. Springs, and thence to Niagara and the lakes lying in the center of the State, may be assessed in each of the counties in which those places of resort are located, and the taxes in each and all enforced against him without notice of being taxed in either, until the collectors, with their warrants in their hands, demand his money or his property to be sold to pay such tax. It is no answer to say that such an outrage is impossible. If it may occur, we must act on the assumption that it will occur. It is by no means unusual now for a man to be taxed in two and occasionally in three towns, when he is in law and in fact taxable in but one. When assessors find that they may assess any person who appears to reside in their towns and not be personally liable for doing it, it is more than pro- bable that the power will be exercised whenever an opportu- nity is presented. To prevent this abuse the assessors must make their assessment at the peril of being made personally responsible if they assess persons who are not residents of their towns. It would seem to be a great hardship to subject men to an action who have in good faith endeavored to perform a duty imposed upon them by law, and for the non-performance of which duty they are liable to punishment. The hard- ship is very much increased when all the facts and circum- stances known to them authorize and justify their action, and the facts which render their action unlawful are known, and from the nature of the case can be known only to the per- son assessed. In some of the cases cited from the Massachusetts Reports, the person assessed for the support of the church lived in the parish and actually attended divine service in the church ; but as by law a member might obtain from the officers of the church to which he belonged a certificate that he had with- drawn therefrom, and filing it with the officers of another church with which he desired to connect himself, he was not liable to assessment in any church except the one with which he had thus connected himself, and the assessors were held LANSING VOL. VI. 37 290 CASES IN THE SUPREME COURT [March, Palmer v. Lawrence. liable for illegally assessing him, notwithstanding they saw that he was an attendant of the church for which he was assessed, and were not informed that he had united with another church. The court, in deciding the case, regret the hardship which the decision brought upon the assessors, but the protection of the public demanded that these subordinate officers should not be permitted to secure to themselves personal irresponsi- bility when acting without jurisdiction by deciding that they had it. I have searched in vain for a case in which it has been held that a court or officer of limited jurisdiction has been held to have acquired jurisdiction over the person of a man upon ex parte evidence, when the law provided for no notice to him of the proceeding and no opportunity of being heard upon the right of the officer to entertain or set on foot the proceeding, except two or three recent cases, which I shall consider before I am through. In proceedings to obtain attachments against the property of absent, absconding, concealed and non-resident debtors, the application is exparte, and the officer acquires jurisdiction if the proofs offered prove, or fairly tend to prove, the facts required by the statute to be established to entitle the party to the attachment. But the jurisdiction extends only to the issuing of the process and the seizure and sale of the property. No personal liability can be created until the party proceeded against has been served personally, or in some other way pro- vided by the legislature, with notice of the proceedings, and has had an opportunity to contest the jurisdiction of the officer. But in the case of an assessment, which is to all intents and purposes a judgment against the person assessed, such judg- ment may be obtained without notice, without an opportu- nity to contest his liability, until the collector comes with his warrant and seizes his property. This new rule of law is said to be established by the case of Brown v. Smith (24 Barb., 419), and it is the^nly case I have found in which the precise point now under consideration has been decided. 1872.] OF THE STATE OF NEW YORK. 291 Palmer v. Lawrence. The learned judge who wrote the opinion in that case cites no authority in support of his conclusion that the assessors of Plainfield acted judicially in holding the plaintiff's farm assessable in that town when it was in law assessable only in Winfield, Herkimer county, and they were not, for that rea- son, liable for the erroneous assessment, if it was erroneous; nor does he asurne to inquire whether the law, as laid down by the courts, authorized such a conclusion. The hardship of the case was so great that the law was made to bend in order to prevent it. The learned judge cites Weaver v. Devendorf (3 Den., 117) ; Vail v. Owen (19 Barb., 22) ; Van Rensselaer v. CottreU (7 id., 127) ; Van Rensselaer v, Whitbeck (7 id., 13a). In Weaver v. Devendorf, the plaintiff sued the defendants, assessors of Frankfort, Herkimer county, for assessing him when he was by law exempt from assessment. The plaintiff, when he was assessed, was an inhabitant of Frankfort ; the assessors, consequently, had jurisdiction over him and over the subject of taxation. They had, therefore, jurisdiction to determine whether the plaintiff was exempt, and their deci- sion was a judicial one, and they were not liable for making it if it was erroneous. The question now under consideration could not arise in that case, and it furnishes no authority for the proposition that a decision by the assessors that they have jurisdiction is a judicial one, and they are, therefore, relieved from liability. Vail v. Owen was, in all respects, like the former. In Van Rensselaer v. CottreU and Same v. Whitbeck, the action was for illegally assessing the plaintiff's land under water, lying in the town of Sand Lake and in the town of Green- bush, of which towns plaintiff was not a resident. This mode of assessing real property is quite different from that of assess- ing personal. The owner of personal property is taxable for it in the town or ward in which he lives, wherever within the State such property may be. But where real property does not lie in the town or ward in which the owner lives, it 292 Palmer v. Lawrence. must be assessed to the occupant, if there is one, if not, then as non-resident land. HARRIS, J., held, that because the land was located in the town in which the assessors acted they had jurisdiction, and, having jurisdiction, they acted judicially in determining how or to whom the land should be assessed. The cases have, therefore, no bearing on the question before us. There are numerous cases in which it has been held, and it is now the law, that after jurisdiction acquired, the assessors, in determining the amount of the assessment, whether the person assessed is entitled to exemption, and whether the pro- perty for which the person is assessed is subject to be assessed, are all questions to be judicially determined by the assessors, and they are not liable for errors committed in so doing. (Barhydt v. Shepard, 35 N". Y., 238; The People v. Reddy, 43 Barb., 540 ; Henderson v. Brown, 1 Caines., 92 ; Hill v. Selick, 21 Barb., 207.) Whatever weight these cases might be entitled to, they can not overrule the Court of Appeals. That court has decided the very point in the case of Mygatt v. Washburn (15 JS". Y., 316), and in The People v. Supervisors of CJienango (\. Kern., 573). These cases are alike in their facts, and the same result was arrived at by the Court of Appeals in both. The action was brought against the defendant, an assessor of Oxford, Chenango county, for illegally assessing the plain- tiff in that town, when he (plaintiff) was in fact an inhabitant of the county of Oswego. The plaintiff resided in Oxford until the 25th of May, 1846, when he removed to Oswego county, where he was assessed and paid taxes for the year 1846. On the 19th of May of that year the defendant called on the plaintiff, took down his name, and placed opposite to it $10,000 as the valuation of his personal property, and told what he had done. The assessment was completed, a tax levied against the plaintiff, and a warrant issued to collect the same ; and the collector seized and sold the plaintiff's property to pay such tax. 1872.] OF THE STATE OF NEW YORK. 293 Palmer t>. Lawrence. These facts were admitted on the trial ; and, also, that the assessors were diligent in their inquiries to ascertain the names of the taxable inhabitants of the town. The plaintiff recovered at the circuit, the judgment was affirmed at the General Term and by the Court of Appeals ; the court holding that assessors, who enter upon their assess- ment roll, as liable to be taxed for personal property, the name of a person not resident of their town or ward at the time the assessment is made, act without jurisdiction, and are liable for the damages resulting from the collection of a tax founded on such entry. This is a clear, distinct and unqualified enunciation of the principle of law which applies to and disposes of the ease before us. The respondent's counsel distinguishes the case of Mygatt from the one at bar, by saying that in the case of Mygatt there was no question for an adjudication, as it was conceded on both sides that Mygatt left the town several weeks before the day on which the assessment is by law presumed to be made. This concession was made on the trial ; but it was not con* ceded that on the 1st of July, when the assessment is pre- sumed to have been made, that the assessors knew Mygatt had removed to Oswego. The concession that the assessors were diligent in their inquiries to ascertain the names of the taxable inhabitants rebuts the idea that they had knowledge of his removal. It is practically impossible for assessors to know that each person whose name is on the roll is an inhabitant of the town on the day the roll is required to be completed. They act upon observation made and information received prior to that time; and they necessarily are compelled to assess persons without knowing whether they are in truth inhabitants of the town. Washburn knew that Mygatt was an inhabitant of his town on the 25th of May. This was evidence from which, in ninety-nine cases out of 100, he might safely assume he was still an inhabitant on the 1st of July. 294 CASES IN THE SUPREME COURT [Marcfc, Palmer v. Lawrence. If, then, Mygatt being in Oxford on the 25th of May was any evidence justifying the conclusion that he was there on the 1st of July, his decision that he was a taxable inhabitant was a judicial one. The court sanction no- such doctrines. They were not jus- tified in acting on any proof but that which showed him to be an inhabitant on the 1st of July. Their finding was not of the slightest consequence. Their judicial power did not attach until they established their jurisdiction ; not by finding it as a fact, but by proving that they acquired it. In the case of Dorwin v. Strickland, decided in this court,, the same principles were applied, and the assessors held lia- ble, notwithstanding they had very strong evidence that Dorwin was a resident of their town, while he claimed to live in another town in the same county. Until the case of Mygatt v. Washbum shall be reversed, it must be treated as decisive of the liability of assessors under the same circumstances. If assessors have the power to decide, upon facts- known to them, that a person assessed is a resident of their town, it would be a fruitless inquiry to attempt to ascertain how much or how little evidence they acted upon. From the nature of the case, it must consist of the results of their own observation and of information, the extent of which can be known only to themselves. So that it is folly to say, in one case that they had, and in another that they had not, sufficient evidence to authorize them to determine that a person assessed was an inhabitant of their town. Could it be shown that they had no knowledge whatever as to the residence of the person assessed, it might be held that their want of jurisdiction would be established ; but nothing short of that would establish it. I have not alluded to a class of cases to which reference is sometimes made in support of the right of inferior courts and officers to decide judicially that they have jurisdiction, which decision protects them, although finally held to be erroneous. I refer to cases of proceedings in rein, of which Brittam 1872.] OF THE STATE OF NEW YORK 295 Palmer v. Lawrence. v. Kinnard (1 Brod. & Bing., 432) is a very prominent example. In that case it appeared that justices of the peace were authorized to seize and take possession of any boat which had gunpowder on board ; and the defendant, a justice, had seized a vessel with masts, &c., having a large quantity of powder on board. He was sued for such seizure. The plaintiff was nonsuited; the court holding that the justice had jurisdiction of the subject-matter, which was the vessel with powder on board ; and having jurisdiction, his decision, that the vessel was a boat, was conclusive, and the action could not be maintained. This, like other cases to which I have referred, has no application to the one before us. The justice had jurisdic- tion, not because he found it, but because the property was of a description which the act of parliament placed under his jurisdiction. . I have examined this case at much greater length than the amount involved would either justify or require; but the question is a very important one ; and, notwithstanding the Court of Appeals has decided this precise point, the case of Mygatt v. WasJiburn is doubted, and a review of the cases seemed to me to be necessary. The case shows that while the plaintiff was giving evidence to show that he was not a resident of the district, he was told by the court in substance that it was of no moment what facts he might prove, as enough was shown to justify the assessors in deciding that he was a taxable inhabitant of the school district ; and as that decision was final and conclusive upon the point, it would be of no avail to show such decision to be erroneous. This ruling was excepted to ; and, if the views I have advanced are sound, it was erroneous. It is unnecessary to consider the other rulings in the case, as a new trial must be granted. New trial granted, costs to abide event. 296 CASES IN THE SUPREME COURT [June, Dunning v. Ocean National Bank of the City of New York. MAET S. DUNNING, Trustee, &c., Respondent, v. THE OCEAN NATIONAL BANK OF THE CITY OF NEW YORK, Appellant. (GENERAL TERM, FOURTH DEPARTMENT, JUNE, 1872.) No right of action vests in one named as executor in a will, and to whom is given as executor a trust under the will, but who renounces the execu- torship and refuses to assume or take upon himself the trust, to recover money belonging to the trust. In such case, the trust remains vested in the Supreme Court until the appointment by it of a trustee under the will, and the statute of limitations runs against a claim for such moneys from the time of the appointment and qualification of such trustee. Nor does an administrator with the will annexed, appointed under the will, become such trustee, or have any right of action for such moneys. APPEAL from a judgment entered upon the decision of Justice DOOLITTLE at Special Term in Jefferson county. The action was brought to recover the surplus moneys arising from sale of real estate upon mortgage foreclosure. The facts are stated in the opinion. * F. W. Hubbard, for the appellant. Lansing & Sherman, for the respondent. Present MULLIN, P. J., JOHNSON and TALCOTT, JJ. By the Court JOHNSON, J. The only question in the case is, whether the right of action was barred by the statute of limitations before the action was commenced. The money to recover which this action is brought came to the possession of the defendant on the 2d of July, 1861, by means of the foreclosure of a mortgage, and the purchase by the defend- ant of the mortgaged premises upon the sale. The purchase price at the sale exceeded the amount due on the mortgage and costs of foreclosure, in the sum of $1,833.78. This amount became and was a trust fund under the will of Mar- garet Dunning. She was the owner of the premises in fee, subject to this mortgage, and died October 19th, 1857", leav- ing a last will and testament by which she devised the said 1872.] OF THE STATE OF NEW YORK. 297 Dunning v. Ocean National Bank of the City of New York. premises to the executor named in the will, in trust for cer- tain purposes, and appointed "William S. Jennings sole execu- tor. The trust is conceded to be a valid trust. Jennings refused to take upon himself the execution of the will, by a written renunciation in due form, and, as the justice before whom the cause was tried finds, never accepted the trust created by the will, but refused to assume and take upon himself the same. No trustee was appointed to execute and carry out the trust until the 28th of December, 1869, when the plaintiff was, by the Supreme Court, appointed as such trustee. She accepted the trust and duly filed the bond required by the order by which she was appointed. The plaintiff, after her appointment and acceptance of the trust, demanded the surplus money arising from the sale, of the defendant, and payment to her was refused, whereupon she brought her action. If there was no person or party in being, at the time the money in question came to the posses- sion of the defendant, who could lawfully demand and receive the same, and in whom a right of action 1 for the recovery thereof vested, or since, until the appointment of the plain tiff as trustee to execute the trust, and her accept- ance, the action is not barred. This is well settled. Until there is some one entitled to demand and take, there is no obligation to pay, and no promise can be implied. The statute does not begin to operate till then. (Douglass v. Forrest, 4 Bing., 686 ; Murray v. East Ind. Co., 5 B. & Aid., 204; Richards v. Richards, 2 id., MY ; Piggott v. Bush, 4 A. < E., 912 ; BucUin v. Ford, 5 Barb., 395 ; Vareham v. Mohawk Ins. Co., 13 Wend., 267 ; Davis v. Gaw, 2 Seld., 124.) Before there is any party who can maintain an action, or in whom any right of action has vested, there is no contract, obligation or liability, express or implied, to pay. The statute does not commence to run until a right of action in favor of some one has accrued. It is not at all like the case of a per- son under a disability to serve, in whose favor a right of action has accrued. It is a case where a right of action does LAXSIXG VOL. "VT 38 298 CASES IN THE SUPREME COURT [June, Dunning v. Ocean National Bank of the City of New York. not accrue at all until there is a party who may bring and maintain an action. The counsel for the defendant insists that the title to the real estate vested in Jennings as trustee, upon the death of the testator, under the will, notwithstand- ing his renunciation as executor. But he renounced and refused to accept the trust, also, and the estate never vested in him. He could not be compelled to take the title against his will. (Towson v. Tickell, 3 B. & Aid., 31 ; 1 Cruise's Dig., 433, Gred. ed. ; Depeyster v. Clendenning, 8 Paige, 295 ; Burritt v. Silliman, 13 N. Y., 295 ; Beekman v. Bonser, 23 id., 305 ; McCosker v. Brady, 1 Barb. Ch., 329 ; In the Matter of George W. Robinson, 37 N. Y., 261.) In such a case the execution of the trust devolves upon the Supreme Court, and it is its duty to appoint a trustee to execute the trust. Until a trustee is appointed in such case, there is no person to bring an action, and no right of action has accrued. Even if the title to the land devised in trust vests nominally in the renouncing trustee, in order to pre- vent a failure of the trust, still the execution of the trust in that case devolves upon the court, and no right of action could accrue to the nominal trustee who had refused to accept the trust. (King v. Donnelly, 5 Paige, 46.) The plaintiff did not become the trustee under the will, by virtue of her appointment as administrator with the will annexed, on the llth of March, 1869. That appointment gave her no title to the trust property, nor did it clothe her with the trust power given by the will. Th^ execution of the trust had then devolved upon this court, and it had become, by law, vested with all the trust powers which, the will had conferred. These powers could not be taken away and conferred upon another by the surrogate, by any appointment he could make. The court in which the powers had been cast and where it resided could alone clothe an appointee with the necessary power to execute and carry out the trusts. An administrator with the will annexed has no power 1872.] OF THE STATE OF NEW YORK. 299 Van Slyck v. Snell. to sell and dispose of the real estate granted by a will and divide the proceeds as by the will directed, nor to execute a power in trust relative to real estate, given to the executors by the will. (Conklin v. Edgerton, adinr., 21 "Wend., 430, affirmed by Court of Errors, 25 id., 224 ; Dominick v. Michael, 4 Sand., 374 ; Eoonee v. Phillips, 27 K T., 357, 363.) There was, therefore, no person who could prosecute an action to recover this money until the 28th of December, 1869, when the plaintiff was appointed trustee by this court and accepted the trust, and no right of action had before that time accrued against the defendant. As was said by BEST, C. J., in Doug- lass v. Forrest (supra), a " cause of action is the right to prosecute an action with effect, and no one has a cause of action until there is somebody he can sue." And in Murray v. East India Co. (supra), ABBOTT, C. J., says, " we think it cannot be said that a cause of action exists, unless there be also a person in existence capable of suing." The statute, therefore, did not begin to run until the appointment of the plaintiff as trustee and is no bar. The judgment must therefore be affirmed. Judgment affirmed. JACOB VAN SLYCK, Appellant, v. JACOB SNELL and HENBY SNELL, Respondents. (GENERAL TERM, FOURTH DEPARTMENT, JraE, 1872.) A joint judgment against several in an action of lort may, on appeal, be reversed as to one or more of the defendants and affirmed as to the others. Plaintiff and defendant occupied adjoining lands. Plaintiff removed a portion of the line fence between them and notified defendant that he had done so, and to remove his cattle, which defendant did not do, but shortly afterward removed the remainder of the fence. Held, that defendant was liable for damage done to plaintiff's field by the cattle, after the entire fence between them had been removed. 300 CASES IN THE SUPREME COURT [June, Van Slyck v. Snell. APPEAL from the judgment of a County Court reversing the judgment of a Justice's Court. The facts sufficiently appear in the opinion. J. A. & A. B. Steele, for the appellants. Link & De Camp, for the respondent. Present MULLIN, P. J.; JOHNSON and TALCOTT, JJ. By the Court JOHNSON, J. The action was trespass for defendants' cattle breaking and entering the plaintiff's close, eating and destroying the grass, and trampling upon and injuring the soil of a certain meadow. The plaintiff recov- ered judgment in the Justice's Court where the action was brought, which was reversed on appeal by the County Court. The judgment was a joint judgment against both defend- ants, and the reversal was placed upon the ground that no cause of action was made out by the evidence in the Justice's Court against Jacob Suell, one of the defendants, and that a judgment against both was, therefore, erroneous, not only as to him, but as to his co-defendant also, and that the entire judgment must, as matter of law, be reversed for that reason. This decision is in accordance with the decision in the case of Farrel v. Calkins (10 Barb., 348), decided in 1851, in the sixth judicial district, and was based upon it. That decision does not appear to have been expressly over- ruled, though its correctness has been questioned in the case of Gerard v. Stagg (10 How. Pr. R., 369), in the New York Common Pleas, and in the Supreme Court by HOGEBOOM, J., in the third judicial district, in the case of Field v. Mould (15 Abb., 6, 11). A contrary opinion was also expressed in the eighth district by MARVIN, J., in Kasson v. Mills - (8 How. Pr. R., 377, 379). See also note to case of Story v. The New York & Harlem R. E. Co. (6 N. Y., 86), in which the reporter seeks to show that in a judgment against several in an action of tort, such judgment may on appeal be 1872.] OF THE STATE OF NEW YORK. 301 Van Slyck v. Snell. reversed as to one or more of the defendants and affirmed as to the others. In the reporter's note above referred to, the case of Campbell v. Perkins (afterward reported in 8 N. T., 430) is cited, where there was a joint judgment in favor of several defendants, which was affirmed by the General Term of the Supreme Court, but which in the Court of Appeals was affirmed as to one of the defendants, but reversed and new trial ordered as to the others. That was a case where several defendants were sued as common carriers, and they all had judgment on the ground that there was no lia- bility on their part to the plaintiff. But one of the defend- ants had established in the court below a discharge under the bankrupt law. The Code, 366, is very explicit upon this point, and seems to leave no room for doubt or hesitation. " In giving judg- ment, the court may affirm or reverse the judgment of the court below, in whole or in part, and as to any or all the par- ties, and for errors of law or fact." It is difficult if not impossible to see how any question could ever have arisen under this clear and unqualified provision of the Code, in respect to the right and power of the court, on appeal, to reverse a judgment as to one defendant and affirm it as to the other, especially in an action of tort, where a cause of action had been made out against one, and not against the other. In such a case the plaintiff is entitled to a several judgment against the one, but not against the other. The error is in the joint judgment. But the party against whom a good cause for judgment has been established has no just reason to complain. It is the innocent party alone who has been injured, in contemplation of the law, and this injury may be redressed by a reversal of the judgment as to him in the appellate court, leaving it to stand as to the other. This course would be altogether in furtherance of justice, and ought to be followed, if the power is clear, for the reason that it saves the trouble and expense of a new trial and puts an end to further litigation. This court may render the judg 802 CASES IN THE SUPREME COURT [June, Van lyck v. Snell. ment which the County Court should have rendered. (Brow- ndl v. Winnie, 29 N..Y., 400.) The case of Farrell v. Calkins (supra) was like the case at bar, an action of tort, against several defendants, but the decision in that case is not only in direct opposition to the provision of the Code, but is contrary to the decision of the Court of Appeals in Campbell v. Perkins (supra), and was, as we think, clearly erroneous, and ought not to be followed. The County Court was clearly right in holding that no cause of action was shown upon the trial against the defend- ant, Jacob Suell. He was the general owner of a part of the cattle which committed the trespasses, but had rented them with his farm to the other defendant, who had the sole cus tody and control over them when the injury was done. Tho latter was alone liable, under the circumstances, for the injury. The County Court also properly held that the removal by the plaintiff of his part of the line fences did not affect his right of action. It appears from the evidence that the line fence between the two farms was one which both parties had been in the habit of removing late in the fall, to prevent its being carried away by the spring floods, and replacing again in the spring after the high water was over. The plaintiff, before the commission of the injuries, removed his portion of the fence first, and gave notice to the defendant Henry to take out his cattle. The defendant Henry, within a very few days afterward, removed his portion of the line fence also, but did not take his cattle out of the field separated by the line fence from plaintiff 's meadow. There being no line fence kept up by either party, the defendant Henry was liable for the injury done by his cattle upon the plaintiff's land. The judgment of the County Court must, therefore, as to the defendant Jacob Suell, be affirmed ; and as to the defend- ant Henry Suell, the judgment of the County Court must be reversed and that of the justice affirmed. Ordered accordingly. 1872.] OF THE STATE OF NEW YORK. 303 Pardee v. Leitch. CHAKLES PARDEE v. DAVID K. LEITCH ; JOHN PACKWOOD v. SAME DEFENDANT. (GENERAL TERM, FOURTH DEPARTMENT, Jtrcre:, 1872.) An attachment upon shares of bank stock, and other property incapable of manual delivery, can only be executed where the property is held by a corporation or association by leaving a certified copy of the warrant with the officers or managing agent of such association or corporation, mentioned in section 235 of the Code. It is not a good execution of an attachment, under that section, if the war- rant is left with a person not an officer or managing agent of the associa- tion, who forwards it by mail to such an agent, by whom it is received. It is ground for setting aside a sale of bank shares, under execution issued upon a judgment in an action, that the shares have not been attached at the commencement of the action. The proper and only remedy of the judgment debtor, whose shares have been unlawfully sold under the execution, is by motion to set aside the sale. Where an assignee in bankruptcy of such judgment debtor has been appointed, he represents not only the debtor but also his creditors, and therefore is the proper person to make such motion. One who has, by assignment from the purchaser at the sale, become vested with the interest of such purchaser in the property sold, is a proper and necessary party to such motion. MOTIONS to set aside a sale under execution. The grounds of such motions, and the questions raised and decided, suffi- ciently appear by the opinion. William J. Wallace, for the appellants. Jliscock, Gifford & Doheny, for the respondents. Present MULLIN, P. J. ; JOHNSON and TALCOTT, J J. By the Court JOHNSON, J. It is clear enough that Doheny, the defendant's assignee in bankruptcy, is a proper party to make these motions to set aside the sales under the executions issued upon the judgments in the above-entitled actions. The ground of the motions is that the sales were irregular and void, being sales of property not liable to be 804 CASES IN THE SUPREME COURT [June, Pardee v. Leitch. sold on execution, unless it had been first levied upon by an attachment at the commencement of the action, and which had not been so levied upon. The judgment debtor could have made the motion, but for his discharge in bankruptcy, and his assignee in bankruptcy, who represents not only the judgment debtor but all his creditors, is the only person by whom it cun properly be made. (Gould v. Mortimer, 26 How. Pr. R., 167.) It is equally clear that Earll was a pro- per party moved against in the motion. The plaintiffs in the judgments purchased at the sheriff's sale, and Earll is the assignee or purchaser of the rights thus acquired by them. He takes the rights they acquired by their purchase, and can have no other or greater. It has always been held that a person not a party to a judgment, by appearing and bidding and making a purchase at a judicial sale, became so far a party to the action as to make him a proper and necessary party to a motion to set aside such sale. For the same reason an assignee of a party to the judgment, who purchases at the sale, is a proper and necessary party to such a motion. The proceeding by motion, in a case like this, to set aside the sale, is the proper form for obtaining the remedy. Indeed, it is the only remedy which the law allows to a party to the action, or to the representative of his rights and interests in the transaction. The question then arises whether the sale by the sheriff of the property in question was not irregular and void ; or voidable at the election of the defendant in the judgment or his assignee in bankruptcy. The property which the sheriff undertook to sell, and the plaintiffs in the judgment under- took to purchase at the sale, was the right and interest of the defendant in the judgments, in 107 shares of the stock of Tompkins County Bank, and seventy-three shares of the stock of the Bank of Syracuse, of the par value of $100 per share. This stock had been transferred to the American Express Company, and stood in its name on the books of the respect- ive banks. Before the commencement of these actions, an 1872.] OF THE STATE OF NEW YORK. 3()f> Pardee v. Leitch. action had been commenced by the defendant and others against the American Express Company to recover this stock, and a judgment had been rendered in their favor, by which it was adjudged and determined that they were the owners of the stock, and that the express company had no title thereto. The express company had appealed from this judgment to the General Term of the Supreme Court, where the judgment was affirmed ; and from the latter decision to the Court of Appeals, where the appeal was pending when these actions were commenced. The property and interests of the defend- ant were therefore of a character which could not be sold on execution, unless it had been previously levied upon, and was held by the sheriff under the attachments issued in the actions. When the actions were commenced the defendant was out of the State, and they were commenced by attach- ment and summons. No copy of the attachments was served upon any officer of either of the banks, nor upon any person who was, or ever had been, either president or other head of the American Express Company, or secretary, or cashier, or managing agent thereof. The execution of the attachment by the sheriff was by ser- vice of a certified copy of the attachment, with a notice of the defendant's interest in the bank stock upon one Alfred Higgins as the agent of the American Express Company, and upon the attorneys of the defendant in the action against the express company. Higgins was never an officer or managing agent of the express company. He had once been a servant or employe of that company ; and even that connection had ceased some two years before the commencement of these actions. The attachment had, therefore, never been executed upon,- or in respect to, this property ; and the sheriff, by virtue thereof, had never acquired any interest in it or control over it what- ever. The service of the copy and notice upon the defend- ant's attorneys in the other action was a mere nullity. The Code ( 235) directs how the attachment shall be executed in regard to property of the description of that in question, and LANSING VOL. VI. 39 306 CASES IN THE SUPREME COURT [June, Pierce v. Wright. upon whom, in such a case, service shall be made ; and it can be lawfully executed in no other way. Until it is executed in the manner there prescribed, the property is not in the custody of the law or its officer, and no lien is created in favor of any one by reason of its having been issued. Even if Fargo, under the circumstances, could be properly regarded as the managing agent of the American Express Company, the act of Higgins, in sending the copy of the attachment and notice served upon him by letter to Fargo, was no execution of the attachment for any purpose. It was not an official act, any more than any other piece of informa- tion communicated by one unofficial person to another. Whether, therefore, the defendant' s right or title, at the time the attachments were issued, had vested in the bank stock, or was inchoate, and vested in the judgment against the express company, the attachments were never executed by the sheriff upon the property, in either form, and no lien or claim was ever fastened upon it. The sale, under the executions issued upon the judgments, was, therefore, irregular and wholly void, and conferred no right or title upon the purchasers, or their assignees, and was properly set aside. The order must, therefore, be affirmed, with ten dollars costs of appeal. Order affirmed. SAMUEL PIERCE, Respondent, v. CHARLES I. WEIGHT et al., Appellant.' (GENERAL TERM, FOURTH DEPARTMENT, JUNE, 1872.) Where the authority of the defendants in an action to restrain the issue of town railroad bonds, as a cloud upon title to real estate was set forth by an allegation that they were or claimed to be commissioners for the issue of the bonds, but that the plaintiff was ignorant of the truth of their claim. Held, that a temporary injunction was erroneously granted. Where the statute makes affidavits and consents of tax-payers acknow- ledged and filed as required evidence of the facts therein contained, such facts may not be attacked collaterally. 1872.] OF THE STATE OF NEW YORK. 307 Pierce t>. Wright. The remedy in case of inaccuracy of the affidavits and consents is by pro- ceeding to correct the record or set it aside. The provision requiring an affidavit of consents of a proportion of per- sons, &c., upon the last assessment roll is satisfied, if the affidavit states that the requisite number of consents have been obtained according to the rolls of the last two years, consents having been obtained in both years. The act of 1871 (chap. 127) was, it seems, designed to extend the time for procuring assents and to enable proceedings already begun to be com- pleted. APPEAL from an order continuing a temporary injunction issued upon a complaint. The action was brought to have the defendants, who are the commissioners of the town of Webster, in the county of Monroe, perpetually enjoined and restrained from issuing the bonds of the town for the purpose of aiding in the construction of the railroad of " The Lake Ontario Shore Railroad Company." The facts consti- tuting the alleged cause of action, as stated in the complaint, sufficiently appear in the opinion. A temporary injunction was granted, which was continued at Special Term, and from the order continuing the injunction this appeal was brought to the General Term. J, N. Pomeroy, for the plaintiff- J. C. Cochrane, for the defendants. Present MULLEN P. J". ; JOHNSON and TALCOTT, JJ. ft By the Court JOHNSON, J. Assuming, for the purpose of reviewing the question presented by this appeal, that the plaintiff, as the owner of real estate and a tax-payer of the town of Webster, might have a standing in court to maintain an action of this character upon a proper and sufficient com- plaint (a question which we do not propose now to decide, and in regard to which we express no opinion), it is clear we think that upon this complaint the action, and consequently the injunction, cannot be maintained. The remedy sought by the action is preventive only. The complaint asks that 308 CASES IN THE SUPREME COURT [June, Pierce v. Wright. the defendants, Wright, Billings and Jennings, be enjoined and perpetually restrained from issuing bonds for, and in behalf of, the town of Webster, in Monroe county, to aid in the construction of the railroad of the " Lake Ontario Shore Railroad Company," on the ground that such bonds, if issued, will be a lien and incumbrance upon the plaintifl's property in that town, and a cloud upon his title, and inflict upon him a perpetual and irreparable injury. This is the head of equi table jurisdiction, under which the relief is sought. What the plaintiff attempts to show by the facts stated in his com- plaint, and insists that he has shown, is, that the defendants have no lawful right or authority to issue the bonds for and in behalf of the town, which they are threatening, and claim- ing the right, to issue. The first difficulty is that the complaint does not show that these three individuals are officers of the town, having any authority by legal appointment, or color of appointment, to act as commissioners for the purpose of bonding the town. What the complaint states on this subject, is, that they " are or claim to be" such commmissioners, " but whether they were duly appointed as such commissioners this plaintiff is not informed and is not able to say." Instead of stating that they are commissioners duly appointed and authorized to act and issue such bonds in a proper case under the statute, it ignores the fact altogether, and does not even allege that they are commissioners de facto, acting under color of any appointment. All the fact that is- stated, therefore, on this subject, is that they either are or claim to be commissioners, with an allega- tion of ignorance as to the truth of the claim. This is to be construed most strongly against the pleader, and it amounts but to this : Here are certain persons who say they are com- missioners of the town, but whether they are or not we neither affirm nor deny. It does not appear, therefore, from any fact stated in the complaint, that there is any foundation for their claim, and the bonds, should these defendants issue them, would be utterly void and in no respect binding upon the 1872.] OF THE STATE OF NEW YORK. 3Q9 Pierce o. Wright town, or an apparent lien or cloud upon the plaintiff 's estate or title. An attempt, or a threat, by an individual or indi- viduals, to do an act, which, when done, would be a nullity, neither binding upon nor injurious to any one, according to the allegations of fact in a complaint, or, for aught which appears there, lays no foundation whatever for an action to restrain the commission of such act. But there is a still more serious difficulty. The plaintiff alleges and charges in the complaint that although it appears by the consents filed, and the affidavits of the assessors, that consent has been obtained of persons owning more than one-half of the taxable property of said town, and of more than one-half of the tax-payers, as appears by the last assessment roll, yet, in fact, some of the persons signing the consents were not tax-payers of the town, and did not own the property assessed to them, and that the owners have never given their consents ; and that, deducting the names of such persons so signing consents, the remaining consents would represent much less than one-half the taxable property of the town ; and also, that several persons signed consents who did not own all the property assessed to them on the assessment roll, and only a portion thereof, and that one-half of the tax-payers and property-owners of the town have not given the necessary consents to the bonding of said town. This raises the question whether every or any individual tax-payer in the town may challenge and assail the facts as they appear from the record, which the statute makes evi- dence, by action, in this collateral way. The statute provides how the facts necessary to authorize the issuing the bonds of the towns shall be ascertained and determined. Consent must be obtained in writing and proved by a subscribing wit- ness in the form and manner prescribed, or acknowledged as deeds are required to be acknowledged for the conveyance of real estate, " of persons owning more than one-half of the taxable property assessed and appearing upon the last assess- ment roll of such town, and a majority of tax-payers, as appears by such assessment rolls respectively/' These facts, 310 CASES IN THE SUPREME COURT [June, Pierce v. Wright. when ascertained, are to be proved by the affidavits of the assessors of the town, or a majority of them, and it is made their duty to make such affidavit. The consents and the affidavit, with a copy of the assessment roll, are then to be filed in the office of the clerk of the county, and in the office of the clerk of the town, " and the same, or a certified cop\ thereof, shall be evidence of the facts therein contained and certified in any court of the State, and before any judge or justice thereof." The statute "makes this evidence of the jurisdictional and all other facts. It is in the nature of a record and imports absolute verity, so long as it remains as a record upon the files of the county and town clerk's offices. The object of this action is not to correct the record so as to make it conform to what the plaintiff claims the facts to be, but to prevent the commissioners from acting and performing the duty imposed upon them by law, upon what the statute declares shall be evidence in all places throughout the State. The law makes it evidence of the facts " therein contained and certified," before this court and every other in the State, and for all purposes. The statute does not make \tprima facie evidence merely, but evidence absolutely and unquali- fiedly. The issue which the plaintiif in his complaint ten- ders is that this record is a false witness, which does not certify the truth, and should not therefore be regarded and acted upon, or held as evidence of the facts, as the statute ordains. In other words, we are called upon to say that what the law makes evidence is no evidence ; and that public officers shall not act upon it, and perform their duties in accordance with it, as the law requires. It is quite obvious that this cannot be done in this way. It would be quite intolerable to allow every tax-payer in the town to drag public officers into court in this way, and put them to the expense and trouble of defending the public records, and proving them to be true, should evidence be allowed to be given to the contrary. The plaintiff has 1S72.] OF THE STATE OF NEW YORK. 311 Pierce v. Wright plainly mistaken his remedy. Public records cannot be assailed and controverted in this collateral manner. His only remedy was by a direct proceeding to correct the record, if it was in any respect incorrect, and reform the character of the statutory witness, so that it should speak " the truth, the whole truth, and nothing but the truth ;" or to set it aside, and get rid of it altogether. This principle was established in the case of The People v. Zeyst (23 N. Y., 140). It was there held that it could not be proved by parol, in an action, that an official record was not true. Starkie, in his work on Evidence, thus lays down the rule : " When written instruments are appointed by the immediate authority of the law, or by the compact of the parties, to be the permanent repositories and memorials of truth, it is a matter both of principle and of policy to exclude any inferior evidence from being used, either as a substitute for such instruments, or to alter or contradict them." (2 Stark., 544, 5th Am. ed.) Here the statute has made this record " The repository and memorial of the truth," and the witness thereof. This principle is entirely consistent with the ruling in the case of Starin v. The Town of Genoa (23 N. Y.,439). In that case it was held that parol evidence was competent to show that the written assent of two-thirds of the tax-payers of the town had not been obtained, and thus contradict the certificate of the commissioners, expressly upon the ground that the statute in that case had not made the certificate evi- dence. But the contrary of that rule, even in the class of cases" arising under that statute, has been held in the United States Circuit Court. Whether the plaintiff's remedy was by a common-law certiorari, to bring up the record and proceed- ings for review, or by some other process to correct or get rid of the record, it is unnecessary now to decide. It is enough that it cannot be controverted or its verity challenged or put in issue in this way, if, upon its face, it is fair, and in compli- ance with the statute. This view is in accordance with the decision of the Court of Appeals in the case of ffowland v, CASES IN THE SUPREME COURT [June, Pierce v. "Wright. Mdredge (43 N. Y., 457). The ground of the decision in that case was that the examination of the consents, and the assessment roll, for the purpose of ascertaining and determin- ing whether a majority of the tax-payers had consented to the bonding of the town, was in the nature of a judicial pro- ceeding, and that the affidavit embodying the determination was conclusive evidence of the fact so ascertained and deter- mined. The principle is, that the verity of a record, or document, or other matter which the law makes evidence, is not an issuable fact, constituting a cause of action, in a collateral action, unless such record, document or other matter is by law made mereprima facie evidence, which is not the case under the statute in question. The statute makes the con- sents, copy of the assessment roll, and affidavit, when filed, evidence, and gives no right of appeal to any other body or tribunal. No one would think of bringing and attempting to maintain an action to prevent the execution of a judg- ment or decree, on the ground that the verdict or finding was against the weight of evidence, and contrary to the real facts existing and involved in the issue. And yet this is precisely analogous in principle to such an action. The complaint also alleges that the affidavit of tne assessors shows that the requisite number of consents have been obtained as appears by the assessment rolls of 1870 and of 1871, and this, it is claimed, is not in accordance with the statute. The point is that the last assessment roll in the year in which any consents were obtained must govern, and could alone be referred to in making up the affidavit for record. But we are of the opinion, in a case situated as this was, that both assessment rolls may properly be referred to. A portion of the consents were, as appears by the complaint, obtained in 1870, and the residue in 1871, and the affidavit shows that the requisite number of consents had been obtained, as appeared by both rolls. If it so appeared by both rolls, it necessarily so appeared by the last. The con- 1872.] OF THE STATE OF NEW YORK. 313 Smith v. Smith. sents obtained before 1871, and in the year 1870, were, we think, properly filed and counted. The act of 1871, Session Laws of 1871, chapter 127, amending the act of 1869, under which the consents in 1870 were obtained, was evidently designed to extend the time for procuring assents, and to enable proceedings to be completed, which had already been begun, but which had not been com- pleted when the amendatory act was passed. It is of no con- sequence whatever who procured the consents to be signed by the tax-payers. If their consents were obtained, and proved or acknowledged according to the statute, as it is to be presumed they were, that is sufficient. It should be observed that there is no allegation in the complaint that the assessors had not jurisdiction to entertain the proceedings before them, and to make a determination, nor that they had been guilty of any fraud in their action in the premises. We are of the opinion, therefore, that the facts stated in the complaint do not constitute a cause of action in favor of the plaintiff against the defendants, or either of them, and that the order continuing the injunction was erroneous and should be reversed, and the order granting the injunction vacated, with ten dollars costs of the appeal. Order reversed. G. HAKRISON SMITH, Appellant, v. PHEBE SMITH, Respondent. (GENERAL TERM, FOURTH DEPARTMENT, JUNE, 1872.) A widow is entitled to have set off to her as her dower, by metes and bounds, to be held by her in severally, the one-third part of land of which her husband has been seized in fee in severalty, during coverture, and has conveyed an undivided portion to another person, she not joining with him in the conveyance. She is also entitled to have set off to her, by metes and bounds, as her dower therein, the one-third part of lands conveyed to the husband and a third person, as tenants in common during coverture, and so held by them at the time of the husband's death, to be held by her as. tenant in common with the other owner. LANSIXG VOL. VI. 40 314 CASES IN THE SUPREME COURT [June, Smith v. Smith. Although the statute in relation to proceedings for admeasurement of dower does not require any notice to be given of the meetings of the commissioners, yet such notice is customary and proper, and should be given ; but where it appears that a party interested, who complains of the omission to give such notice, knew of such meetings, and that no injustice has been done him by the decision, Held, that the commission- ers' report should be confirmed, notwithstanding no formal notice of then- meetings had been given. No appeal can be taken, under the provisions of the Revised Statutes, from an order confirming such a report, unless the commissioners are appointed by the County Court or a surrogate ; but an appeal to the General Term from the order of the Special Term, confirming the report of the commis- sioners appointed by the Supreme Court upon petition, may be 'upheld under the provisions of chapter 270, Laws of 1854, which allows appeals to be taken in any special proceeding from any order or final determina- tion made at Special Term to the General Term. Such an appeal does not, however, stay the proceedings, without the order of the court or a judge thereof. The costs of an appeal from the order confirming the report in such pro- ceedings, where the appointment has been made by the Supreme Court, are not those given by the Revised Statutes, but are regulated by the provisions of chapter 270, Laws of 1854. THE facts are stated with sufficient fullness in the opinion. L. J. Dorwin, for the appellant. M. H. Merwin, for the respondent. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. By the Court JOHNSON, J. This is an appeal from an order made at Special Term, confirming the report of commissioners appointed to admeasure the dower of the respondent in cer- tain lands described in her petition, of which her husband died seized, or was seized during her coverture. The pro- ceeding for the admeasurement of dower was by petition to this court, under the provisions of the Revised Statutes. (2 R. S., 488.) From the petition and the other papers before us, it appears that the lands in which the respondent sought to have her dower admeasured consisted of three several par- cels. First. A parcel of about eighty-four acres, of wljich the respondent's husband was, during coverture, seized in fee in 1872.] OF THE STATE OF NEW YORK. 315 Smith v. Smith. severally, and an equal, undivided half of which he conveyed to the appellant, by a conveyance in which the respondent did not join. Second. A parcel of land containing about twenty acres, which was conveyed to the appellant and the respondent's husband as tenants in common, and was held by them as such at the time of the decease of said husband. Third. Another parcel consisting of about two acres, owned and held by the appellant and the said husband at the time of his death, in the same manner as the parcel last above described. In respect to the first parcel, the commissioners admeasured and set off to the respondent, by metes and bounds, one-third of the premises, to be held by her in seve- ralty ; and in respect to the two other parcels, they admea- sured and set off, by metes and bounds, to the respondent, one-third of each, to be held by her in common with the appellant. No complaint is made that the admeasurement is in any respect unfair or unjust as respects measure or quantity. The complaint in regard to the merits is that the respondent was not entitled to have her dower admeasured and assigned in either parcel by metes and bounds, inasmuch as the appellant and the husband, at the time of the death of the latter, held each and all of said parcels as tenants in common. What- ever force there may be in this objection in other respects, it clearly does not apply to the first parcel of land. The appel- lant took a common interest and title in that parcel by con- veyance from the respondent's husband during her coverture, and subject to her right of dower therein. She had, there- fore, a clear right to have her dower admeasured and assigned in that parcel by metes and bounds in severally. Without going further, our statute (1 R. S., 742, 16) provides that no " act, deed or conveyance executed or performed by the husband without the consent of the wife, evidenced by her acknowledgment thereof, in the manner required by law to pass the estate of married women," shall prejudice the right of the wife to her dower, or preclude her from the recovery thereof, if otherwise entitled thereto. But in the 316 CASES IN THE SUPREME COURT [June, Smith v. Smith. two other parcels the respondent never had any right of dower, except in the undivided half of which her husband died seized; and had the commissioners admeasured and assigned her dower in these two parcels by metes and bounds, to be held by her in severally, the portion of the order affirming such admeasurement would have been erroneous, and we should have been compelled to reverse it. The pre- cise point made by the appellant's counsel is that it is erro- neous in such a case to admeasure or assign by metes and bounds, and such is the general language of the authorities on that question. Thus in 1 Co. Lit., 32 , " for where he (the husband) was seized in common, there she cannot be endowed by metes and bounds." (Also, Lit., 1, 4i.) Arid Kent, in his Commentaries (4 Kent Com.), citing Co. Lit., says : " Of lands held in common, the wife has a third part of the share of her husband assigned to her, to be held by her in common with the other tenants." So in Cruise Dig. (Greenl. ed., 170), the rule is laid down in this form: "For where he (the husband) is seized in common with others, his widow cannot be endowed by metes and bounds ; for she, being in pro tanto of her husband's estate, must take it in the manner in which he held it." But this, I apprehend, means no more than that the widow, in such a case, cannot be endowed by metes and bounds, to hold in severalty against the co-tenants of the husband. And so it is laid down in Bright on Husband and Wife (1 Bright, 371) : " Thus, if the husband be tenant in common in fee with B., and die before partition, his widow's dower must be assigned to her to be held in common also, and not in . severalty." Here the admeasurement, though by metes and bounds, is to be held by the respondent in common with the appellant. As to him, she holds in common by the very terms of the assignment or admeasurement, the same as did her husband in his life- time. As against the heirs of the husband, and purchasers from him subject to a dower right, under our laws, the widow is always entitled to assignment or admeasurement by metes and bounds, to be held by her in severalty. The effect of the 1872.] OF THE STATE OF NEW YORK. 317 Smith v. Smith. present admeasurement is to allow the respondent to hold in eeveralty against the heirs of the husband, but in common with the appellant, and this we think is right and according to the true intent, spirit and meaning of the rule. The appellant is not injured by it in any conceivable way. He holds the entire estate, after the admeasurement, in common with the widow and heirs of the former co-tenant, the same precisely as he did before with the co-tenant in his lifetime, and he has no reason to complain, and no just or meritorious grounds for an appeal. The respondent's dower must be assigned to her in some form, before she has any estate in the premises. Before assignment her right is a right resting in action only. Our statutes make no express provision for the admeasurement of dower in the case of lands held by the deceased husband in common with others ; but they do give (2 R. S., 488) to " any widow," who shall not have had her dower assigned to her within forty days after the decease of her husband, the right to apply to this court, in the manner in which the application was here made, to have her dower admeasured. This includes widows of persons who held lands in common with others, as well as of those who held the lands in severalty. Section 13 of the statute prescribes the manner in which the admeasurement shall be made in everj case. " They shall admeasure and lay off, as speedily as pos- sible, the one-third part of the lands designated in the order for their appointment as the dower of such widow, designating such part with posts, stones or other permanent monuments." The statute has been fully complied with in this respect in this case, in making the admeasurement, and we entertain no doubt that it has been properly made as respects the rights of the appellant. In any view, as his rights have been in no respect invaded or affected by the admeasurement, he ought not to be allowed to prosecute the appeal. On the question of notice to the appellant of the meeting of the commissioners to decide upon the admeasurement, the statute does not in terms provide for any notice, but the prac- 318 CASES IN THE SUPREME COURT [June, Smith v. Smith. tice is to give such notice, and it ought to be given in all cases, so that all parties interested and who may desire to be heard may have the opportunity of being heard in regard to the determination which the commissioners are to make. In this case no formal notice was given. The commissioners in their report state that the appellant appeared before them at their meeting. But by a subsequent affidavit by two of their members, it appears that the appellant did not actually appear before them, but that he knew of the meeting and might have appeared had he wished so to do. It also appears that the action of the commissioners was postponed and delayed, from time to time, by verbal stipula- tion between the attorneys of the respondent and the appel- lant respectively. In short, there is no doubt, from the papers before us, that the appellant and his attorney knew of the proceedings of the commissioners as they progressed, and might have appeared before them and been heard, had they desired to appear. As no complaint is made of any unfairness or injustice done by the commissioners in making the admeasurement, the mere technical omission to give notice afforded no ground for refusing to confirm the report The Revised Statutes, under which the proceedings for admeasurement were had, do not give an appeal from the order of confirmation, except in cases where the commission- ers have been appointed by the County Court or by a surrogate. The appeal from the order here, if it can be upheld, must have been taken under chapter 270 of the Laws of 1854, which allows appeals to be taken in any special proceeding from any judgment, order or final determination, made at Special Term, to the General Term. The order confirming the report of the commissioners in a proceeding of this kind is in the nature of a final order or determination, and is, therefore, appealable under that statute. Such an appeal, however, does not stay the proceedings without the order of the court or a judge thereof, which does not appear to have been given in this case. As this proceeding is not an action, there can be no doubt 1872.] OF THE STATE OF NEW YORK. 319 Westcott . Fargo. that it is a special proceeding within the definition given by the Code. By the third section of the act above referred to, it is provided that in special proceedings and on appeal there- from costs may be allowed in the discretion of the court, and when so allowed shall be at the rate allowed for similar ser- vices in civil actions. This appeal not being the one provided for by the Revised Statutes, under which the proceedings were had, the costs of the appeal there provided for do not apply to it, but the costs of the appeal are regulated by the act of 1854. "We are of the opinion that the order of the Special Term confirming the report of the commissioners was right and should be affirmed, with costs of the appeal, as upon appeals from judgments in actions, to be paid by the appel- lant. Judgment affirmed. GEOKGE WESTCOTT and DE WILLOW W. NOKTHKUP, Respond- ' r ents, v. WILLIAM G. FARGO, as President of the American Merchants' Union Express Company, Appellant. (GENERAL TERM, FOURTH DEPARTMENT, JUNE, 1872.) In an action to recover from an express company the value of goods lost by them, it appearing that the goods had been delivered to defendant at its regular place of business, and a receipt therefor given to plaintiffs, and that they were entered upon a shipping bill for their destination, which they never reached, and defendant could give no account of them after such delivery to it, Held, that these facts were sufficient to justify a finding of loss by negligence on the part of the company. Under such circumstances the plaintiff was not bound, it seems, to estab- lish affirmatively that the loss occurred by defendant's negligence, but the burden of proof was upon defendant to show the absence of neg- ligence on its part Cochrane v. Dinsmore (Court of Appeals, unreported) considered and dis- tinguished. Plaintiffs had been in the habit of doing business with defendant, and had been furnished by defendant with a book of its blank receipts, from which the receipt for the goods, valued at more than fifty dollars, had been taken and sent to defendant to sign when delivered. The receipt 320 CASES IN THE SUPREME COURT [June, Westcott v. Fargo. contained a stipulation that the carrier's liability for loss or damage should not exceed fifty dollars, unless the true value should be stated in the receipt. A blank left in the receipt for the value was not filled' and it appeared that neither defendant, nor its agent who received and receipted the package, knew that the value of the goods exceeded fifty dollars. Held, That plaintiffs were bound by the stipulation contained in the receipt, but that the loss of goods, as it proceeded from negligence, was not covered by it, it not being stipulated that the defendant should be exempted from liability for loss arising from negligence. Held, further, that this rule would apply, although the stipulation provided that defendant should only be liable as forwarder. Held, further, that an exemption from liability by the stipulation in the receipt, unless the claim was presented within thirty days from the accruing of the cause of action, did not apply to a loss by negligence ; and, moreover, that such presentation was not a condition precedent to the right of action, and, as a limitation, should have been set up by answer. It is no valid objection to an action against a joint-stock company, that the plaintiffs are corporators or members of the company. APPEAL from a judgment entered upon the report of a referee. The action was brought to recover the value, with interest, of a package of merchandise, containing 135 mink skins, the property of the plaintiffs, and of the value of $1,134.30, which had been delivered to the defendant for delivery to the plaintiffs. The complaint alleged as follows : That at the times hereinafter mentioned the plaintiffs were copartners in trade, doing business as such in Utica, Oneida county, New York, under the firm name and style of George "Westcott & Company. That the American Merchants' Union Express Company is, and was at the times hereinafter mentioned, a joint-stock company or association composed of more than seven share- holders, who are owners, and jointly and in common inte- rested in the property of said company, and on account of said ownership and interest are liable to this action. That William G. Fargo is, and was at the times hereinafter mentioned, president of said association. That the said American Merchants' Union Express Com- 1872.] OF THE STATE OF NEW YORK. 321 Westcott v. Fargo. pany is, and was at the times hereinafter mentioned, organ- ized and existing under and in pursuance of the laws of the State of New York, and engaged in the business of forward- ing and transporting for hire and reward, as a forwarder and common carrier of goods and chattels in this State. That on or about the 7th day of January, A. D. 1870, at the city of New York, one bale or package of merchandise, containing 135 mink skins, the property of the plaintiffs, and of the value of $1,104.30, was delivered to the said American Merchants' Union Express Company, as such car- rier ; to be by the said company forwarded and transported to the city of Utica, in the county of Oneida, and State of New York, and there safely delivered to these plaintiffs, to whom the said bale or package was consigned. That the said American Merchants' Union Express Com- pany, as such forwarders and common carriers, then and there accepted and received the said goods and merchandise ; and then and there, in consideration of a certain reasonable reward, to be paid therefor by the plaintiffs, undertook and promised safely and securely to forward, transport and con- vey the said goods and merchandise from the said city of New York to Utica, aforesaid ; and then and there, to wit, at the last named place, safely and securely to deliver the same to these plaintiffs, to whom the said goods were consigned. That the said American Merchants' Union Express Com- pany, as such common carrier, did not, and would not, safely and securely transport, forward or convey the said goods and package from the city of New York to Utica, and there, at Utica aforesaid, to securely and safely deliver the same, or any part thereof, to these plaintiffs ; but, on the contrary, the said express company, as such carrier as aforesaid, so care- lessly and negligently behaved and conducted itself in the premises that, by and through the carelessness, negligence and default of the said express company, its agents and ser- vants, the said package and goods, so being, and of the value, as hereinbefore stated, were not conveyed to Utica nor delivered to these plaintifls to whom they were consigned LA.NSING VOL. VI. 41 322 CASES IN THE SUPREME COURT [June, Westcott v. Fargo. but that said goods, and the whole thereof, became, and were lost to these plaintiffs, although the same were duly and often demanded by these plaintiffs of the said American Merchants' Union Express Company. Wherefore the said plaintiffs demanded judgment against the said defendant, as president of the American Merchants' Union Express Company, for the sum of $1,104.30, with inte- rest thereon from the 7th day of January, 1870, besides the costs and disbursements of this action. The defendants' answer in the action was as follows : " Defendants admit that the constitution of the American Merchants' Union Express Company is as is alleged in the complaint, and that William G. Fargo is president of said company or association. Defendants deny each and every allegation of negligence or want of care, and each and every other allegation in the said complaint contained, except as is hereinafter otherwise stated. Defendants aver that, at or about the time mentioned in the complaint, there was delivered to the American Mer- chants' Union Express Company, at the city of New York, a package, which defendants allege to be the same mentioned in the complaint, marked " Geo. Westcott & Co., Utica, New York," to be forwarded by the said company to Utica, New York, according to the terms of the agreement hereinafter mentioned ; that the contents of said package, or the value thereof, were not known or made known to said company j and that they have not at any time had, and have not now, any knowledge or information sufficient to form a belief as to what were the contents of said package, or the value thereof; that at the time of the delivery of the said package to the said company, to be so forwarded as aforesaid, there was delivered by the shippers of the said package to the said com- pany, for their signature, an agreement partly written and partly printed, which agreement was signed by said company, and redelivered to the shippers of said package, and accepted by them ; that said agreement constitutes the sole and only 1872.] OF THE STATE OF NEW YORK. 323 Westcott . Fargo. contract between the parties to this action respecting the for- warding and transporting of the said package ; and by the terms thereof, the said company is not liable beyond the sum of fifty dollars for the alleged loss of the said package, if the same were lost. A copy of the said agreement is hereto annexed, marked "A;" and the original thereof, now in plaintiffs possession, is hereby referred to. That by the failure on the part of the shippers of the said package to inform the defendants of the value of the same, defendants were deprived of their just reward for the trans- portation of the same. For a second defence, defendants allege that on or about the 9th day of January, 1870, they delivered to the plaintiffs at Utica, New York, a package believed by the defendants to be the one mentioned in the complaint, and that said pack- age was received by the plaintiffs, and receipted for by them. For a third defence, defendants allege that the American Merchants' Union Express Company is a copartnership, and that George Westcott, one of the plaintiffs herein, is a partner thereof. The referee found the following facts : That the allegations of the complaint numbered one, two, three and four, are true ; that at the time of the delivery of the said bale of mink skins they were so packed as not to indicate in any way the contents or value of the package ; that when the said package was presented to the agent of the express company to be carried, the agent of the plaintiffs who so presented the package offered to the agents of the express company, to be signed, a paper partly written and partly printed, of which a copy is annexed to the defendants' answer (Exhibit A) ; that the agent of the express company thereupon signed the said paper, redelivered it to the agent of the plaintiffs, and received the said package to be carried under and upon the contract evidenced by the said paper ; that neither the express company, nor its agent who received the package, had any knowledge that its value actually exceeded fifty dollars, or any notice or reason so to believe ; 324 CASES IN THE SUPREME COURT [June, Westcott v. Fargo. that the said package has not been delivered to the plaintiffs, who were the consignees thereof, although they afterward^ at Utica, applied for and demanded the same at the office of the express company at that place of the persons in charge. That at all the times mentioned in the complaint the plain- tiff, George Westcott, was and still is a shareholder and one of the owners in interest in the said express company. That the plaintiffs did not, within thirty days next after the accruing of a cause of action to them, under the said contract of carriage for the non-delivery of the said package, make a claim therefor upon the said express company in writing, in a statement to which the said contract of carriage was annexed. That the value of the said package of furs, at the time the same was delivered to the express company to be carried, was $1,104.30. Upon the facts, found as aforesaid, the referee decided, as matter of law, that the plaintiffs were entitled to recover against the defendant the value of the said package of furs, with interest, and directed judgment to be entered for $1,252.45 ; and from the judgment entered upon the report the defendant appealed, having duly excepted to the findings of the referee. The contents of Exhibit " A," referred to in the referee's report, so far as necessary to be stated, were as follows : "AMERICAN MERCHANTS' UNION EXPRESS COMPANY, ) NEW YORK, January 7th, 1870. j " Received of J. Ruszits one bale, said to contain valued at dollars, marked Geo. Westcott & Co., Utica, K T. " Which we undertake to forward to the nearest point of destination reached by this company, subject expressly to the following conditions, namely : This company is not to be held liable for any loss or damage except as forwarders only. * * * " Nor shall this company be liable for any loss or damage of any box, package or thing, for over fifty dollars, unless the 1872.] OF THE STATE OF NEW YORK. 325 Westcott v. Fargo. just and true value thereof is herein stated. * * * This company will not be liable ijpr any loss or damage unless the claim therefor shall be made in writing, within thirty days from the accruing of the cause of action, in a statement to which this receipt shall be annexed. The party accepting this receipt hereby agrees to the conditions herein contained. " For the Company. " C. E. WOOD, Agent." H. C. Van Vorst and F. Neman, for the appellant. Charles Mason, for the respondents. Present MTTLLIN, P. J. ; JOHNSON and TALCOTT, JJ. By the Court JOHNSON, J. As we understand the find- ing of the referee, the fact is expressly found that the pack- age in question was lost through the careless and negligent conduct of the express company's agents or servants. He finds that the allegations of the complaint numbered one, two, three and four, are true. The complaint, as it appears in the case, does not contain those numbers, but it was stated upon the argument by the plaintiffs' counsel, and understood to be conceded by the other side, that number four in the complaint, as it stood at the time of the trial, contained the allegation of loss by reason of the careless and negligent conduct and man- agement of the defendants' agents and servants. But if such was not the finding in terms, and such finding should be deemed necessary to support and uphold the judgment, the court will presume that the referee did find such to be the fact, if the evidence in the case would authorize or justify such finding. (Grant v. Morse, 22 N. T., 323 ; Chubbuck v. Ver- nam, 42 id., 432 ; Rider v. Powell, 28 id., 310.) * We think the evidence before the referee was abundantly sufficient to authorize the finding of the fact of the loss of the 'package by the negligence of the defendant. It was received by the defendant at its regular place of business, and receipted to the plaintiffs, and was put on the shipping bill for its place 326 CASES IN THE SUPREME COURT [June, Westcott v. Fargo. of destination. After this the defendant's agents can give no account of it whatever, or at least do not, and profess to be unable to do so. The very fact that after receiving it in this way the defendant's agents paid so little attention to the package as to be unable to give any other or further account of it, is sufficient of itself to justify a finding of loss by negli- gence, and even gross negligence, if that were necessary to create the liability and uphold the judgment. The defendant's counsel insists that before a recovery can be had for a negligent loss of goods, it is for the plaintiff to show affirmatively how the loss occurred, and that its occur- rence was through the defendant's negligence. But in most cases, and especially in a case of this kind, it would be utterly impossible for the plaintiffs to make any such proof. The goods are exclusively in the possession of the defendant, and the plaintiffs have no access to them, and presumptively can give no account of them after delivery, except as they derive information from those having the lawful custody. If they do not and cannot tell, how can the plaintiffs ? The defend- ant ought to know, and the plaintiffs have no means of know- ing. If the rule contended for were the true one, there could be no recovery for loss, in a vast majority of cases, where the recovery depended upon establishing negligence. Such a rule would be quite too dangerous, and too destructive to the interests of all bailors to be sanctioned or countenanced. On this point we are referred to the case of Cochran v. Dins- tnore, decided in the Court of Appeals, and not yet reported, and have been furnished with the manuscript opinion of the chief justice of that court in the case. But the decision in that case does not sustain the position contended for. In that case it was known or supposed to be known how the loss occurred. It was by the burning of the vessel in which the money or property was carried. And the judge charged the jury, that unless the defendant gave evidence to show that the ship did not take fire through the negligence of those in charge, the plaintiff was entitled, as matter of law, to recover; that the burden was upon the defendant to 1872.1 OF THE STATE OF NEW YORK. 327 Westcott v. Fargo. negative the fact of negligence, and to show that there was no negligence in regard to the origin of the fire in the vessel. This was held to be erroneous in point of law, and that the case should have been submitted to the jury upon all the evi- dence, to find whether the loss was in fact occasioned by the defendant's negligence. That decision does not, as we con- ceive, affect this case, because here the fact of negligence is found, or is presumed to have been found, from the evidence. Assuming that the fact of loss by the defendant's negli- gence is established, is the defendant liable beyond the amount of $50 ? The value of the package lost was $1,104.30. The defendant was a common carrier, and, but for the receipt or contract it entered into on receiving the goods, would clearly have been liable for the full value. We understand the rule to be now well settled, that a com- mon carrier may limit his common-law liability in certain particulars and to a certain extent by express contract with the owner or shipper of the goods. (Dorr v. 2V. J. Steam Nav. Co. 11 N. Y., 485 ; Mercantile Mut. Ins. Co. v. Calebs, 20 id., 173) ; Bissel v. N. Y. Central E. R. Co., 25 id., 442; Parsons v. Monteath, 13 Barb., 353; Moore v. Evans, 14 id., 524; Meyer v. Harnden's Express Co. 24 How., 290 ; French v. Buffalo, N. S. & Erie R. R. Co., 4 Keyes, 108.) But they cannot limit their liability by a mere notice, even though the notice is brought to the knowledge of the person whose property they carry. (Blossom v. Dodd, 43 ]N". Y., 264 ; Dorr v. N. J. Steam Nav. Co., supra.) It must be by express contract. Questions have sometimes arisen whether a receipt given the carrier for the goods, containing a clause limiting and restricting his liability, operated as a contract to that effect, between the carrier and the owner of the property carried under it, as in the case of Blossom v. Dodd, just cited. In such cases it has generally, if not uniformly, been held that whether such receipt was to be regarded as a contract depended upon the question whether the owner of the goods CASES IN THE SUPREME COURT [June, Westcott v. Fargo. taking the receipt knew its contents, or is presumed to have known them. If he knew, or is presumed to have known, from the nature of the transaction, the law infers his assent and makes it the contract between the parties. (Blossom v. Dodd, supra.) Otherwise there is no meeting of minds and and no express contract. In the case at bar, the plaintiffs must be presumed to have known the contents of the receipt and to have assented to it. They furnished the blank which the defendant's agent signed. They had previously been in the habit of doing business with the defendant, and had been furnished with a book containing these blank printed receipts, which they kept, and from which the receipt in question was taken by them and sent to the defendant to be signed when the goods were delivered. The blank left in the receipt for the value of the goods was not filled, and the referee finds that neither the defendant nor its agent, who had received and receipted the package, had any knowledge that its value exceeded fifty dollars, or any notice or reason so to believe. We are of the opinion, therefore, that the referee correctly held that the package was received to be carried according to the terms of the receipt, and upon the contract of which the receipt was the evidence. The defendant is not, therefore, liable in any event beyond the sum of fifty dollars, if the loss falls within the contract and is covered by it. But it does not. Loss occasioned by the carelessness or negligence of the defendant or its agents or servants is not mentioned in terms in the contract, and the law will not presume that a loss so occasioned was intended by the parties. The contract is to be construed most strictly against the carrier, where it rests in a receipt signed by him only ; and where it stipulates for a restricted liability in case of loss, it will not be construed to embrace a loss arising from the careless and negligent acts of the carrier or his servants, unless a loss from such cause is provided for in express and unequivocal terms in the contract. ( Wells v. Steam Navigation Co., 8 N. Y., 375 ; Stedman v. 1872.] OF THE STATE OF NEW YORK. 329 Westcott v. Fargo. Western Transportation Co., 48 Barb., 97 ; Hooper v. Wells, Fargo & Co., 5 Am. Law Eeg. [N". S.], 16, and note to case.) And the rule of construction is the same where by the terms of the contract the carrier is only to be held liable as a forwarder. The exemption in such cases only applies to losses for which the carrier would be liable as insurer in his capacity of common carrier. This we regard as a sound and salutary rule of construction. The law seems to be now well settled in this State, that a carrier may, by express contract, exempt himself from liabil- ity for a loss arising even from the carelessness and negligence of his servants or agents. But in all such cases where the exemption for loss from such cause is expressly provided for in the agreement, it has been uniformly held that such contract had no application to losses occasioned by the fraud or gross negligence of the car- rier or his servants and agents, and that the stipulation for exemption only applied to losses arising from want of ordi- nary care. (Guildaume v. Hamburg & Am. Packet Co., 42 N. Y., 212 ; Wells v. The Steam Navigation Co., 8 id., 375 ; Alexander v. Green, 7 Hill, 544.) But here there is no such stipulation, and it must be held that the contract does not relate to losses arising from the negligence of the defendant or its agents. The same rule is applicable to the stipulation in respect to presenting the claim within thirty days from the accruing of the cause of action. But, beside this, the presentation of the claim within the time and in the manner there specified, is not a condition pre- cedent to the right of action, and as a limitation it is not set up in the answer. (Place v. The Union Express Co., 2 Hil- ton, 19.) It is no valid objection to the action that the plaintiffs are corporators or members of the company. The action is against the corporation. We are, therefore, of the opinion that the judgment is right, and should be affirmed. Judgment affirmed. LANSING VOL. VI. 42 380 CASES IN THE SUPREME COURT [June, Clift . Northrup. JOSEPH F. CLIFTJ Respondent, v. ANSON NOKTHKUP, Appellant. (GENERAL TERM, FOURTH DEPARTMENT, JUNE, 1872.) A claim of defendant against plaintiff, arising out of partnership transac- tions between them, the partnership being terminated before the com- mencement of the action, may be set up as a counter-claim in an action, on contract, and the amount due defendant as such partner may be ascertained by an accounting between the parties. The answer set up, in relation to such counter-claim, that the partnership terminated at a certain day, which was several months before the com- mencement of the action. That plaintiff conducted the business and acted as financial manager, and had possession of the funds and all payments, and that he had in his possession all the capital and profits of the business. Held, it sufficiently appeared from these allegations that the counter-claim was in existence at the commencement of the action. APPEAL from a judgment entered in favor of defendant upon a trial by the court without a jury. The facts are stated in the opinion. Hiscock, Gifford & Doheny, for the appellant. William J. Wallace, for the respondent. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. By the Court JOHNSON, J. The action was upon con- tract for goods sold and delivered. The answer contained no denial of the complaint, but set up by way of defence a counter-claim in favor of the defendant against the plaintiff growing out of partnership transactions between plaintiff and defendant, in which there was alleged to be due the defendant as such partner the sum of $125. The answer asked for an accounting between the parties as partners ; that the amount found due the defendant on such account- ing might be. set off and allowed against plaintiff 's claim, and a judgment rendered in favor of the defendant against the plaintiff for the balance. The plaintiff replied, denying 1872.] OF THE STATE OF NEW YORK. 331 Clif t v. Northrup. the counter-claim. On the trial of the action "at the circuit before the justice holding the same, without a jury, the defendant offered to prove the facts stated in his answer, but the justice, upon objection by plaintiff's counsel, overruled the offer, and held that the answer did not constitute a defence to the action, and rendered judgment in favor of the plaintiff for the amount claimed in the complaint. To this ruling the defendant's counsel excepted. This ruling was erroneous. The precise question was decided the other way on demurrer in Gage v. Angell (8 How. Pr. E,., 335), and that decision has been cited with approval in the Court of Appeals in Chambers v. Lewis (28 K. Y., 462) and in Oum- mings v. Morris (25 id., 628), and also in several cases in the Supreme Court. (See also Gray v. Goodman, 12 N. Y., 266 ; Phillips v. Graham, 17 id., 270 ; Blair v. Claxton, 18 id., 529 ; Bank of Tor.onto v. Hunter, 20 How. Pr. R., 292.) The counter-claim comes directly within section 150 of the Code. For the purposes of this question the answer must be assumed to be true. It is, then, a claim existing in favor of the defendant against the plaintiff in the action, and the sub- ject of a several judgment between them. It arises out of contract, being a demand between partners, and arising from partnership transactions. That a demand of one partner against another, growing out of the partnership, is a demand arising on contract, cannot be denied. A partnership has its foundation in contract, express or implied, and cannot exist without it. The Code ( 150) expressly authorizes counter- claims of an equitable character, if they arise on contract, to be set up against legal claims arising on contract in an action at law. The plaintiff's counsel seeks to avoid the difficulty by insisting that it does not appear by the answer that the coun- ter-claim existed at the time the action was commenced, and that, for aught that appears in the answer, it may have accrued between the time of the commencement of the action and the drawing and verification of the answer. The decision at Special Term obviously was not placed upon any such 332 CASES IN THE SUPREME COURT [Nov., Haggerty v. The People. ground; but upon the broad ground that a claim of that kind was no defence in such an action. But it does appear suffi- ciently by the answer that the defendant's counter-claim was due when the action was commenced. The action was com- menced June 1, 1871. The answer alleges that the partner- ship, out of which his claim grew, commenced in December, 1870, and continued until about the 20th of January, 1871, when it was dissolved and abandoned by mutual consent. It also alleges that the plaintiff conducted the business and acted as financial manager, and had possession of the funds and all payments ; and that he now has in his possession all the capi- tal and all the earnings and profits, amounting in all to $250. The plain intendment is that the plaintiff had had this fund, at least from the time of the dissolution, which was more than four months before the action was commenced. The judgment must therefore be reversed and a new trial ordered, with costs to abide event. Judgment reversed. THOMAS HAGGEKTY, Plaintiff in Error, v. THE PEOPLE, Defendants in Error. No. 1. (GENERAL TERM, THIRD DEPARTMENT, NOVEMBER, 1872.) If during his term of punishment a prisoner escapes from jail or State prison, where he is confined upon conviction of crime he may be retaken after the term and held to answer for the residue of the time for which he was imprisoned, under the provisions of 20, 2 R. S., 685. The clause of that section which directs the prisoner's imprisonment until tried for an escape, or discharged on failure to prosecute therefor, is not a limitation of the time of imprisonment upon his first offence, but is, it seems, intended to provide for his retention for additional punishment for the escape. A prisoner, escaped during his term of imprisonment, and retaken after the time for which he was imprisoned has expired, may be returned to State prison, for a time equal to the remainder of his term unserved, by the court which sentenced him, upon information or suggestion on behalf of the people and trial of the question of his identity and escape. 1872.] OF THE STATE OF NEW YORK. 333 Haggerty . The People. The Court of Sessions of Albany county has jurisdiction to direct such reimprisonment of a criminal upon whom it has passed sentence. The provision of the Constitution (art. 1, 6) which declares that " no person shall be held to answer for a capital or other infamous crime * * * unless on presentment or indictment of a grand jury," does not affect the remedy by " information " to enforce punishment already duo under sentence. THIS is a writ of error to review a proceeding in the Albany Sessions, on returning the plaintiff in error to the Clinton State prison to serve out an unexpired term, on the ground that he had escaped from the prison. At the Albany Sessions, held on the 13th of March, 1872, Haggerty being brought to the bar, the district attorney pro- duced to the court an indictment of Haggerty, in September, 1868, in the same court, for robbery in the first degree, with the minutes of his conviction for robbery in the second degree, and sentence to the Clinton prison for three years. The district attorney thereupon filed an information or suggestion in the following form : At a Court of Sessions held in and for the county of Albany, at the City Hall in the city of Albany, on the 13th day of March, 1872. Present Hon. T. J. VAN ALSTYNE, County Judge. EDWARD GIBBONS, and WM. J. REED, Justices of the Sessions. THE PEOPLE OF THE STATE OF NEW YORK against THOMAS HAGGERTY. And now at this day, before this court, come the people of the State of New York, by Nathaniel C. Moak, their district attorney, and allege and show to this court that heretofore, to wit, of September term of a Court of Sessions, held in and for the said county of Albany, in the year of our Lord 334 CASES IN THE SUPREME COURT [Nov., Haggerty . The People. one thousand eight hundred and sixty-eight, the defendant, Thomas Haggerty, was duly indicted for the crime of robbery in the first degree. That afterward, at a Court of Sessions duly held in and for the said county of Albany, on the eighteenth day of September, in the year of our Lord one thousand eight hundred and sixty-eight, the said Thomas Haggerty was duly tried, by and before the said court, found guilty and duly convicted of the offence of robbery in the second degree. Whereupon, the said court having jurisdic- tion of the offence and of the person of the defendant, duly sentenced the said Thomas Haggerty to be confined in the State prison at Clinton, at hard labor, for the term of threo. years. That the said Thomas Haggerty was duly committed to the said State prison at Clinton, under and pursuant to such conviction and sentence ; that on the fourteenth of October, in the year of our Lord one thousand eight hundred and sixty-nine, the said Thomas Haggerty, while confined as a prisoner in the said State prison, upon a conviction for the said offence of robbery in the second degree as aforesaid, did escape therefrom and go at large whithersoever he would, and hath ever since been and continued so at large. Wherefore, the said people pray that this court will order the execution of its former judgment, and that execution thereof may be awarded against said Thomas Haggerty ; that he be returned to said State prison at Clinton, there to be imprisoned and confined therein, at hard labor, for the remainder of the term for which he was sentenced to be imprisoned as afore- said, and for that portion of the said imprisonment he has not suffered, to wit, for the term of one year eleven months and four days. NATHANIEL C. MOAK, District Attorney. Whereupon, the said allegations and suggestions having been duly filed and entered of record by order of the said Court of Sessions, upon this it is asked and demanded of the said Thomas Haggerty, in his own proper person, by the said court, whether he hath anything to say why execution of the 1872.] OF THE STATE OF NEW YORK. 335 Haggerty v. The People. former sentence and judgment of this court should not be awarded against him, who nothing saith ; whereupon the court ordered the following to be entered upon the record : Upon this the said Thomas Haggerty said nothing ; where- upon the court directed the clerk to enter a plea or answer by the said Thomas Haggerty that he is not the person men- tioned in the record, and, if so, that he did not escape as alleged by the said people by their district attorney. And the same was .so entered. To this the said people of the State of New York, by Nathanial C. Moak, their district attorney, pleaded as follows : To which the said people, by their district attorney, reply, ore tenus, that he, the said Thomas Haggerty, is the same per- son and did escape as before alleged, and this the said district attorney is ready to verify. On motion of the district attorney a jury was then empan- neled to try the issues thus presented, and a trial thereof had. The district attorney produced a copy of the indictment, minutes of the conviction and sentence, certified by the county clerk, as required by the Revised Statutes. (2 R. S., 739, 10; 2 Edm. St., 763.) He then proved by McCotter, a deputy sheriff at the time of Haggerty's conviction, that he was the person convicted, and that after his conviction he .conveyed him back to the jail. The district attorney then produced and read in evidence the copy minutes of Haggerty's conviction on which he was committed to the prison, and proved by O'Brien, one of the keepers of the prison, that on the 14th of October, 1869, while Haggerty was in his gang, he and four others forcibly escaped from the prison, and that Haggerty had never been returned. No evidence was offered by Haggerty. The court charged the jury, who returned a verdict " that the defendant, Thomas Haggerty, was indicted, tried, con- victed, sentenced and committed to the State prison, under and in pursuance of the sentence, as stated in the allegations of the people ; also, that he escaped from said prison at the 336 CASES IN THE SUPREME COURT [Nov., Haggerty v. The People. time and in the manner stated in the said allegations, and hath ever since been and continued so at large." The record proceeds; "Whereupon the said Court of Sessions, in and for the said county of Albany, rendered and gave the following judgment and sentence : " It is ordered, adjudged and determined by this court that the execution of the said former judgment thereof be awarded against said Thomes Haggerty ; that he be returned to said State prison at Clinton, there to be imprisoned and confined therein at hard labor for the remainder of the term for which he was sentenced to be imprisoned as aforesaid, and for that portion of the said imprisonment he has not suffered, to wit, for the term of one year, eleven months and four days." Jacob H. Clute, for the plaintiff in error. The County Sessions, of Albany county, had no jurisdiction over the person of Thomas Haggerty, or of the case on the indict- ment for robbery, after sentence passed on the 18th day of September, 1868. The commitment had been made by the court, and the defendant had been imprisoned in the State prison at Clinton. If he escaped, and was retaken before the expiration of the term for which he had been sen- tenced, he could be taken back to the prison and kept there until the term expired, and no longer. There is no statute giving the County Sessions power to order the enforcement of its sentence, after an escape and the expiration of the term of imprisonment. The defendant could not be tried except on indictment. (Art. 1, sec. 6, Cons. S. IS". Y. ; Art. 5 [Amdts. 1Y89] Cons. U. S.) Nathaniel C. Moak, district attorney, for the people. The method or proceeding adopted by the district attorney to return Haggerty, was correct. By article one, section seventeen, of the Constitution of this State, such parts of the common law as are not abrogated thereby, or changed by statute, are made a part of the law of this State. 1872.] OF THE STATE OF NEW YORK. Haggerty v. The People. At common law there were two methods of proceeding against persons as criminals, one by information presented by the prosecuting officer upon his own motion, and the other by indictment by a grand jury. (1 Chitty's Cr. Law, 844-847 ; Cole on Grim. Informations, 9 ; 1 Bish. Grim. Proc. [2d ed.], 36, 141-147, 712-715; 1 Whart. Cr. Law, 213, 214; see also 1 Bishop Grim. Proc. [2d ed.,] 141.) Our Constitution (article 1, 6) upon the subject of crimes is as follows : " No person shall be held to answer for a capital or other- wise infamous crime, * * * unless on presentment or indictment of a grand jury ; and in any trial, in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel as in civil actions." This prohibition applies only to a presentment on which a party charged with crime is sought to be placed on trial there- for and convicted thereof, and consequently leaves the com- mon-law remedy, by information, in force in all other cases where it may be necessary to resort to it. The present proceeding was not a trial of Haggerty for the crime of robbery, nor for the crime of escaping from the prison. (1 Bish. Crim. Proc, 2d ed., 1208-1212.) In the King v. Okey and others (1 Levinz., 61) it is said : " Whereupon they pleaded that they were not the persons, and issue was taken thereon and a jury returned immediately to try it, which was done ; and they were not permitted to challenge peremptorily, for they are not now to be tried for the treason, but only of the identity of persons." In a note to Sir Charles Ratcliffe's Case, in ISHowell State Trials, 438, giving the case from the records of the court, it is said the accused was denied a peremptory challenge ; " this being a proceeding very different from the trial upon a not guilty, in an original prosecution on a charge of high treason or other crime, the identity of the person being the single feet to be inquired of, and a case in which the crown had a right by law to proceed instanter." Indeed, it was not a trial for any crime, nor was defendant LANSING VOL. VL 43 338 CASES IN THE SUPREME COURT [Nov., Haggerty v. The People. sentenced for any. The trial took place and the sentence was imposed in 1868. Haggerty not having suffered the impris- onment imposed, the court was simply asked to enforce its former judgment, and the means to be used to determine whether the sentence had been executed was a matter of prac- tice for the court. The accused was given the benefit of a fair hearing of the question before a common-law jury, and was confronted by the witnesses to prove the facts, with the privi- lege of cross-examination. This was the method adopted in Ratdiffds Case (18 Ho well's St. Tr., 430) and in the King v. Obey (1 Levinz, 61). Black- stone gives the form of a record in such a proceeding in his appendix to the fourth volume of his Commentaries. (4 Bl. Com., Appx. No. 3.) It is not as full as that in the present case, nor did the attorney-general even file an information. It is fairer to the prisoner, however, to do so, in order that he may be apprised of what the prosecution claims. He cer- tainly is not injured by greater particularity than the law requires. It is, perhaps, true that the prison authorities, if Haggerty were caught, could reclaim him ; but suppose they did not see fit to do so, have not the people a right to insist that the sentence ol the court shall be carried out and an interest in the same being done ? In Bland v. The State (2 Ind., 608), the prisoner was con- victed of murder and sentenced to be hung. Previously to the day named for his execution he made his escape, and was afterward retaken by the sheriff, and kept in custody until the then next term of the court, at which term he was again brought before the court, and the fact of his escape, etc., being made known, the court again awarded execution against him on the former judgment. On error to the Supreme Court, the order to carry out the sentence was affirmed, the court (p. 611) saying : " There was not the slightest ground for this plea. The defendant not having been executed con- formably to the previous judgment, in consequence of his escape from custody, the court had, after his recaption, the 1 8 72.] OF THE STATE OF NEW YORK. 339 Haggerty c. The People. same jurisdiction over him, for the purpose of awarding execution, that they had when said judgment was rendered. The following case is in point : In 1716, one Charles E-at- cliffe was convicted, in England, of treason, and whilst he was under sentence of death, he escaped out of prison and went to France. About thirty years afterward, he was taken and brought before the Court of King's Bench, and was asked what he had -to say why execution should not be awarded and done upon him according to the said judgment. He pleaded that he was not the identical Charles Ratcliffe named in the record. The attorney-general replied that he was. The issue was found against the prisoner, and the court awarded execution, appointing a day for that purpose, and he was beheaded accordingly. (Rex v. Ratcliffe, 18 Howell's St. Tr., 429 ; 9 Hargrave's St. Tr., 582 ; 1 Wilson's Eep., 150 ; Foster's Crown Law, 40.) " 2d. The Court of Sessions is a continuous court. It is the court which acts, and not the persons who compose it. (Loweriberg v. The Peopl^ 27 1ST. Y., 340 ; Ferris v. The People, 35 K Y., 128; People v. Quinibo Appo, 20 N. Y., 543-547 ; People v. Nauqhton, 7 Abb. K S., 422 ; Keen v. The Queen, 2 Cox Cr. Gas., 341 ; Regina v. Charlton, 1 Crawf. & Dix, 315, 320.) It had power, therefore, to carry out its judgment at a former term, and to see that such judgment was executed. 3d. Haggerty was sentenced to suffer three years' imprison- ment at hard labor. By staying a little over a year, commit- ting a felony by escaping, and remaining secreted until after three years from his trial or first incarceration, the judgment of the court was not executed, nor had he suffered the imprisonment. The whole subject is ably and clearly treated by Mr. Bishop, in his work on Criminal Procedure (2d ed., 1208-1212). Our statutes provide (2 R. S., 685, 20 ; 2 Edm. St., 707) that " If any prisoner confined in a jail, or in a State prison, upon a conviction for a criminal offence, shall escape there- from, he may be pursued, retaken and imprisoned again, not- 340 CASES IN THE SUPREME COURT [Nov., Haggerty v. The People. withstanding the term for which he was imprisoned may have expired at the time when he shall he retaken, and shall remain so imprisoned until tried for the escape, or until he be discharged, on a failure to prosecute therefor." At the Sessions Haggerty's counsel claimed the latter clause of this section, by implication, provided that when retaken the prisoner could only be held until he could be indicted and tried for the offence of escaping. The statute of Indiana is word for word with ours. (2 G-. & H., 454, 55, 56 ; 29 Ind., 107.) In the case of Exparte Clifford (29 Ind., 106), Clifford sued out a habeas corpus to the warden of the prison in which he was confined. The warden returned (29 Ind., 107), " That he held Clifford by virtue of a commitment which is set forth in the return, showing that the latter was, by the Montgomery Circuit Court, found guilty of grand larceny, and, on the 13th of September, 1862, sentenced to be imprisoned in the State prison for three years. The return further avers that, on the 9th of January, 1863, Clifford escaped and remained at large until the 4th of April, 1867 ; that on that day he was returned (having been rearrested) to his custody, as such warden, and that he holds him by virtue of such commitment." The court below held the return good and remanded the prisoner. He appealed to the Supreme Court. That court, after reciting the statute of the State, proceeds (pp. 101-109) as follows: " The question presented for our consideration is whether the appellant can avail himself of the fact that, while he was ille- gally at large, the date at which his imprisonment was to have terminated has passed. The law is stated by Russell, in his work on Crimes (vol. 1, p. 421), thus : ' It seems to be clearly agreed, by all the books, that an officer making fresh pursuit after a prisoner, who has escaped through his negli- gence, may retake him at any time afterward, whether he find him in the same or a different county ; and it is said generally, in some books, that an officer who has negli- gently suffered a prisoner to escape may retake him wherever he finds him, without mentioning any fresh pursuit ; and, 1872.] OF THE STATE OF NEW YORK. 341 Haggerty v. The People. indeed, since the liberty gained by the prisoner is wholly owing to his own wrong, there seems to be no reason why he should have any manner of advantage from it.' The sections of the statute we have cited are contained in ' An act defining felonies and prescribing punishment therefor.' It did not require legislation to authorize the recapture of an escaped prisoner, and his confinement until he has served out the full continuous term of his sentence ; nor would we expect, in such an act, any limitation of that right. A new crime is defined and a punishment is prescribed ; that punishment, however, is fixed, without regard to whether the prisoner escaping was recaptured immediately after his escape, and has served out his full term, or whether he has not been recaptured until the date when his imprisonment would have ended has passed. If, in the latter case, he avoids serving his original term of imprisonment, and is only punished for his escape, as is the prisoner recaptured immediately after his flight, the penalty is unequal and unreasonable, and amounts to a premium upon success in avoiding capture. The inten- tion of the framers of the law must be the chief guide to the true meaning of the statute. And this is to be gathered i from the occasion and necessity of the law, from the mischief felt, and the objects and the remedy in view ; and the intention is to be taken or presumed according to what is consonant to reason and good discretion.' (1 Kent, 511.) The reason for and the object of the statute are a clue to the true meaning ; and when the real intention is accurately ascertained, it will always prevail over the literal sense of the terms. (15 Johns., 358 ; 14 Mass., 92 ; 4 Corns., 144.) For it is a maxim of interpretation, as old as Plowden, that ' a thing within the letter of the statute is not within the statute, unless it be within the intention of the makers.' (Plowd., 18, 88 ; 3 Barn. & Aid., 266 ; 4 id., 212 ; 3 Cow., 89 ; 4 Litt. [Ky.], 377.) In this act the declared purpose is to define a felony and prescribe its punishment. We do not think it was intended to change the common-law rule in regard to the capture of escaped felons, but simply to authorize the 342 CASES IN THE SUPREME COURT [Nov., Haggerty v. The People. additional holding, after the sentence of the law has been ful- filled, not evaded, until opportunity is given for a prosecution for the new offence of escape. The word ' term,' in the fifty- sixth section cited, is used, we think, as the synonym of the word 'time.' It is objected that this construction leaves it to the officer in charge of the prison to determine the question of the escape and its date, but a writ of habeas corpus will secure a judicial examination of this question." In State v. Wamire (16 Ind., 357), it was held that " if the defendant escapes after sentence and before execution, he may be retaken, brought into court, identified and resen- tenced." In Cleek v. The Commonwealth (21 Gratt, 777), Cleek was sentenced to be confined in the jail of Bath county for ten months, to commence on the 13th of July, 1870. On the 21st of September, 1870, he escaped, and was not appre- hended or rearrested and returned until the 14th of January, 1871. He sued out a habeas corpus. The court refused to discharge, and remanded him. On error to the Supreme Court of Appeals the order of the court below was affirmed, the court saying (pp. 781-784) : " Could the plaintiff' in error be lawfully detained in prison, after the expiration of ten months next succeeding the verdict, and for a period equal to that which elapsed after his escape from jail, and while he was going at large during the said term of ten months ? The jury found the prisoner guilty, and ascertained ' that he be imprisoned in the county jail for the term of ten months, and that he pay a fine of ten dollars.' The judgment of the court was for the fine and costs, and that he be imprisoned in the said jail for the term of ten months, commencing on the 13th day of July, 1870. He had not been so imprisoned for the said term at the expiration of that period of time next and after the verdict ; having escaped from said jail on the 21st of September, 1870, and remained at liberty until the 14th of January, 1871, when he was retaken and com- mitted. He will not have been so imprisoned for the said term until he shall have remained in jail, after the expiration 1872.] OF THE STATE OF NEW YORK. 343 Haggerty v. The People. of the ten months from the date of the verdict (which ten months expired on the 13th day of May, 1871), for a period equal to that which elapsed between the said 21st of Septem- ber, 1870, and the said 14th of January, 1871 ; that is, a period of three months and ^wenty-three days. He has not yet been subjected to the entire judgment of the court. He has avoided it by his own voluntary act, and that, too, a criminal act. Surely a man cannot avoid the punishment of one crime by committing another; cannot get rid of an imprisonment to which he has lawfully been condemned by breaking jail and making his escape. Nothing would seem to be plainer than this. It may be said that the jailer must be governed by the term prescribed by the judgment, com- mencing at and running continuously from the date of the judgment ; that when that term, so commencing and running, is ended, he can no longer detain the prisoner under the judgment ; and that it would be dangerous to give to a mere ministerial officer power to prolong the imprisonment for the purpose of obtaining compensation for so much of it as may have been avoided by an escape. But there would be no difficulty in ascertaining the measure of such compensation. The jailer would always know the precise period of the escape and of the recapture, and would act at his peril. If he erred, the party aggrieved would have a prompt and effi- cient remedy by habeas corpus, in which the facts, on which the legality of the act of the jailer would depend, could be easily and clearly ascertained. He would also have a remedy by an action of false imprisonment. It may be further said that the escape itself is a criminal act, for which the party may be prosecuted and punished ; that such punishment may embrace what remains due and unpaid for the original offence ; that that is the proper and only way of completing the punishment of the original offence, and that in this case a prosecution for escape has actually been commenced, and is now pending against the plaintiff in error. The answer to this objection is, that the two offences are distinct, and each is subject to its appropriate punishment. Having been 844 CASES IN THE SUPREME COURT [Nov., Haggerty v. The People. convicted of the original offence, and sentenced to punish- ment therefor, he must suffer that punishment and cannot avoid it by the commission of another offence, for which he may or may not be prosecuted and punished." In Dolarts Case (101 Mass., 219) it was held that "the sentence of a convict to imprisonment, for a term expressed only by designating the length of time, is to be satisfied only by his actual imprisonment for that length of time, unless remitted by legal authority ; and if a sentence is limited to take effect upon the expiration of a former sentence, its period will not begin to run until the first sentence has been so fully performed or legally discharged. " If a prisoner under sentence, to be imprisoned for a term expressed only by the length of time, escapes during the term, the period during which he remains at large does not abridge the period of imprisonment which remains for him to suffer before fully performing the sentence." In Leftwick v. The Commonwealth (20 Gratt., 716, 722), the Court of Appeals of Virginia held that, " Where the prisoner escaped after sentence, the court would not hear the case on appeal until he returned into custody. But that when the court had heard the case without knowledge of the escape, and reversed the judgment against the prisoner, it would not set aside the judgment." Present MILLER, P. J. ; P. POTTER and PARKER, JJ. By the Court MILLER, P. J. The statute (2 R. S., 685, 20 ; 2 Edm. St., 709) provides that " If any prisoner, con- fined in a jail or in a State prison upon a conviction for a criminal offence, shall escape therefrom, he may be pursued, retaken and imprisoned again, notwithstanding the time for which he was imprisoned may have expired when he shall be retaken, and shall remain so imprisoned until tried for an escape, or until he shall be discharged on a failure to prose- cute therefor." Under this provision I think it is clear that the prisoner escaping can be held to answer for the residue 1872.] OF THE STATE OF NEW YORK. 345 Haggerty v. The People. of the term for which he has been sentenced, even if retaken after the expiration of the time. The statute is explicit that he may be retaken and imprisoned although the time has expired, and evidently means npon the sentence from which he has temporarily escaped. The latter clause of the enact- ment was not intended as a limitation or restriction on the first, but to provide for an additional imprisonment for the escape. If it was designed merely to punish for the escape, then the provision, "notwithstanding the term for which he was imprisoned may have expired at the time when he s hal be retaken," would be useless, of no avail whatever, and should have been omitted. Besides, it is unreasonable to suppose that a prisoner, by committing another crime, could entirely evade and escape the consequences of the one for which he had been incarcerated. No such absurdity was intended ; and it would be doing violence to the spirit of the act to give it any such construction. We are not, however, without authority upon the question discussed. The statute of Indiana is precisely like our own (2 G. & H., 454, 55 and 56) ; and it has been held in that State that a prisoner who has been retaken may be compelled to serve out the remainder of his time, even although it had expired before he was arrested and taken into custody, (fix parte Clifford, 29 Indiana, 106 ; see, also, State v. Wamire, 16 id., 359 ; Cleek v. Commonwealth,^ 21 Gratt., 177 ; Dolarfs Case, 101 Mass., 219 ; Leftwich v. Commonwealth, 20 Gratt., 716 ; Bland v. The State, 2 Indiana, 608.) The prisoner being thus liable to serve out the remainder of his term upon his old sentence, I see no objections to the proceedings taken by the district attorney to return him to the State prison, and am of the opinion that the Court of Sessions of Albany county, in which the prisoner was sen- tenced, and which is a court that has a permanent status, recognized by law, had jurisdiction to enforce the sentence and to carry out the judgment which had been previously rendered. Although the proceeding is novel in this State, perhaps, because no occasion has arisen where it has been LANSING VOL. VI. 44 346 CASES IN THE SUPREME COURT [Nov., Haggerty . The People. required, yet it appears to have been sanctioned by the common- law practice in similar cases. Two. methods of proceeding against criminals are sanctioned at common law. The one by information presented by the prosecuting officer on his own motion, and the other by indictment by a grand jury. The rule is laid down by Bishop (1 Grim. Proc., 141) as follows : " According to the common law of England, as it stood at the time when the body of the English common-law was by our ancestors brought over by them to this country, the proceed- ing of criminal information is, in cases of misdemeanor (with the exception of misprision for treason, which is a misdemea- nor), a public remedy against the wrong-doer, concurrent with the indictment ; subject, however, to practical exceptions and limitations. The doctrine is in an English book stated thus : " An information for an offence is a surmise or suggestion upon record, on behalf of the king (or queen regent), to a court of criminal jurisdiction, and is, to all intents and pur- poses, the king's suit. It differs principally from an indict- ment in this, namely: that in an indictment the facts consti- tuting the offence are presented to the court upon the oath of a grand jury; whereas, in informations, the facts are pre- sented by way of suggestion or information to the court by some authorized public officer in behalf of the crown. Crim- inal informations derive their origin from the common law. They may be filed by the attorney-general, ex offieio, upon his own discretion, without any leave of the court." (See also Chitty's Crim. Law, 844, 847 ; Cole on Crim. Infs., 9 ; 1 Bishop's Crim. Proc. (2ded.), 36, 141,147,712,715; IWhar. Cr. Law, 213, 214; King v. Okey et al., 1 Levinz, 61 ; Rat- clife's Case, 18 Howell St. Tr., 430 ; Foster's Cr. Law, 40 ; 4 Black. Com., Appx. No. 3.) A prisoner who has escaped is always liable to arrest, and the subject as well as the mode of procuring his return is fully stated in 2 Bish. Cr. Pro., 1208, to and including 1211. The provision of the Constitution (art. 1, 6) which declares that " no person shall be held to answer for a capital or other infamous crime" * * * " unless on presentment or 1872.] OF THE STATE OF NEW YORK. 347 Haggerty v. The People. indictment of a grand jury," etc., applies to presentments for crimes, without affecting the remedy by information, when it may be necessary to revert to it as a proceeding to enforce punishment already incurred under a prior conviction and sentence. There being no conflict with the Constitution in such a proceeding, and the common law being in force in this State, where not abrogated or changed by statute (Const., art. 1, IT), the court proceeded according to law to determine the question whether the prisoner was the person who had been previously sentenced, and to direct that he be returned to the State prison to serve out the remainder of his time. The judge in his charge to the jury made some remarks in reference to the prisoner's not being a witness on his own behalf, but he subsequently expressly withdrew that part of the charge and told the jury that they were not to take it into consideration at all. I am inclined to think that if there was any error in this respect, it was cured by the explanation which followed the charge, within the principle laid down in Ruloff v. The Peo- ple (45 N. Y., 213). As the Court of Sessions had jurisdiction and there was no error in the proceedings, they must be affirmed. Proceedings affirmed. THOMAS HAGGERTY, Plaintiff in Error, v. THE PEOPLE, Defendants in Error No. 2. (GENERAL TERM, THIRD DEPARTMENT, NOVEMBER, 1873.) One who was convicted of a felony, and imprisoned, upon sentence, in the State prison for a term of years, escaped before the expiration of such term, and, after it would have expired, had he remained in custody, committed another felony. On being arrested and brought before the court which imposed the original sentence, that court ordered the execution of the remainder thereof. The accused, notwithstanding the objection that he was civilly dead, was put upon trial for the second felony, convicted thereof and sentenced therefor, the second term to commence at the expiration of the first. Held, that there was no error, and the conviction affirmed. 348 CASES IN THE SUPREME COURT [Nov., Haggerty . The People. THIS was a writ of error to review a conviction of the plain- tiff in error for burglary. He was indicted for having, at the city of Albany, on the 16th day of December, 1871,' burgla- riously entered the store of Francis Shields and Adam Shields, and stolen therefrom a quantity of pennies and other coins. The trial was moved at the Albany sessions on the 14th of March, 1872, when Haggerty's counsel produced a record of proceedings in the same court the day before (see preceding case), showing that on the 18th of September, 1868, Haggerty was convicted of robbery in the second degree, and sentenced to confinement at hard labor in the State prison at Clinton for three years ; that he was committed to said prison under and pursuant to such conviction and sentence ; that on the 14th of October, 1869, while so confined, Haggerty violently escaped from the prison, and had ever since been at large. The Court of Sessions, on the 13th of March, 1872, ordered its former sentence to be executed, and that he be remanded to the prison, and there confined, and suffer imprisonment for a term equal to the portion of the three years he had not suffered. Haggerty's counsel, upon that record, objected to his being tried for the burglary committed by him after his escape and while at large, in December, 1871, on the ground that he was civilly dead and could not be tried. The court overruled the objection and exception was taken. The trial then took place. The jury found him guilty, and he was sentenced to the State prison at Clinton for two years, to commence at the expiration of the first term of imprisonment to which he had been adjudged, and prisoner's counsel sued out a writ of error. Jacob II. Clute, for the plaintiff in error. The defendant was civilly dead. (3 E. S., 5th ed., p. 988, 29, 30, 33 ; O'Brien v. Hagan, 1 Duer, 664 ; 1 Parker Cr., 374.) The defendant, when his trial was moved, was under sen- tence, and, while under sentence, could not be tried for any offence committed before the first sentence. (3 R. S., title 7 ; 187-2.1 OF THE STATE OF NEW YORK. 349 Haggerty t>. The People. part 4, chap. 1, 11, 5th ed. ; Archibold's Grim. Prac., pp. 676 and 678.) Nathaniel C. Moak, district attorney, for the defendant in error. 1st. One who has been convicted of a felony and sen- tenced to imprisonment is not civilly dead, so far as proceed ings against him are concerned. As a defendant he may be served with process in the State prison and a valid judgment rendered against him. (Davis v. Dujfie, 3 Keyes, 606 ; 8 Bosw., 617.) As a part of his punishment he is deprived of certain rights. Neither an individual nor the State loses any against him. The language of the statute (2 R. S., 701, 19; 2 Edm. St., 724) is as follows : " Section 19. A sentence of imprison- ment in a State prison, for any term less than for life, sus- pends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority or power during the term of such imprisonment." 2d. It was urged in the Sessions that under the statute (2 K. S., 700, 11 ; 2 Edm. St., 723) which provides that " When any person shall be convicted of two or more offences before sentence shall be pronounced upon him for either offence, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall com- mence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second term of imprisonment, as the case may be" the defend- ant could not be tried for an offence committed by him sub- sequent to the first conviction and sentence. This point was not well taken. Mr. Bishop (1 Bish. Cr. Law, 5th ed., 953 ; 4th ed., 731) lays down the rule thus : " When a prisoner, under an unexpired sentence of imprisonment, is convicted of a second offence, or when there are two or more convictions on which sentence remains to be pronounced, the judgment may direct that each succeeding period of imprisonment shall commence on the termination of the period next preceding ; a doctrine 350 CASES IN THE SUPREME COURT [Nov., Haggerty t>. The People. however, which has been latterly, it is believed without due consideration, denied in Indiana ; and if, in such a case, the earlier period is afterward shortened by a pardon of the offence, or a reversal of the sentence on writ of error, the next following one commences immediately, the same as if the earlier were ended by lapse of time." Again he says (1 Bish. Crim. Proc., 1139, 2d ed. ; 878, 1st ed.), " Though the sentence to imprisonment ought pro- perly to specify at what time it is to be carried out, yet time is not of the essence of such a sentence. Therefore, where a defendant, who had been convicted of an assault, was sen- tenced to be imprisoned for two calendar months ' from and after the first of November next,' but did not go into prison according to the sentence ; and, at a subsequent term, it was directed that the sentence for two months' imprisonment be immediately executed, the proceeding was held to be correct. Hence, also, we have the doctrine, already mentioned, that if the prisoner was previously sentenced to a period of impri- sonment, a second sentence, for another offence, may be made by the court to commence when the former shall have expired." In The King v. Bath (1 Leach, 4th ed., 441) it was held that " a sentence of transportation may be a second time passed upon a prisoner, although the term for which he was before transported is unexpired." In Russell v. Common- wealth (7 Searg. & Rawle, 489) it was held that " When a person has been sentenced to hard labor on a former indict- ment, and the term of imprisonment is not yet expired, sen- tence of imprisonment at hard labor may be passed upon another indictment, to commence from the day on which the former sentence is to expire." In Ex parte Meyers (44 Missouri, 279), the prisoner was convicted, at the March term, 1866, of grand larceny, and sen- tenced at the same term to imprisonment for two years. Instead of being sent to the penitentiary, so his time would be running, he was detained in jail until May term, and then tried upon another indictment, for an offence committed 1872.J OF THE STATE OF NEW YORK. 351 Haggerty v. The People. before the first trial. The court very properly held that such injustice could not be perpetrated under the statute of that State, similar to our own. In this case, however, the offence was committed after the former conviction. The precise question here involved came up in the same State in Ex parte Brunding (47 Missouri, 255), where a prisoner, before the expiration of his term, escaped, committed another crime while at large, was convicted and sentenced therefor, although still under sentence for his first offence. The court held the second conviction legal, and that the term thereof commenced at the expiration of the first. The court said : " The peti- tioner asks to be discharged from the custody of the warden of the penitentiary, on the ground that the time for which he was lawfully imprisoned has expired. The facts are these : In 1864 he was indicted for two separate offences, in the St. Louis Criminal Court, and convicted and sentenced to two years' imprisonment in the penitentiary for each offence. Before the expiration of the term of his imprisonment he unlawfully made his escape ; and, while so absent and running at large, he committed the offence of grand larceny, was indicted, convicted, sentenced, and again returned to the peni- tentiary. He has duly served out the time for which he was sentenced under the first two convictions, and is now detained for the last. This detention he alleges to be illegal, for the reason that he was already under sentence. We do not see that the statute (1 Wagn. Stat, 513, 9), nor the case of Ex parte Meyers (44 Mo., 279), and Ex parte Turner (45 id., 331), have anything to do with the caee here presented. The statute provides that where a prisoner is convicted of two or more offences at the same term, the conviction in all the cases must precede the sentence in either. But here the prisoner was not in actual custody. He had escaped and was free, and, true to his nature, he could not enjoy liberty without committing crime ; and to say that, under such circumstances, there is no law to justify his punishment, is rather a startling proposition. Establish the doctrine that an escaped convict may commit any crime, and that he cannot be tried and pun 352 CASES IN THE SUPREME COURT [Nov., Haggerty v. The People. ished because he rightfully ought to be in the penitentiary instead of running at large, and it will lead to the most dis- astrous results. I am not aware of any statutory provision to support such a principle, and the counsel have referred to none. " It seems to be settled that a prisoner under an unexpired sentence of imprisonment, where he commits an offence, may be convicted, and that the succeeding period of imprisonment will commence on the termination of the period next preced- ing. (1 Bish. on Grim. Law, 731, note ; 1 Bish. on Grim. PP., 878.) It follows that the petitioner is not entitled to his discharge, and that he must be remanded." The heinousness of the offence committed after the first conviction cannot change the rule of law. In the case of the State v. Connell (49 Mo., 282), the defendant, while in confinement under a conviction for murder, killed a fellow- convict. He was indicted, tried and sentenced to be hung. On appeal he urged, among others, the same point as that here taken. It was overruled, the court (p. 285) saying : " The record shows that the plaintiff in error is a convict in the State penitentiary ; that he committed a willful murder in Boone county, for which he was tried, condemned and sentenced to be hung ; and that upon certain representations his punishment was commuted by the governor to imprison- ment for life in the State penitentiary. After he was imprisoned in the penitentiary, he killed Lafayette Burns, a fellow-convict, for which killing he was indicted in the Cole County Circuit Court, and upon his trial was found guilty of murder in the first degree, and he lias brought his case to this court by writ of error." After discussing an objection to the formation of the grand jury which found the indict- ment, the court (pp. 288-290) proceeds : " The next question presented for our inquiry is the jurisdiction of the court. The ground is assumed that, because the plaintiff in error, is an inmate of the penitentiary, under sentence for life, he is not amenable to the courts of the country, and is not punish- able for his criminal acts while in actual confinement. This 1872.] OF THE STATE OF NEW YORK. 353 Haggerty v. The People. argument is based on the idea that, as he is civilly dead r he is not responsible for anything he may do while his liability continues. The case of Exparte Meyers (44 Mo., 279) and Ex parte Brunding (47 Mo., 255) have no bearing on the question presented here. The Meyers case was decided upon the statute. The criminal court had sentenced the defendant at one term, and then held him in custody on another indictment and tried and sentenced him at a subsequent term, and he was sent up and imprisoned on both sentences. "We held that, under the provisions of the statute, the last conviction was wrong ; that the law required that when there were two convictions they must both be obtained at the same term, and take place before the sentence is pronounced in either case. In Branding's case the prisoner was confined in the penitentiary and escaped, and committed another crime while out, for which he was indicted, tried, convicted and again sent to prison. When he was placed in the hands of the officers they recognized him and compelled him to serve out his unexpired term,,and then held him to serve out his last sentence. " This we held that they had a right to do ; and we maintain the doctrine that where a prisoner, under an unexpired sen- tence, commits an offence, he may lawfully be convicted thereof, and that the succeeding period of imprisonment will com- mence on the termination of the period next preceding. It will be perceived that both convictions were of the same grade, punishable in the penitentiary, and were for defined and limited periods. But had the first sentence been for life, we cannot see that it would have precluded the second con- viction. " The executive might have pardoned the prisoner for the first offence, and in that case he would be immediately held on the second sentence. But the question here presented is a wholly different one. It is whether a criminal confined for one crime, who commits another and a greater crime, to which the law affixes a severer penalty, shall escape his merited punishment. To say that he has an entire immunity LANSING VOL. VI. 45 354 CASES IN THE SUPREME COURT [Nov., Haggerty v. The People. is a proposition monstrous in itself. Notwithstanding a man may be sentenced and imprisoned for a criminal offence, he is still amenable to and under the protection of the law. Though laboring under disabilities as to his civil rights, the law assumes over him a control and guardianship. He is criminally answerable for his acts, and he is protected from injury or violence. The law regards him still as a living human being and as a responsible agent. The statute declares that the person of a convict sentenced to imprisonment in the penitentiary is under the protection of the law, and any injury to his person, not authorized by law, shall be punishable in the same manner as if he was not sentenced or convicted. ("Wagn. Stat., 515, 23.) The provision for punishment applies to all who commit the offence and injury, whether it be a fellow-convict or any other person. As further authority showing that the statute clearly makes convicts responsible for crimes committed while serving their time in the peni- tentiary, it is only necessary to refer to the article on the treatment and conduct of convicts.' Section 14: of that act provides that whenever any convcit confined in the peniten- tiary shall be considered an important witness in behalf of the State, upon any criminal prosecution against any other con- vict, he shall be brought out on habeas corpus to testify. Section 15 declares that such convict may be examined, and shall be considered a competent witness against any fel- low-convict for any offence committed while in prison. (Wagn. Stat., 989, 14, 15.) These provisions all plainly show that the statute holds to accountability convicts committing crimes, in the same manner as, other persons. And where a prisoner is under sentence for one crime, it is no bar to his trial, con- viction and sentence for another and higher grade of crime, committed while he is undergoing imprisonment for the first. This was always the doctrine under the common law. "While the courts held that the plea autrefoit attaint, or a former attainder, was a good plea in bar, whether it was for the same or any other felony, yet there were certain well-recognized and established exceptions to the rule, among which were that 1872.] OF THE STATE OF NEW YORK. 355 Haggerty c. The People. an attainder in felony was no bar to an indictment for trea- son, because the judgment and manner of death was different and the forfeiture was more extensive. Another exception which obtained was that where a person attainted of any felony was afterward indicted as principal in another, in which there was also accessories prosecuted at the same time. In that case it was held that the plea of autrefoit attaint was no bar, but that he should be compelled to take his trial for the sake of public justice, because the accessories to such sesond felony could not be convicted until after the conviction of the principal. Hence follows the rule that a plea of autrefoit attaint was never good but when a second trial would be superfluous. (4 Sharsw. Blackst., ' 336.) It is well known that many of the convicts are employed outside the prison walls, in the public streets. Should one of them, while thus employed, kill an innocent citizen passing by, will it be for a moment contended that he could not be punished for the last great offence ? The denial of this would be so startling as to shock the moral sense. And yet the person of the convict is just as much under the protection of the law as that of the purest citizen, and he is alike shielded from violence and injury. In any aspect or view of the case I can see nothing to prevent a convict in the penitentiary from being prose- cuted or punished for the commission of a crime while he is serving out his sentence. I think, therefore, that the court had full jurisdiction, and proceeded regularly." In Dolarfs Case (101 Mass., 219), Dolan escaped from State prison, was tried for the escape before being returned, and sentenced for one year, to commence at the expiration of the first sentence. The second trial and conviction was held legal The proceeding to return Haggerty under his former sen- tence was not a trial for the offence for which he was liable to be imprisoned under that sentence. (1 Bish. Grim. Proc. 2d ed., 1208-1212.) In the King v. Okey and others (1 Levinz, 61), it is said, " whereupon they pleaded that they were not the persons, 356 CASES IN THE SUPREME COURT [March, Bailey v. Southwick. and issue was taken thereon and a jury returned immediately to try it, which was done, and they were not permitted to challenge peremptorily, for they are not now to be tried for the treason, but only of the identity of persons." In a note to Sir Charles Ratcliffds Case, in 18 Howell, State Trials, 438, giving the case from the records of the court, it is said the accused was denied a peremptory challenge ; " this being a proceeding very different from the trial upon a not guilty, in an original prosecution on a charge of high treason or other crime, the identity of the person being the single fact to be inquired of, and a case in which the crown had a right by law to proceed instanter." Indeed, the proceeding was not a trial for any crime, nor was defendant sentenced for any. The trial took place and the sentence was imposed in 1868. Haggerty not having suffered the imprisonment imposed, the court was simply asked to enforce its former judgment. Present MILLER, P. J, j P. POTTER and PARKER, JJ. The court, after consultation, without delivering a written opinion, affirmed the judgment of the Court of Sessions. WILLIAM H. BAILEY, Appellant, v. JULIA C. SOUTHWICK and others, Respondents. (GENERAL TEKM, THIRD DEPARTMENT, MARCH, 1872.) Certain real estate was devised to J. C. S., a daughter of testator, "subject to the following condition and contingency : That said gift is made and given to her and her direct lineal descendants, should she have any, in fee simple absolutely ; but in the event that she shall die, leaving no children, or descendants of any children, then * * * to the children of the survivor or survivors of my children (naming them) equally, share and share alike, &c." J. C. 8. deeded the premises to plaintiff in fee, who, having been in possession more than three years, brought this action to obtain a construction of the will as to the title said J. C. S. obtained under such devise, making J. C. S. and her children (some of whom were infants) parties defendants, and alleging that her estate waa a fee 1872.] OF THE STATE OF NEW YORK. 357 Bailey t>. Southwick. simple absolute. J. C. 8. did not answer the complaint. The adult children answered, setting up that they, under said will, with their bro- thers and sisters, were seized of an estate in fee simple subject to the life estate of their mother (J. C. S.), and asking that the court so decree. The infants by their guardian put in the usual general answer, submitting their rights to the court, and also making the same claim as the adults in relation to their' rights under the will. Held, that the complaint was properly dismissed. Such action cannot be maintained in equity, either as a bill quia timet or in the nature of guia ttmet, nor as a bill of peace, nor at law under the statute, the complaint containing no allegation that the defendants unjustly withheld possession of the premises from plain- tiff, but containing allegations contradictory thereto as to the defendant J. C. S., and showing the fact of the infancy of others of the defendants. APPEAL by plaintiff from a judgment dismissing plaintiff 's complaint at the Albany Circuit and Special Term, Decem- ber, 1870. The plaintiff brought an action, alleging in his complaint that one Jesse Buel died October 1, 1839, seized and pos- sessed of a large quantity of real estate, having made a last will and testament, which, on the 21st day of October, 1839, was admitted to probate by the surrogate of Albany county. That among other children the said Jesse left him surviving a daughter Julia, who afterward married one Henry C. South- wick, now deceased, and that the defendants other than said Julia are her children. By the will the testator deviled certain real estate to his daughter Julia. The devise and its conditions are set forth in the opinion. The complaint further alleged that said Julia C., who had, .nore than a year prior to May 1, 1863, been in possession of the premises devised to her, on that day, with her husband, conveyed them to plaintiff, with covenants of warranty and quiet possession, in fee, for a good and valuable considera- tion ; that such conveyance was duly and properly acknow- ledged, and on the llth of May, 1863, recorded in the Albany county clerk's office ; " that the plaintiff is now, and has been for the three years preceding the commencement of this action, in the actual possession of said premises." The complaint alleged that the said Julia and the defend 358 CASES IN THE SUPREME COURT [March, Bailey v. Southwick. ant Susan B. Briggs are adults, and the other defendants are minors, but, in fact, as appeared by his answer, the defendant Frank B. Southwick was also an adult. The complaint further alleged that the defendants claimed that, under the will of Jesse Buel, the fee simple was not vested in his daughter, Julia, the plaintiff's grantor, and the mother of the other defendants, but that thereby she was given only a life estate, and that her children, the other defendants, as her heirs-at-law, were vested with the fee, sub- ject to her life estate. That the plaintiff claimed that under and by said will the premises were devised to said Julia in fee absolute. That the plaintiff and defendants, other than Julia, made contradictory claims as to the effect of the devise to Julia, plaintiff claiming that, by his deed, he took a fee, and the defendants, other than Julia, that he only took an estate during Julia's life, and that they have the fee. That plaintiff was disturbed in his title by the claim of said defend- ants, and that thereby his title was under a cloud, and sub- ject to be disturbed by said defendants on the death of their mother. That plaintiff desired to improve the premises by erecting permament buildings thereon, and being in doubt as to what title he took under the deed to him by Julia, desired a legal and judicial determination and construction of the intent of the testator in the devise to Julia. The plaintiff demanded judgment for " a construction of the clause, and conditions and contingencies thereto, in said will set forth, as to the title said Julia C. Southwick obtained to the premises above set forth, to the end that the conveyance from her to plaintiff may be established, in law and equity, as a conveyance or grant of the premises aforesaid to plaintiff by said Julia C. Southwick, in fee absolute, by a construction of said will of said Jesse Buel, deceased, as a devise to said Julia C. Southwick, in fee simple absolute, that plaintiff's title to said premises in fee absolute may be quieted and established, or for such other or further judgment or decree in the premi- ses as to the court may seem meet and proper." 1872.] OF THE STATE OF NEW YORK. 359 Bailey r>. Southwick. The adult children, Frank B. Southwick and Susan B. Briggs, answered : 1st. Denying that, under the will of Jesse Buel, their mother took a fee. 2d. Affirmatively claiming " that under the will of their said grandfather, Jesse Buel, deceased, they are entitled,' in common with their brothers and sisters, to the fee simple abso- lute, of the premises described in the complaint, subject to the life-estate of their mother, Julia C. Southwick.." 3d. They pray that the court may so decree. 4rth. Ask for general relief. The infant defendants, Mary, Howard and Annie South- wick, answer by their guardian : 1st. The usual answer of infants, submitting their rights to the protection of the court. 2d. The same defence as their adult brother and sister. The cause came on for trial at the Albany Circuit and Spe- cial Term, in December, 1870, neither party requiring a jury. The plaintiff's counsel opened by reading the pleadings. The defendant's counsel (other than for Julia C. Southwick, who did not appear in the case) thereupon moved to dismiss the complaint, upon the grounds, 1. That the court has no jurisdiction of the subject of the action. 2. That the complaint does not state facts sufficient to con- stitute a cause of action. Plaintiff's counsel claimed that, inasmuch as the defendants other than Julia C. had answered, setting up a claim of title, which plaintiff claimed was unfounded, an allegation in the complaint that the defendants unjustly claimed title to such premises was unnecessary to entitle plaintiff to maintain the action, even under the statutes. The court thought other- wise. The plaintiff's counsel thereupon asked the court that plaintiff be allowed to amend the complaint by inserting an allegation therein as follows: " That the defendants unjustly claim title to such premises ;" and also to amend the prayer 360 CASES IN THE SUPREME COURT [March, Bailey n. Southwick. for relief by inserting " that defendants, and all persons claiming under them, be forever barred from any claim of reversion, or freehold, or remainder of the premises described in the complaint." The court refused to allow such amendment, and plaintiff excepted. The plaintiff thereupon moved to make the same amend- ments as against the adult defendants. The court denied -the motion, and refused to allow such amendment, and plaintiff excepted. Plaintiff claimed to maintain the action, 1. Under the statutes. 2. As a bill to quiet title, in the nature of a bill quia timet. 3. As a bill to establish the will of Jesse Buel, so far as it relates to this real estate. 4. Upon the facts set out in the complaint, and that plain- tiff should have such relief as he may be entitled to upon such facts. Plaintiff offered to prove the facts alleged and set out in the complaint. The court ruled and decided that the action could not be maintained; to which plaintiff excepted. Counsel for said defendants pressed the motion to dismiss the complaint, upon the grounds before stated, and the court granted the motion, to which plaintiff excepted ; and he separately excepted to the dismissal of the complaint, as against the adult defendants. The other material facts will sufficiently appear in the opinion. N. C. Mbak, for the plaintiff. Burton N. Harrison, for the defendants. Present MILLER, P. J. ; P. POTTER and PARKER, JJ. P. POTTER, J. The complaint in this action, in substance, is to obtain legal and judicial determination and construction 1872.] OF THE STATE OF NEW YORK. 361 Bailey v. Southwick. of the last will of the late Jesse Buel, of Albany, as it affects certain real estate in said city. The testator devised to his two sons, Charles and William P., and to his daughter, Julia C., who is the defendant (Julia C. Southwick), each, certain real estate ; and to the latter, Julia C., the premises in ques- tion, as follows : " To my daughter, Julia C. Bnell, I give, devise and bequeath, subject to the condition and contingency hereafter mentioned, four lots on Washington street, in the city of Albany, being lots Nos. 1, 3, 5 and 7, together with all the buildings, tenements and hereditaments belonging and apper- taining to each and every of them. " All the said several gifts and devises before mentioned to my said children, Charles, Julia C. and William P., are made upon express condition, and subject to the condition next following, that is to say, that the gift or devise to each is made and given to each, and his, her or their direct lineal descendants, should he, she or they have any, in fee simple absolutely; but in the event that either the said Charles, Julia C. and William P. shall die leaving no children, or descendants of any children, then and in such case I hereby give, devise and bequeath the said several gifts, devises and bequests, which belonged to him, her or them, to the children of the survivors or survivor of them the said Charles, Julia C. and William P. equally, share and share alike ; the direct lineal descendants, if any, of such of my said three children, Charles, Julia C. and William P., as may then be deceased, to be entitled to the same share which the child or children so deceased would have been entitled to if living." The complaint alleges that in May, 1863, Julia C., the defendant, who had then been in possession more than one year, conveyed the premises to the plaintiff, with covenants of warranty and quiet possession, in fee, and for a good and valuable consideration ; and that the plaintiff is, and for three years before the commencement of the action had been, in the actual possession of the premises. All the defendants, other than the said Julia C., are her LANSLKG VOL. VL 46 362 Bailey v. Southwick. children. Susan B. Briggs is married ; she and Frank B. Southwick are of full age, and united in an answer merely denying that their mother, Julia C., held in fee simple abso- lute, but claiming that they, in common with their other brothers and sisters, held the said premises in fee absolute, subject to the life estate of their mother; and the infant defendants answered by their guardian, submitting their inte- rests to the court, but claiming such interests as the adults claim. The defendant, Julia C. Southwick, put in no answer. 1st. The plaintiff's action being dismissed, it lies with him to show a legal right to maintain it ; and this involves the necessity of showing whether it is an action in equity or at law. It cannot be both ; for though the Supreme Court pos- sesses all the powers, and exercises the functions both of the former Supreme Court and the former Court of Chancery, and may entertain an equitable defence to a legal action, it has not acquired the right, by blending the two tribunals, so as to administer a legal remedy in an action of purely equita- ble cognizance, nor equitable relief in an action of strictly legal cognizance. The administration of each tribunal is now, as it was before, as perfectly distinct as it was when remedies were to be sought in different courts. If the plaintiff's form of action is in equity, he must maintain it upon equitable grounds, or fail, even though he may prove a good action at law. (Mann v. Fairchild, 2 Keyes R., Ill, 112.) And if he proceed in equity he must also show that a perfect remedy cannot be obtained at law. (Hey wood v. The City of Buf- falo, 14: N". Y., 540, per JOHNSON, J. ; Onderdonk v. Mott, 34; Barb., 113, per EMOTT, J.) I have failed to discover any grounds of an equitable nature in the allegations of the complaint. The plaintiff is the assignee or granfee of a devisee in the will; and the com- plaint, so far as it calls for judicial construction of the Will, comes short of showing it to be a case within the limits of equity jurisdiction. He does not sue as a cestui que trust executor, administrator or trustee. The estate in question is a mere legal estate, easily determinable at law as to quantity 1872.] OF THE STATE OF NEW YORK. Bailey v. Southwick. and character. No possible question can arise in this case between the parties as to the validity of the bequests of the will of the testator. The rule laid down by the chancellor in Sowers v. Smith (10 Paige, 193) has never been overruled or shaken as authority, to my knowledge, but has been sus- tained by the case of Onderdonk v. Matt (supra, p. 111). The chancellor says: "I am not aware of any case in which the heir-at-law of a testator, or a devisee, who claims a mere legal estate in the real property where there was no trust, has been allowed to come into a court of equity for the mere purpose of obtaining judicial construction of the pro- visions of the will. On the contrary, the decision of such legal question, belongs exclusively to the courts of law, except where they arise incidentally (in this court) in the exercise of its legitimate powers ; or, where the court has obtained jurisdiction of the case for some other purpose." The devisee in the will has put in no answer. She has no estate to be affected in the case. What she had she has conveyed to the plaintiff. Three of the defendants are infants and incapable of admitting jurisdiction or of making unjust claim of title, and they can ask no partition or other relief on their behalf, nor could partition be granted them upon the com- plaint and answers when put in. Their estate, whatever it is, is entirely contingent, if they have any. The plaintiff's grantor, had she remained in quiet and peaceable possession of her estate, could not have brought this action. Her grantee has no better rights while he remains undisturbed. The complaint does, indeed, ask, as a part of the relief to be granted, to have the will established, but that was done by the decree of probate, long before ; no appeal has been shown to have been taken or is pending from that decree ; a judgment in this court can neither reverse that decree or better establish the will. It is further claimed by the plaintiff that the complaint can be sustained as a bill of peace or of quia timet. A bill of peace is most generally brought after suit instituted, and gene- rally to try a right that has been tried at law and seeks an 364 CASES IN THE SUPREME COURT [March, Bailey . Southwick. injunction, though there are a few cases where they may be brought before the party is actually prosecuted. The plain- tiff in this case has not been prosecuted. The cases where bills of peace can be maintained are principally limited to cases of injunctions to stay proceedings at law, to restrain vexatious suits, to restrain the alienation of property, to restrain waste, to restrain trespasses, and to prevent irrepar- able mischiefs. The object generally is to establish and per- petuate a right which the party claims, and which, from its nature, may be controverted by different persons at different times, and by different actions, or it may lie where separate attempts have been unsuccessfully made to overthrow the same right, and where justice requires that the party should be quieted in the right. Its obvious design is to procure repose from perpetual litigation, and it is therefore justly called a bill of peace. (Story's Eq. Jur., 852-873, 958.) The complaint in this action, I think, presents no case that is brought within the general objects of a bill of peace. Bills of quia timet are also known in the practice of equity as writs of prevention, and are used to accomplish the ends of precautionary justice. The name of this bill is taken from the expression of the party's fears in the application, lie fears some future probable injury to his rights or interests, and not because an injury has already occurred which requires relief. Its object is to secure the preservation of property to its appropriate uses where there is future or contingent danger of its being diminished or converted to other uses, or lost by gross neglect, without the interposition of the court. It gene- rally relates to personal property, and is applicable as against executors and administrators, trustees and corporations, where there is danger of devastation, waste or collusion, by which estates may be diminished, and where the appointment of a receiver is necessary. The case before us presents none of the elements which show the necessity of the bill of quia timet. The plaintiffs rights are strictly legal rights and well defined in law. Though subject, perhaps, to future contin- gencies, equity cannot change them. lie has, therefore, no 1872.] OF THE STATE OF NEW YORK. 365 Bailey n. Southwick. reasonable fear of any future probable injury to his rights and interests. His evidence of title is matter of record, and he is in no danger of losing it by any act of any adverse party. He can suffer nothing by delay in the prosecution of his claims, and he is now in the enjoyment of the quiet and peaceable possession of the estate. The defendants' possible or pro- bable remainder-men of the estate, as the plaintiff seems to suppose, have an equal right with the plaintiff to have their estates, if they have any, even though contingent, protected; and to demand the preventive interposition of the court against a premature disposition, or a change. of its legal per- manent character ; and equity has no right to interfere with it. The law of mutuality or reciprocal obligation is acknow- ledged in equity. It is even unjust and against the princi- ples of natural equity that a man, and especially that infants, should be compelled, against their will, to have a change made in the character of their estate, or to have its security disturbed, while they are remaining in quiet expectation. This -is not a case where the plaintiff unexpectedly and with- out his fault is placed in a condition that he could not know what in judgment of law it is his duty to do, and has, there- fore, a right to call the aid of the court to his relief. Were it so, that might be good cause to call the interposition of a court of equity. The plaintiff purchased a legal estate, and, in contemplation of law, it is to be presumed he knew then, as well as now, its character, extent and contingencies. His desire to improve this estate, however commendable, and how much soever it would tend to the public interest and conve- nience, cannot be considered by the court of equity. The plaintiff also claims that a bill in the nature of quia timet can be sustained. This is not a distinct, or an admitted, or very definite head of equity jurisdiction, nor is it easily distinguished by established rules from the others which we have examined. It is rather an invention of the court of equity, adopted for extreme cases, in the desire to commend their system, so that there shall always be a remedy for the enforcement of rights and redress of wrongs ; and to vary its 366 CASES IN THE SUPREME COURT [March, Bailey v. Southwick. adjustments and proportions, so as to meet the form and pressure of each particular case, that a bill in the nature of quia timet was invented and sustained. It is a remedy of so infrequent occurrence and mention in the books of practice that it is hardly safe to extend it or proper to give its appli- cation to a particular case upon any well settled authority. I am satisfied that such a bill does not apply to the case before us. If, then, this action can be maintained, it must be an action at law, and can only be maintained there by bringing it within the provisions of the act entitled " proceedings to compel the determination of claims to real property in certain cases." (2 R. S., 312, 313 ; Edm. ed., 321, 322, &c.) This is entirely a statutory proceeding, and is not governed by the principles of the common law. It is a proceeding not known to the common law. To give the court jurisdiction of the case, the proceeding must be brought within the statute direction, and come within the case for which the statute provides; and although the statute has been so amended as to permit the action to be prosecuted under the provisions of the Code, the special statute character of the action has not been changed. The decision of this case below was upon the pleadings without proof, and we may therefore regard the questions here that may be raised, upon review, to be substantially as if it was a demurrer, which is a test of the character and suffi- ciency of the pleadings. On the trial at the circuit it differs from a demurrer only in that perhaps the judge possessed the power of exercising a discretion as to amendments. (Ham- mond v. Tillotson, 18 Barb., 332 ; Onderdonk v. JNott, 34 Barb., 106.) If that be so, this court would not review that discretion. We must, therefore, look at the case to see if the complaint stated sufficient facts to give the court jurisdiction of the subject of the action, and whether the complaint did state facts sufficient to constitute a cause of action. Without enumerating all the provisions of this statute that are indispensable in order to give the court jurisdiction of the subject, and which of course must be stated in the complaint, 1872.] OF THE STATE OF NEW YORK. 367 Bailey v. Southwick. it will be sufficient to sustain the ruling below if matter mate- rial to be stated is found omitted, , and equally so if matters stated show that the case does not come within the provisions of the statute, for the statute applies only to "^certain cases." Assuming that the complaint in this case is made a substi- tute for or an equivalent of the notice required by the second section of this statute, the fourth subdivision of the second section requires that this notice shall state that the person to whom -it is directed unjustly claims title to such premises. The defendants can make no such claim during the life of Julia C. Southwick. No such allegation is found in the com- plaint. Had it been found there, other allegations in the complaint would, of themselves, have been the direct negative of a distinct fact therein alleged as to Julia C. Soutliwick, one of the defendants, to wit : That she had previously conveyed in fee, with covenants of warranty and quiet possession, to the plaintiff, all her interest in the premises. As to her, the plaintiff in his complaint subsequently by implication admits that she cannot disturb him. By the third section of this act infants are excluded from being made parties to the proceeding. By the complaint the plaintiff alleges that four of the defendants are infants under the age of twenty-one years. No amendment could have cured this defect. Besides, infants could not have been charged with unjustly claiming title. The dismissing of the complaint as to the infants and as to Julia C. Southwick are clearly and sufficiently sustained upon this ground. An adjudication upon the legal rights of one or more of the tenants in common or joint tenants of the contingent estate, if the complaint had been otherwise sufficient as to them or had been amendable as against them, would not have been wise, discreet or just, would not have aided the plaintiff in his designs of improvement, and would have opened a door for renewed litigation as the infants respectively arrived at age. Upon either view I think the ruling was right. If I am right 368 CASES IN THE SUPREME COURT [April, Collins v. Collins. in these views, it is unnecessary to examine various other technical grounds of objection made to the complaint. I think the judgment is right and should be affirmed with costs. Judgment affirmed. MAEIA A. COLLINS, Appellant, v. LORENZO D. COLLINS, Respondent. (GENERAL TERM, THIKD DEPARTMENT, APRIL, 1871.) Plaintiff, a married woman, was the owner of certain real estate, a large part of the purchase-money of which had been furnished by her hus- band, and he had also expended large sums for its improvement and repair. It was also heavily incumbered. The husband died, leaving plaintiff his widow, and children by a former marriage, and having upon his death-bed requested the defendant to take said property and do the best he could therewith for his wife and children, and requested him to tell plaintiff that he wished her to convey the property to defendant, that he might manage it for her benefit and that of his children. After the husband's death, defendant informed plaintiff of the request made by him, and defendant conveyed the property to plaintiff, the only con- sideration of the conveyance being her husband's request and the verbal and implied promise of defendant that he would conform with such request. After such conveyance, defendant expended large sums in dis- charging liens and incumbrances upon the* property, existing at the time of the conveyance, and in paying for repairs and improvements thereto, commenced in the husband's lifetime. Held, in an action brought to obtain a reconveyance of the property, that plaintiff was not entitled to such relief, and yet that a judgment rendered for the defendant was erroneous and must be reversed and a new trial ordered; that defendant was entitled to be reimbursed the amounts expended by him under the conveyance in good faith, in paying liens and incumbrances, and in making repairs, and to be subrogated to the rights of creditors of the husband, whose debts he had paid, and to a reasonable compensation for his services ; that he should also be held to account for the rents and profits received by him ; that the respective rights of the parties interested, including any question as to the widow's right of dower, should be ascertained upon the new trial and settled upon equi- table principles. Held, further, that the children of the intestate had interests in the estate, the rights to and the extent of which could only be determined by their being made parties to the action, and that they should therefore be brought into the action as such parties. 1871.] OF THE STATE OF NEW YORK. 369 Collins v. Collins. THIS case comes here on appeal by the plaintiff from a judg- ment against her, entered on a report of a referee. The action was brought to obtain a reconveyance of certain land, or payment therefor, which had been conveyed by plain- tiff to defendant. The facts are substantially as set forth in the report of the referee to whom the case was referred, and are as follows : That on and prior to the 16th day of April, 1866, the plaintiff was the owner of the real estate described in the complaint, called the Exchange Hotel or Collins House pro- perty, and also a large amount of personal property contained therein and connected and purchased therewith. That Isaac Collins, the husband of the plaintiff, had furnished a large part of the purchase-money of said real estate. That said Isaac Collins died on the 13th day of April, 1866. That upon his death-bed, said Isaac Collins requested the defend- ant to take charge of his business and of said property after his death, and do the best he could therewith for his wife and children, and requested the defendant to tell the plaintiff that lie, said Isaac, wished her to convey said real and personal property to the defendant, that he might manage the same, and do the best he could with it for her, said plaintiff, and the children of said Isaac Collins. That said property, both real and personal, was heavily incumbered at the time of the death of said Isaac, and large liabilities had been incurred for the improvement and repair of said real estate, and said real estate was at that time in the course of repair and was very much torn up and'out of order. That after the death of said Isaac Collins, and before the execution and delivery of the deed and bill of sale hereinafter mentioned, the defendant informed the plaintiff of the request of her husband above set forth, that she should convey said property to the defend- ant that he might manage the same and do the best he could therewith, for her "and for the children of her said liusband. That said Isaac Collins, at the time of his decease,, left him surviving four children by a former wife. That oa the 16th day of April, 1866, the plaintiff conveyed said real estaie to LANSING VOL. YT. 47 370 CASES IN THE SUPREME COURT [April, Collins v. Collins. the defendant by a deed of bargain and sale, and said personal property by a bill of sale. That said conveyances were made, executed and delivered by the plaintiff* in consideration of the aforesaid request of her said husband, and of the verbal and implied promise of the defendant, that he would do the best he could with said property for the plaintiff and the children of said Isaac Collins. That the defendant, at the time said conveyances were made, neither paid nor agreed to pay, nor did he give or agree to give, any other consideration therefor than as above expressed. That since said conveyances were made, the defendant had paid out and advanced large sums to discharge liens and incumbrances on said personal property, existing at the time of said conveyance, and to pay for repairs and improvements upon said real estate, commenced prior to the decease of said Isaac Collins. That the plaintiff, at the time she executed and delivered said deed and bill of sale, knew the contents, purpose and effect thereof. And as conclusion of law, I find that the plaintiff is not entitled to relief in this action, and that the defendant is enti- tled to judgment against the plaintiff for costs. Exceptions were taken by the plaintiff to the findings of fact and conclusion of law. Judgment was entered upon this report, and the plaintiff has appealed to this court. A. J. Colvin, for the appellant. N. C. Modk, for the respondent. Present MILLER, P. J. ; P. POTTER and PARKER, JJ. r. , V ...',,- ^ .*:..- By the Court P. POTTEK, J. I think that, in equity, the plaintiff is not entitled to all the relief she demands, but am inclined to think that a denial of all relief, and a judgment so declaring it, might operate as a bar to any future claim on her part, and that, for this reason, the legal conclusion of the referee is based on error. 1871.] OF THE STATE OF NEW YORK. 371 Collins v. Collins. Whatever may be the character of the two deeds in ques- tion, to wit, the deed of Powell and wife to the plaintiff, and the deed of the plaintiff to the defendant, the considerations specified therein are subject to be inquired into, and this may be done by parol evidence. The referee was, therefore, right in admitting such evi- dence on the trial, (Swinburne v. Swinburne, 28 N. Y., 568, 573 ; Chester v. Bank of Kingston, 16 N. Y., 336 ; Boyd v. McLean, I John. Ch., 562 ; fieed v. Fitch, 11 Barb., 399 ; Loundsbury v. Purdy, 16 Barb., 376.) To determine the object and character of the conveyances, the whole extrinsic circumstances may be given in evidence, when one of the parties in interest is dead or cannot testify. Among the leading features of this case, is the fact that Isaac Collins, now deceased, had furnished a large portion of the purchase-money of the property in question, but had the title thereto taken in the name of his wife, now the plaintiff; that the property was heavily incumbered, and, besides, he had incurred large liabilities in improving the same property. Notwithstanding the title was in the name of his wife, he had equities in the estate growing out of his improvements thereon, which his creditors could have reached. His personal estate was also largely incumbered. Desiring to save the property, as well as to save costs and expenses in winding up his estate, upon his dying bed he requested that his wife convey this estate to his brother, the defendant, to take charge of and do the best he could with it for his wife and children. The plain- tiff, his widow, in pursuance of this request, and it must be presumed to that end, did so convey. I do not think the court are called upon to declare by what technical name to characterize this conveyance; whether an absolute convey- ance in trust, or in the nature of a mortgage. The object and intent of the parties is clear, and that intent, in equity, should be carried out. The intestate had creditors whom he wished should be paid. To pay them, among other things, he requested the conveyance to be made ; to this intent, it must be presumed, among other things, it was made, and for this 372 CASES IN THE SUPREME COURT [April, Collins v. Collins. purpose the conveyance was received by the defendant. To the extent that the defendant has carried out this design he has a right to be protected ; he has a right to be subrogated to the place of those creditors whose debts he has paid. This is a principle of equity too clear to be controverted. The defendant only claims to hold the property to carry out the expressed will, or wishes, more properly, of the intestate ; and the conveyance by the plaintiff to him, it must be presumed, was made to carry out that will or wish of the intestate ; and the plaintiff is estopped, upon the facts found, from denying that she conveyed it for that purpose, or those purposes. And to the extent that the defendant has paid and discharged the claims for repairs and improvements made by the intes- tate out of the personal property of the intestate, he is also subrogated to the equitable rights that the intestate had in the property that could have been reached by creditors. This is an equally clear principle of equity. There is, really, but one other question that needs discussion, and this is surrounded by some complications, which do not appear in the report of the referee. The plaintiff claims, first, an' absolute reconveyance of the estate. This she is not enti- tled to ; it is unjust to claim it. Second. She claims a recon- veyance of the whole estate, subject to the liens and incum- brances paid by the defendant. Nor is she entitled to this. Her husband had an interest in the estate conveyed ; this interest he desired should be conveyed for the benefit of the plaintiff and his children by a former wife. It was so con- veyed by her. In this conveyance, in equity, she recognized her husband's interest, and conveyed it for the benefit of her- self and her husband's children / equitably as much for them as for herself. She can neither repudiate this conveyance nor deny its object, and she cannot demand a reconveyance to herself of that which was conveyed for the benefit of these children. That the indefiniteness of the respective claims of the plaintiff and children will create some complications, is probable. This will require a trial, and it must be set- tled upon proper principles of equity. It is in proof that 1871.] OF THE STATE OF NEW YORK. 373 Van Leuvan v. The First National Bank of Kingston. some of her own separate estate is involved. This can be ascertained upon a trial, and allowed her. Perhaps, over and above ineumbrances, she may also be entitled to dower. This can also be determined. But in the view we have taken of this case, the children of the intestate have also interests in this estate, the rights to which and the extent of which can only be determined by bringing them into the case as parties. This, I think, was the error of the referee in dismissing the bill. The case should have stood open to have allowed the children to be brought in. So, too, the defendant, it appears, has received rents and profits of the estate, which, it is charged, has greatly increased in value, and in its rental or income. He ought to have accounted ; and he is entitled to a reasonable consideration for the management of the estate. All these things can be established on another trial. I think the report should be set aside. Judgment reversed and new trial granted, costs to abide the event. CORNELIUS VAN LEUVAN, Respondent, v. THE FIRST NATIONAL BANK OF KINGSTON, Appellant. (GENERAL TEEM, THIRD DEPARTMENT, FEBRUARY, 1871.) The defendant, a national bank, incorporated under act of congress of June 3d, 1864, advertised itself, by notices placed in its banking room and windows and in other ways, as a United States depositary, and financial agent of the government, for the exchange of seven-thirty gov- ernment notes into five-twenty bonds, and were such agents and engaged in such business. Plaintiff, a stockholder of the bank, placed in the hands of its president at the bank, in banking hours, a number of these notes to be exchanged, and received from him a receipt therefor signed by him individually, and which had a printed caption containing the defendant's name, and the name of the cashier and president, and a statement that defendant was such depositary and agent The notes were sent to brokers in New York with a letter signed (officially) 374 CASES IN THE SUPREME COURT [Feb., Van Lenvan v. The First National Bank of Kingston. by the cashier, who had also been present at the time the bonds were received, upon which was a copy of the above mentioned printed caption of the bank, directing the brokers to sell the notes and credit the proceeds to the bank, which they did. The proceeds of the notes were credited to the president individually upon the books of the bank. The president's account was overdrawn at the time of the credit for more than the amount. Held, that the transaction of the plaintiff was with the bank and not with the president individually, and that plaintiff could recover the amount of the proceeds of the bonds from the bank, after demand upon it and its refusal to pay the same. Held, also, that the entries made by the agents of the bank, crediting the proceeds of the notes to the president, could not prejudice the rights of the plaintiff or affect his recovery. It seems that, even assuming that the intention of the plaintiff and defend- ant's president was that the transaction was to be an individual one, and not with the bank, and that the notes were sold by the president to the bank, the bank would still be liable to plaintiff for the proceeds of the notes, the knowledge of its president and cashier being in law its know- ledge of the agreement made, and that it had not been performed, and it not being therefore a bonafde holder of the notes, nor of their pror ceeds. THIS is an appeal from a judgment rendered in favor of the plaintiff for the sum of twelve thousand nine hundred and fifty-six dollars and ninety-eight cents upon a verdict of the Ulster Circuit, directed by the court. The action was for the avails of $10,000 seven-thirty treasury notes claimed to have been converted by the defendants to their own use. It appeared from the evidence that the defendant, a national bank in the village of Kingston, in 1867, advertised itself as the United States depositary and financial agent of the government, and had this heading to their letters, and painted on the bank building, and were designated to exchange seven-thirty notes for five-twenty bonds. The defendants were engaged as such, in making such exchanges. Jonathan H. Hasbrouck was the president of the defendant's bank, and its principal manager. The bank had advertised their agency to make exchanges, and had cards hanging up in the banking room, and at the windows, giving notice of such agency. The plaintiff was a stockholder of the bank, 1871.] OF THE STATE OF NEW YORK. 375 Van Leuvan v. The First National Bank of Kingston. and kept in the vault of the bank a tin trunk which contained his securities, etc. On the llth July, 1867, the plaintiff went to the bank in order to exchange some seven-thirty government notes for five-twenty bonds of the government, and had a conversation with Mr. Hasbrouck on the subject. The interview, according to the plaintiff's statement, was as follows : " When I wanted the bonds exchanged I wanted to know what he charged to do these things, and he told me, inas- much as I was doing all my business there, he would not charge anything; he didn't charge anything to those who did business at the bank, but there was some that he did charge, but he didn't charge customers in the bank like me." This statement was not contradicted. Hasbrouck was not sworn. One of the clerks in the bank went to the vault of the bank and brought the plaintiff's tin trunk, which was opened in the banking room in the presence of the officers and clerks of the bank ; $10,000 of the seven-thirty notes were taken out, handed to Mr. Hasbrouck, the president, the tin box again locked, taken back to the vault by a clerk, and the president then gave the plaintiff a receipt in the follow- ing words : " FIRST NATIONAL BANK OF KINGSTON. " United /States Depositary and financial Agent of Govern- ment. "JONATHAN H. HASBROUCK, Preset. ALFRED OSTERHOUT, Cashier. "KINGSTON, N. Y., July 11, 1869. " This is to certify, that I have received from C. M. Yan Leuvan, U. S. seven-thirty notes $10,000, which I am to exchange for same amount of U. S. five-twenty bonds, and deliver to him. "J. H. HASBROUCK." On the same day, the defendant, through its cashier, sent these same seven- thirties of the plaintiff to Fisk & Hatch, government brokers in New York, preceded by the following letter : 376 CASES IN THE SUPREME COURT [Feb., Van Leuvan v. The First National Bank of Kingston. " U. S. Depositary and Financial Agent of the Government, " JONATHAN H. HASBROTJCK, President. ALFRED OSTERHOTJT, Cashier. "KINGSTON, N. Y., July llth, 1867. " Messrs. FISK & HATCH : " GENTLEMEN. I will send you by express to-morrow, July 12th, seven-thirty, 3d series, $10,000, which you will sell, and place the proceeds to our credit. Respectfully, "A. OSTERHOUT, Cashier." Fisk & Hatch received the seven-thirties from the defendant, sold them, and remitted the avails, $11,120.50, to the defend- ant. Fisk & Hatch had a private account with Hasbrouck, and another account with the defendant. It was upon the latter the credit was made. On the 31st of July, 1867, Fisk & Hatch, after selling the bonds, wrote to the defendant as fol- lows : " A. OSTERHOUT, Cashier, Kingston, N. Y. " DEAR SIK. "We have received your favor of the llth and 12th instant, and credited your account for the seven- thirties bought of you as per statement, $11,119.38. Account not yet at hand. Yery truly, "FISK & HATCH. There was some evidence given in the case showing that the plaintiff, on former occasions, from 1864 to 1867, had negotiated with Hasbrouck for the purchase, sale or exchange of bonds. Some of these transactions were before Hasbrouck was president of the defendant's bank. A few days after the transaction for which this action is brought Hasbrouck failed, largely indebted to the defendant's bank. The plaintiff demanded the avails of his bonds, which was refused by the bank on the ground that the transaction was between the plaintiff and Hasbrouck individually. At the close of the evidence the defendant's counsel moved for a nonsuit on the following grounds : 1st. That by the written contract, executed by Hasbrouck when these bonds or notes were taken for exchange, he made 1871.] OF THE STATE OF NEW YORK. 377 Van Leuvan v. The First National Bank of Kingston. himself individually and personally liable, and not the bank. 2d. This transaction was not the legitimate and ordinary banking business, for which the bank could be made liable by the act of its president, and because this is especially applica- ble to the case of Yan Leuvan, who was a stockholder in the bank. 3d. That even though it were possible for Hasbrouck to bind the bank by a transaction like this, it could only be in a case where either express authority was conferred upon him by the bank to bind it, or, secondly, where the bank had apparently clothed him with power to do such an act. This motion was denied by the court. The defendant's counsel asked to go to the jury upon the question whether the plaintiff dealt with the bank or with Mr. Hasbrouck. The plaintiff was willing to go to the jury to remove that question from the case. After some discus- sion between the defendant's counsel and the court, whether there was any question for the jury, the court directed a ver- dict in favor of the plaintiff for $12,299.51, the amount of the proceeds of the bonds and interest. The defendant's counsel excepted. S. Hand and J. Hardenburgh, for the plaintiff. T. R. and F. L. Wesibrook, for the defendant. Present MILLER, P. J. ; P. POTTER and PARKER, JJ. By the Court P. POTTER, P. J. The defendant's bank, if organized under the act of congress of June 3, 1864, as I think it was, was authorized to negotiate, buy and sell, or exchange, as a corporation, the kind of property which is the subject of this action. The president of the bank, as an individual, was not prohibited from doing the same act. The defendants advertised themselves as agents of the government to perform that kind of agency, by posting up conspicuous notices upon LANSING VOL. VI. 48 378 CASES IN THE SUPREME COURT [Feb., Van Leuvan v. The First National Bank of Kingston. cards in their banking room, and exhibited such notice to the public from their windows. This apparent authority to third persons was the real authority. They could perform this agency for their bank, only through the ordinary methods of performing corporate duties, viz., by their execiitive offi- cers. If the bank performed this duty in the case before us, the president and cashier would be naturally, and were the ordinarily legitimate ageiits to perform that duty ; and the indicia of their official or executive action w r ould accompany the evidences given or received. In that respect, the receipt given in this case is peculiar. It presents upon its face an official caption showing corporate agency, with the names of the executive agents of the corporation. None of these indicia belong to individual transactions. Then follows the body of a receipt, signed, it is true, by but one person, and in the language of the first person singular; but that person is the same whose official character stands above, upon the same instrument, as the corporate agent. Possessing such a form, with no extrinsic evidence to change its character, it is an instrument, pritna facie, at least, of a corporate act. There was, then, not only this holding out to the plaintiff of a nego- tiation with him by the bank, but the bank itself treated the transaction as its own, with itself and with others. Its cash- ier, in whose presence the transaction was had, on the same day, by a communication headed by the same corporate agency caption, with the names of the same executive officers of the corporate agency, communicated with a noted banking house in New York the intent of the defendants to forward the notes in question for sale for the defendants, with direc- tions to place the proceeds, when sold, to the credit of the defendants ; and signing the notice and direction as cashier of the defendants. These instructions were obeyed by the New York house, and the proceeds were credited to the defendants. Up to this point, as a question of fact, this was no individual transaction ; and no judge, upon this presenta- tion, would have been justified to have submitted it to a jury to find whether this was an individual transaction. These seven. 1871.] OF THE STATE OF NEW YORK. 379 Van Leuvan v. The First National Bank of Kingston. thirty notes were taken by the defendants from the plaintiff to be exchanged for him. They did not perform their agree- ment. They were liable to the plaintiff for the avails, or the value, these avails which they had put to their own credit. They belonged to the plaintiff. If the exchange to be made may be presumed to have been intended by the parties to include the right to sell the one and purchase the other, they were then the plaintiff' 's brokers, and had failed to perform their whole duty to him. The money in their hands was the plaintiff's money, and, upon demand, he was entitled to receive it. It was money received by them to his use. 1 have, thus far, treated this case as if the transaction was between the plaintiff and the defendant, to see whether the ruling of the judge could be sustained in directing the jury to find a verdict for the plaintiff, and that there was no question of fact for the jury. If this theory of the judge was right, the judgment is right ; and we have said that upon the face of the papers this theory was right. But suppose it was the intention of Hasbrouck, the defend- ant's president, to make it his individual transaction ; some evidence was offered tending to prove this ; it must be that the plaintiff also so understood it, or it did not then amount to a contract ; but assume this also, how do the defendants then get title to this money ? The law will presume that a con- tract made in the bank, in banking hours, by its officers, carries knowledge to the, bank itself of the character of the contract. If that contract was with Hasbrouck individually to exchange these notes, the bank then knew these notes had not been so exchanged ; if it was to sell them and purchase five-twenty bonds, the bank knew this contract had not been performed. They were not holders of this money in good faith ; the bank itself, even upon that theory, had sold these bonds ; they had paid no consideration fur them ; they were neither bona fide holders of the bonds from Hasbrouck, nor of the proceeds of them. The knowledge of Hasbrouck, the president, and of Osterhout, the cashier, of the manner that these bonds had been obtained, was knowledge to the bank. If, then, this was 380 CASES IN THE SUPREME COURT [Feb., Van Leuvan v. The First National Bank of Kingston. an individual transaction of Hasbrouck, it did not change the question as to his knowledge of the transaction ; still, as pre- sident of the bank, he knew the property was the plaintiff's property ; neither he nor the cashier, nor both together, could by any entries in the books of the defendant, of credit to themselves, or credits to Hasbrouck, without plaintiff's con- sent, change the title to this property from the plaintiff to themselves or to Hasbrouck. There is no evidence that Hasbrouck bought them, and the receipt he gave nega- tives this idea. What, then, is the error of the court in refusing to submit this immaterial question to the jury ? But it seems to be the theory of the defendant that these notes were purchased by Hasbrouck of the plaintiff, and that the bank purchased them of Hasbrouck on the same day, and the books of the bank, to show such to be the trans- action, was given in evidence by them under plaintiff 's objec- tion. The bank book did show that Hasbrouck was credited on that day with $10,000, and when returns came from the sale in New York he was credited with $1,119.38 more, the amount of the premium, but no such agreement is proved. It can hardly be admitted as a sound legal proposition, that such entries by the bank officers, or by their clerks, unknown to the plaintiff, can be binding upon him or affect his legal rights ; that was not the plaintiff's contract ; the defendant could not make one for him ; his contract was in writing ; prima facia the writing is the true legal contract. Until that agreement is proved to be different, crediting Has- brouck with $10,000, which the bank knew did not belong to him, was a fraud, and permitting Hasbrouck to draw it out, if he did so, was a fraud. Whether done by an innocent clerk or otherwise, the bank knew it was a fraud. I mean, that is the legal presumption, because the law casts the know- ledge of the mala fides on them. If, instead of drawing it out afterward, Hasbrouck's account was overdrawn at the time, and this added so much to the defendant's security against Hasbrouck by making his account so much better, and themselves so much richer, the fraud is no less. So that 1871.] OF THE STATE OF NEW YORK. 881 Hackford v. The New York Central Railroad Co. in this view, it seems to me to be immaterial whether the transaction between the plaintiff and Hasbrouck was with the latter as an individual or as the representative of the bank ; the bank cannot be a bonafide holder of this money. By the testimony of the cashier, it had been drawn out before it waa credited to Hasbrouck ; so the bank gave no consideration for it. If this view of the case is correct, there was no mate- rial question of fact to be submitted to the jury. The legal propositions, so ably argued by the defendant's counsel, have not, in my opinion, a basis of fact upon which they can be applied. They are sound enough upon the aesumed case, but do not require discussion in the case before us. I think the judgment should be affirmed. Judgment affirmed. PHILIP KACKFORD, Administrator, &c., v. THE KEW YORK CENTRAL RAILROAD COMPANY. (GENERAL TERM, FOURTH DEPARTMENT, DECEMBER, 1871.) The plaintiff's intestate, while driving rapidly over the defendant's street- crossing hi a heavy storui of snow and wind, was struck by its train of cars and instantly killed. The crossing was at an elevation above, and visible for half a mile along, the street, and near it approaching trains could be seen at the distance of 1,400 feet. Notice of the crossing had been removed, and the train approached at a speed of twenty miles per hour without signal, by bell or whistle. The deceased had occasionally driven over the crossing ; and a teamster, whom he passed just before reaching it, and who saw the train, called to him to stop, and the call was heard by one seven or eight rods from the crossing. Another standing on the street ten rods from the track noticed the train when some six rods from the cross- ing, but a cart had just passed over and the driver neither saw nor heard it before crossing, nor on account of the storm could he see beyond his horses' heads without a sharp look-out. Held, in an action by the administrator to recover against the company, that the question of con- tributory negligence should have been submitted to the jury, and a non suit was error. In an action to recover on the ground of the defendant's negligence, the plaintiff need not allege or make proof that he is free from concurrent negligence. 382 CASES IN THE SUPREME COURT [Dec., Hackford t>. The New York Central Railroad Co. But, it seems, if on the trial there is evidence of plaintiff's negligence, from his own or defendant's witnesses, he must disprove it to entitle himself to a recovery. MOTION by the plaintiff, upon a case and exceptions, for a new trial, ordered to be heard in the first instance at General Term. The facts are stated in the opinion. Present MULLIN, P. J. ; JOHNSON and TALCOTT, JJ. MULLIN, P. J. The plaintiff, as administrator, brought this action to recover damages for the killing of William Hackford, at Geddes, in the county of Onondaga, in Decem- ber, 1869, by reason of the negligence of the employes of the defendant. The deceased was driving his team from the city of Syracuse to his residence, some fifteen miles from that city. It was a very stormy day. Snow was falling, and the wind blowing very hard. The street along which the deceased was driving runs east and west at the railroad crossing where the accident occurred, and it crosses the track at nearly right angles. The deceased was going west. The engine by which he was struck was moving south, at a speed of about twenty miles per hour. There was no sign up, indicating that there was a railroad crossing at the place of the accident ; the sign, that had been up having been removed. A carman, with furniture in his cart, crossed the track just before the deceased attempted to cross. There was one other team approaching the track from the east. The driver of the other team stop- ped, seeing the approaching engine, and cried whoa to the deceased just before he got on to the track. The deceased did not regard it, but drove on and was instantly struck and killed. On the trial the plaintiff's witnesses testified to the fore- going facts, and also that, as the engine approached the track, the bell was not rung, nor was the whistle blown. These omissions of duty, together with the rate of speed, and absence of a sign indicating the crossing, constituted the negligence on the part of the defendant. 1871.] OF THE STATE OF NEW YORK. 383 Hackford v. The New York Central Railroad Co. The defence set up in the answer were, first, a general denial ; and, second, concurring negligence on the part of the intestate. The evidence of negligence on the part of the defendant was, 1st. That the railroad track could be seen by a person going from Syracuse toward the crossing for a distance of some half a mile except where houses intervened. The track was higher than the land on either side, and higher than the street. Near the crossing a train could be seen for a distance of 1,400 feet in one direction, and the eighth of a mile in the other. Henry C. Allen testified that he had in Geddes a house on the north side of Genesee street, some six to ten rods from the crossing. He was in the street at the time of the accident, and saw the train approaching when it was within five or six rods of the crossing. Michael Ready testified that he lived in Geddes, on the north- west side of Genesee street and east of the railroad. At the time of the accident he was standing seven or eight rods from the crossing ; heard a man shouting " whoa ;" looked up and saw the train passing, and just about same time saw the smoke-stack of the engine ; and then the col- lision occurred almost instantly, not half a second after he heard the cry " whoa." The intestate, with his team, passed along pretty swift. When he first saw the intestate he was within a rod of the track ; and when he saw the engine the intestate was going right on to the track. McDonald was the person driving the team approaching the track. Deceased passed McDonald pretty fast, when the latter cried " whoa ;" he was turned out so that the deceased might pass him. Justin M. Woodford testified that the storm was very severe ; so severe that you could not see many rods. It was also proved that the deceased traveled occasionally to and from Syracuse on Genesee street. Henry D. Gregory was the carman who crossed the track ahead of deceased ; and he testified that before he crossed he 884 CASES IN THE SUPREME COURT [Doc., Hackford v. The New York Central Railroad Co. did not see or hear the cars. He could not see, by reason of the storm, any further than the horses' heads ; not unless he looked pretty sharp. Upon this evidence the plaintiff was nonsuited, on the ground that the deceased was himself guilty of negligence. The plaintiff's counsel asked the court to submit the ques- tion of concurring negligence to the jury. The request was refused, on the ground that there was not sufficient evidence to go to the jury ; and to this ruling the plaintiff's counsel excepted, as he did to the granting of the nonsuit. The court committed a grave error in refusing to submit the question of the concurring negligence of the deceased to the jury. Had the day been a fair one, so that there was nothing to prevent from seeing and hearing an approaching train, I should be of opinion that the deceased would have been chargeable with the grossest negligence. The day was a very stormy one. The wind was high, and snow falling in large quantities, and, of course, it was carried by the wind against the faces of those traveling against the wind. From what point of the compass the wind was blow- ing on the day of the accident does not appear in the case; but it does appear that the man who crossed the track just ahead of the deceased could not see further than his horse's head unless he looked pretty sharp. There is no evidence that a person approaching the track could see an approaching train at a greater distance than six rods from the crossing. If the train was moving twenty miles per hour, it would move the distance of six rods in a little over a second. If, then, we could assume that the deceased saw the engine six rods before it reached the crossing, he had no time to save himself ; he must have been on the track and escape impos- sible. If we assume that he did not look for an approaching train, and it would, under ordinary circumstances, be negli- gence not to look, yet when it is demonstrated that if he had looked he could not have escaped injury or death, surely his 1871.] . OF THE STATE OF NEW YORK. 385 Hackford v. The New York Central Railroad Co. right to recover of the party whose negligence caused the injury would not be denied him. Again, it was shown that the man who crossed ahead of him did not hear the approaching train, and, by reason of neither hearing nor seeing it, almost lost his life ; must we not assume that the deceased did not hear it, and, therefore, his senses failed to apprise him of his danger ? Is it probable that two men rushed recklessly into the jaws of death, having know- ledge that death was imminent ? If we are to indulge in pre- sumption, is it not the natural one that men use their senses for their protection, when they have reason to suppose that danger is impending ? If, upon the evidence given by the plaintiff, the jury could reasonably find that by reason of the storm the deceased could not, in the absence of the ringing of the bell or blowing the whistle, ascertain the approach of a train in time to escape a collision with it would not a verdict for the plaintiff have been sustained ? That such a state of facts might have been found upon the evidence I entertain no doubt. It was, therefore, the duty of the court to submit the ques- tion to the jury as to the concurring negligence of the deceased, and, because the request to submit it was refused, a new trial must be granted. The learned judge said, in granting the nonsuit, that the plaintiff had the affirmative of showing that he was free from any negligence that contributed to the production of the injury. This remark cannot be the ground for grant- ing a new trial, if it is erroneous; but it may be taken into consideration in determining the weight the court gave to the evidence of the concurring negligence of the deceased, when it refused to submit the question to the jury. If the learned judge intended to hold that a plaintiff is bound to allege, in a complaint in an action for damages resulting from an injury caused by the negligence of the defendant, and to prove affirmatively on the trial he (the plaintiff) was not guilty of any negligence that contributed to the injury, he was mistaken. The concurring negligence of the plaintiff is LANSING VOL. VI. 49 38G CASES IN THE SUPREME COURT [Dec., Hackford v. The New York Central Railroad Co. matter of defence, and the plaintiff is under no obligation to prove anything, to entitle him to recover, but the injury, and that it was caused by defendant's negligence. No precedent of a common-law declaration in case for neg- ligence can be found, I think, in which the plaintiff asserts that he was free from negligence, nor any decision that he is bound to make such proof. (See Precedents of Declarations in Case for Negligence, 3 Chitty's Pleadings.) But when, on the trial, there is evidence of negligence on the part of the plaintiff, whether it comes from the plaintiff's or defendant's witnesses, the plaintiff must overcome it, in order to entitle him Self to recover. In this way, and in this way only, is the plaintiff bound to disprove his own negligence. To meet the views of the court, that plaintiff had the bur- de,n of proving the absence of negligence affirmatively, a higher degree of proof was demanded than he was bound to make, and thus wrong w r as done to the plaintiff. If, how- ever, the court merely meant to say the plaintiff 's own evi- dence shows his negligence, and that it concurred to produce the injury, he must, therefore, give evidence to rebut the inference of negligence resulting from the evidence he had himself given, he was, doubtless, correct. If the plaintiff's witnesses proved defendant's defence, it was as available as if proved by itself. This construction of the charge would hardly be consistent with the proposition that the plaintiff' held the affirmative of disproving negligence. If he had, it must follow that the law presumed negligence against him. On the contrary, negligence is never presumed, but must be affirmatively proved. There must be a new trial, with costs to abide the event. New trial granted. 1872.] OF THE STATE OF NEW YORK. Shepherd c. Hill. CHARLES N". SHEPHERD, Appellant, v. WILLIAM D. HILL and MARY J. HILL, his wife, Respondents. (GENERAL TERM, THIRD DEPARTMENT, SEPTEMBER, 1872.) In an action in the nature of a creditor's bill to reach property in the hands of a third person alleged to be held for the debtor's benefit, the decision of a referee upon appeal on the exceptions to findings of fact is to be considered at General Term in view of all the evidence, and to be reversed or affirmed according to the conclusion of fact which shall be arrived at by the court A debtor made a general assignment of his goods (in 1801), some of them purchased on credit from the plaintifll The assignee sold the assigned property in bulk to a third person, a farmer, for whom the debtor then claimed to act as agent in the management of a miscellaneous business, but of such a character and under such circumstances as led to a conclu- sion that the agency was fraudulent and the business his own. During the alleged agency real estate was conveyed to his wife, and he made a deposit to her credit, and continued to make like deposits after he claimed to have terminated his first agency, when he assumed to act as agent for his wife, who had no property except such as came to her from her hus- band after he had incurred the debt In a creditor's action to reach the interest standing in the wife's name in the real estate, the court reviewed the question of fraud upon the evidence and reversed the decision of the referee, which was for the defendant, and ordered a new trial. . THIS action is what is called a creditor's bill, brought to reach property of the defendant, William D. Hill, some of which, it is claimed, is covered by a claim of the defendant, Mary J. Hill, in fraud of the creditors of the said William D. ; and to set aside a conveyance of real estate held in the name of the said Mary, the wife of the said William, also charged to be in fraud of the rights of the creditors of the said William, and for other relief. The action was referred to a sole referee, who reported the issue of fact and law in favor of the defend- ants. From the judgment entered upon the report of the referee the plaintiff appeals to this court. S. W. Judson, for the plaintiff. Cooke & Loundsbery, for the defendants. Present P. POTTER, P. J., PARKER and DANIELS, JJ. 388 CASES IN THE SUPREME COURT [Sept., Shepherd t>. Hill. P. POTTER, P. J. If the facts are correctly found in this case by the referee, his conclusions of law are right. It seems, how- ever, to be the settled law in such a case as this, that it is the duty of this court to determine whether the facts controverted on the trial are correctly found by an examination, by the court, of all the evidence (Burgess v. Simonson, 45 N. Y., 228), and in cases of fraud to examine all the evidence in the case, and to reverse or affirm the judgment, according to the conclusion of fact which shall be arrived at upon the question of fraud. (Per COMSTOCK, J., in Griffin v. Jfar- quardt) 17 N. Y., 30.) And this duty is also enforced by the provisions of the Code ( 268, 272). In a case like that at bar, which is exceedingly voluminous, and having the principal issue in it a question of fraud, the duty is somewhat onerous. In all such cases, where the appeal is based upon the ground that the findings of fact are contrary to evidence, it is not possible to determine it by any well defined rules of law, but the decision must depend in a great degree upon the peculiar circumstances of each case. (Barrett v. Third Ave. jR. R. Co., 45 K Y., 632.) There are certain leading facts in this case that may be first stated, which are not controverted, and which, being so stated, will enable us the more readily to apply the other evidence, upon which the report of the referee is based, and to draw our own legitimate conclusions. The defendant, William D. Hill, had purchased goods of the plaintiff upon credit in his own name, in June, 1861. On the 26th August, 1861, two months thereafter, said Hill made a general assignment of all his property for the benefit of his creditors, giving preferences. The plaintiff was not preferred as to his debt. The assignee, Slight, sold the assigned property, including a lease of the store (of the value of $1,200) in a lump to one John McMullen, then a stranger to the assignee. The negotiations and arrangement for this McMullen to purchase were made entirely by the defendant, "William D. Hill. McMullen was a farmer, living about forty miles from Kingston, the place where the store and tho 1872.] OF THE STATE OF NEW YORK. 389 Shepherd t>. Hill. assigned property was kept, and was not called as a witness by defendants. Upon the purchase by McMullen, or in his name, the defendant William D. Hill took possession again of the store and property, including the assigned accounts, and continued business as before, but claiming to be the agent' of McMul- len, and opened an account with the Ulster County Bank in the name of " W. D. Hill, agent," and continued it from Octo- ber, 1861, to 31st May, 1867. During all that period, and even down to the day of the trial, W. D. Hill never had any settlement or accounting with McMullen, as to his agency or otherwise ; and there never was any arrangement or agreement between him and McMul- len as to any terms or conditions of his agency which appear in the case, or as to his powers as such agent, except that he was to have fifty dollars per month. During that time, Hill bought and sold notes, bonds and mortgages, county bonds, sheep-skins, butter, apples, beeswax, mules and horses, and he has no regular account of that business for McMullen. During the same time, Hill acted as agent for one Ho well, also for a Mr. Brush and for Mr. Grant ; and for certain other parties he went to the oil regions. He also acted as agent of an insurance company. His business for Howell was to the extent of $100,000, working over a year, at a salary of $100 a month. The business he says he did for McMullen amounted to $50,000; for Brush, $12,000 to $15,000. His drafts on Howell during that time, were passed to the credit . Miller. $10,000. For value received, I hereby transfer, assign and set over to Isaac Miller the within described amount, say ten thou- sand dollars. LEYI MOORE. ALBANY, Oct. 31, 1868. Afterward, and on the 23d November, 1868, the said Mil- ler transferred the said certificate to the defendant, " The Metropolitan National Bank," by a transfer in the following form: For value received, I hereby transfer, assign and set over to The Metropolitan Nat. Bank, N. Y., the within described amount, say ten thousand dollars. ISAAC MILLER. NEW YORK, Nov. 23, 1868. $149 59 10,000 00 $10,149 59 NEW YORK, Not). 23, 1868. After issue joined, and before the trial, at a Special Term of the Supreme Court, the following issues of fact were set- tled, to be tried by the jury : 1st. Did the defendant Miller obtain the possession of the certificate mentioned in the complaint by false pretence, as charged in the amended complaint ? 2d. Did the plaintiff deliver possession of said certificate under an agreement that, in case said certificate was not cashed within three weeks, the defendant Miller should return the same, and the assignment thereof, to the plaintiff, and take up the check and notes as charged in the amended complaint ? 3d. Did the title to the certificate remain in the plaintiff after the possession thereof was delivered to the defendant Miller, by the agreement or understanding of the parties ? 1872.] OF THE STATE OF NEW YORK. 399 Moore v. Miller. 4th. Was the said certificate absolutely and unconditionally assigned by plaintiff to defendant Miller, with intent that the title thereto should be vested in said Miller ? 5th. Was the certificate transferred to The Metropolitan National Bank more than three weeks after the possession thereof was obtained by the defendant Miller ? 6th. Did The Metropolitan National Bank, the defendant, become the purchaser of said certificate in good faith, and without notice, as claimed in the answer of the said bank? 7th. If you find for the plaintiffs, do you find against both defendants ? 8th. If you find against only one defendant, which one? On the trial the plaintiff gave evidence tending to prove the allegations in the complaint to be true, viz. : that Miller was to try to get the certificate cashed, and if he failed in that within three weeks, that he, Miller, was to return the certifi- cate to the plaintiff, which he failed to do; and also that his (Miller's) representations, as to his responsibility and owner- ship of property, made at the time of the transfer, were false, and that he was at the time insolvent. The plaintiff took at the time of the transaction the following papers : $2,000 00. ALBANY, Oct. 31, 1868. Three months after date, I promise to pay, to the order of Isaac Miller, two thousand dollars, at The First National Bank of Albany, value received, with interest. |U.S^Iat fc Rey.8^np.| JOSIAH S. WILLIAMS. (Indorsed, Isaac Miller, Clyde, N. Y. Isaac Miller, V. P.) $5,000 00. ALBANY, Oct. 31, 1868. Six months after date, I promise to pay, to the order of Isaac Miller, five thousand dollars, at The First National Bank of Albany, value received, with interest. JOSIAH S. WILLIAMS. (Indorsed, Isaac Miller, Clyde, N. Y. Isaac Miller, Y. P.) 400 CASES IN THE SUPREME COURT [March, Moore v. Miller. No. CLYDE, N. Y., Dec. 2, 1868. First National Bank of Clyde, pay to Levi Moore, or order, three thousand dollars. < IT. S. Int. Rev. Stamp. ) TO A A P TVTTT T TTT? i 2 cents. Canceled. > lD.il-ft.Vy IVllljJLJliiv. $3,000.00. There was no evidence of knowledge on the part of the defendant, The Metropolitan National Bank, of the terms of the agreement between plaintiff and Miller, other than such as appeared in the transfer upon the certificate. The counsel for the said bank then moved the court to dis- miss the complaint as against it on the ground, among others, that the plaintiff had proved no cause of action against the bank, and that upon the plaintiff's proof the bank wasprima facie a lona fide purchaser for value of the certificates from Miller. . This motion was granted, and the plaintiff excepted and appealed from the judgment entered thereon. The jury- found upon all the issues in the case, against the defendant Miller, and rendered a verdict against him for $12,160.56. L. Tremain, for the plaintiff. Wm. G. Choate, for the defendant, The Metropolitan National Bank. Present MILLER, P. J. ; P. POTTER and PARKER, JJ. P. POTTER, J. Since the recent decision in the Court of Appeals, of the greatly mooted question that arose in McNeil v. The Tenth National Bank* it seems to me that we can hardly regard the question arising in this case as an open one. It is claimed that the whole certificate was not transferred, but only $10,000 of it ; but the obligations given by Miller in payment clearly imply an entire purchase, and the plaintiff in his evidence shows nothing to the contrary. We have been furnished the manuscript of the opinion deliv- ered in that case, and I am unable to distinguish the question See 46 N. Y., 325. 1872.] OF THE STATE OF NEW YORK. 401 Moore v. Miller. to be decided in the case at bar from the principle settled in McNeil v. The Tenth National Bank. "We may assume that the plaintiff has been greatly defrauded by Miller ; in fact, that, by false and fraudulent representations and pretences, Miller obtained from him the possession of the certificate in ques- tion ; and that, by his (Miller's) agreement, he was to return the certificate to the plaintiff if he did not get it cashed within three weeks, and that, by the secret understanding between the plaintiff and Miller, the certificate was not absolutely assigned to Miller, though it was absolute in form ; and fur- ther, that Miller did not, in fact, negotiate the certificate within three weeks, according to that agreement ; for, so the jury have found. Nay, further, we may assume that by reason of Miller's fraudulent acts he got possession of this certificate, and that plaintiff was entirely innocent in the trans- action, and, by reason of Miller's insolvency, unless he recov- ers in this action, he will lose his demand of $10,000. The plaintiff does not claim to make his case stronger than this. But we must also assume, from the evidence in the case, prima facie, that the bank, in their negotiation with Miller, acted in like good faith, and with like integrity and inno- cence, and that if the plaintiff recover against them, they would suffer in like amount by the fraud of Miller. It would then be a contest between two innocent parties, in which one must of necessity suffer. It then becomes a ques- tion of law, which of these two innocent parties must bear the loss. Is it he who puts in motion the instrumentality, the apparent agency which occasions the loss, or he who with confidence advances his means, relying upon the integrity of the transaction, and makes the advance upon the faith of it I By well-established rules of law, clearly the latter. Nor is- this inconsistent with that other and well-conceded rule, thafc in regard to the title of property, other than negotiable com- mercial paper, the grantee obtains no better title than his grantor had, as was held in Hallard v. Burchard (40 N-. T., 314.) The case before us is an exception to, or rather, per- haps, is distinguishable from that case, by an additional fea,- LANSING VOL. VL 51 402 CASES IN THE SUPREME COURT [March, Moore v. Miller. ture connected with it. In the case before us, the plaintiff, as grantor, executed to Miller, one of the defendants, a con- veyance, by an instrument in writing, under his own hand, purporting to be for a valuable consideration, the certificate in question ; thus, apparently, conveying away from himself all title thereto. This conveyance, in legal effect, clothed Mil- ler with the apparent power of absolute alienation ; and under this apparent power, Miller, with like apparent consideration, conveyed the said certificate to the defendant, The Metro- politan National Bank, parties who were innocent strangers to the secret understanding between the plaintiff and Miller. As it turns out, this certificate was obtained from the plaintiff by a gross fraud and false representations on the part of Mil- ler as to his solvency. There was also a secret understanding between Miller and the plaintiff, that the sale was conditional, and not absolute. True, as between the plaintiff and Miller, the certificate so obtained, while it remained between them, carried no title to Miller, because the fraud which avoided the contract could be given in evidence, notwithstanding the absolute nature of the transfer upon its face ; but when the plaintiff, by his own voluntary act, clothed Miller with the solemn evidences of title, the absolute power of sale and all the indicia of ownership, including the possession, for the very purpose of allowing him to make a transfer of this cer- tificate, he also thereby authorized, if he did not invite, the bank, and all other persons who chose to put confidence in this instrumentality or agency, to make the purchase. (Pick- ering v. Bush, 15 East. E,., 41, 42, &c.) And, if made in good faith, the title so obtained is preferred, in law, to the title claimed through the secret understanding between the plain- tiff and Miller. (Saltus v. Everett, 20 Wend., 267, 268 ; Howry v. Walsh, 8 Cow., 238 ; Rootv. French, IS Wend., 570.) But further discussion of this question is unnecessary, as I think. The case of McNeil v. Tenth National Bank (supra), in the Court of Appeals, has reconciled what had been before regarded as a different doctrine in other reported cases, especially that in Bollard v. Burgett, and overrules the same case of McNeil 1872.] OF THE STATE OF NEW YORK. 403 Terwilliger v. Beals. v. Tenth National Bank, reported in 55 Barb., 59. Con- trolled by the decision of the last entitled case, in the Court of Appeals, and adopting the distinctions so ably and clearly presented therein between that and the cases supposed to have been in conflict, I am clear that the judgment is right, and should be affirmed, with costs. Judgment affirmed. WILLIAM TERWILLIGER et al., Respondents, v. REUBEN C. BEALS, Appellant. (GENERAL TERM, FOURTH DEPARTMENT, JUNE, 1872.) A selling factor is bound, when reasonably requested, to make and present to bis principal a full and complete statement of his dealings and the accounts between them. Accordingly, where the principal applied to his factor, to whom he had entrusted goods for sale under an agency of indefinite duration, for return of the goods, and notified him of a termination of the agency, and the factor claiming a lien for advances and commissions declined to surrender, and upon the principal's offer to pay the amount of the claims, substantially refused to make a statement of them, Held, that the lien was forfeited, and the principal could maintain replevin for the goods. Held, also, that the rules in relation to tender as between debtor and creditor were not applicable. AN appeal from a judgment in favor of the plaintiffs on the report of a referee. The action was replevin. The plaintiffs were manufacturers of iron safes in the city of New York, and the defendant was their selling factor in the city of Syracuse. The plaintiffs commenced sending the defendant safes for sale in June, 1868, upon the following terms : The safes were to be sold at the list price fixed by the plaintiffs, and the defendant was to* have twenty per cent thereof for his compensation and expenses ; the plaintiffs to pay the freight to the store of the defendant ; and all the other charges and expenses to be paid by the defendant, and he to guarantee payment of sales. 404 CASES IN THE SUPREME COURT [June, Terwilligcr v. Bealg. On the 20th day of April, 1870, there were two safes in the defendant's possession, sent forward under this arrange- ment ; both received by him in March previous. The price list of one was $170 ; of the other, $180. Upon that day the plaintiffs, at Syracuse, gave notice to the defendant that they terminated the arrangement existing between them, demand the safes, which the defendant refused to deliver up ; and this action was commenced June 20, 1870. The defendant claimed that, by the terms of the contract, he was to have the exclusive agency at Syracuse. This the plaintiffs deny, and the referee does not find upon the ques- tion. At the time the safes in question 'were forwarded to the defendant, one Gifford was selling safes in Syracuse aa the plaintiffs' agent. By the terms of the contract between the parties nothing was agreed upon as to the length of time defendant should act as plaintiffs' factor ; nor was it provided that any previous notice should be given of its termination by either party. Upon the trial it appeared that the defendant had advanced upon these safes $26.51 freight and cartage. The defendant claimed a commission on a safe sold to a Mr. Fenton by Gif- ford, on the ground that he. commenced the negotiation for the sale. The questions litigated before the referee, and dis- cussed on the argument of this appeal, relate to the defend- ant's lien on the safe, and whether the same was extinguished by the tender of the plaintiffs or lost by the conduct of the defendant himself; and the evidence on these points is referred to in the opinion of the court. Wm. C. Ituger, for the appellant. L. W. Hall, for the respondent. Present JOHNSON, P. J. ; TALOOTT and BAKKEK, JJ. BARKER, J. That a selling factor has a lien on the goods of the principal, in his hands, as a security for his advances, 1872.] OF THE STATE OF NEW YORK. 405 Terwilliger . Beals. commissions and liabilities, personally incurred in the busi- ness carried on, is an undisputed proposition. Before the principal can reclaim his property from the hands of his agent, he must fully discharge such lien by payment, or, what in law is equivalent to payment, tender the amount justly due the factor. The lien may also be discharged by some wrongful act of the agent, or breach of duty on his part. That the defendant had a lien on these safes, at the time of the demand and refusal, is established by the evidence and findings of the referee. That the plaintiffs made a full and technical tender of the amount of such lien, as the same was established on the trial, is not claimed. The precise point relied upon by the plaintiffs is that the defendant, by his conduct, waived and relinquished such lien ; and that they were entitled to the possession of the property without a payment of his advances and commissions. This proposition seems to be fully supported by the evidence and circumstances disclosed on the trial. It seems too clear for discussion that a selling factor, like other agents, is in duty bound, whenever reasonably requested so to do, to make and present to his principal a full and com- plete statement of the dealings and state of the accounts bet \veen the parties, to the end that the principal make known concerning his own affairs, and, in some instances, as in this, to ascertain the obligations he may be under to his agent, and how he may proceed to terminate the agency and reclaim his property. The information sought by a demand of a statement is presumed to be solely with the agent; and that the principal is ignorant of the true state of affairs, as connected with the business confided to his agent. Such presumption must be the foundation of this unyielding rule. In this case it does not appear that the plaintiffs knew the extent of the defendant's lien, when one of them had an interview with the defendant, with the avowed object of ter- minating his agency. Nor could they have known the exact amount of it, so as to make a tender of the same. The very nature of the defendant's claim, as sought to be established on 406 CASES IN THE SUPREME COURT [June, Terwilliger v. Beals. the trial, and not disclosed before the action was commenced, made it impossible for the plaintiffs to know the extent and justice of it. The defendant claims a lien for freight paid on these two safes, and for prospective commissions on a sale of the same. Now -when the plaintiffs, at the defendant's own place of business, offered to pay him his liens and charges, he was bound to inform them of the amount of the advances made on the property, and the state of negotiations for the sale of the safes, or either of them, if any were on foot, that they might examine into the same, and ascertain whether they were well founded or not ; and, if found to be so, then the exact sum to be paid would be before them. On the trial "Wm. II. Terwilliger, one of the plaintiffs, tes- tified, in substance, as follows : " I asked defendant for the possession of the safes. He said he would not give them up until paid for. I told him I wanted to close up the business with him, and wanted either the safes or the pay for them ; and he said he would not pay for the safes until he sold them. He said he had been to some expense for freight on them. I told him I was ready to pay any charges on them, and asked him how much. He said he did not know; that possession was nine points in law, and that he had these nine points, and that he was going to keep them. I told him that I did not want any trouble, and hoped he would give them up ; and that if he did not I should commence proceedings to get them. He said he would take counsel. I said, all right, and that I would give him one hour to do so. He did so. Upon his return I took out my money and asked him what his charges were, and that I was ready to pay him. He refused to take it, and said he had been advised to keep the safes ; and thereupon I commenced this action." This witness, on his cross-examination, gave further evidence showing his offer to pay any charges the defendant might have. The defendant, who was examined as a witness in his own behalf, testified that the plaintiff, AVm. H. Terwilliger, said to him that he would send for the safes. " I then said, you can have them by paying charges. He said he should come and 1872.] OF THE STATE OF NEW YORK. 4Q7 Terwilliger v. Beals. take tliem. lie then took out his money and said, I will pay your charges. I told him I did not know what my charges were until I hunted up my bills; but that, before I did any- thing about it, I would take counsel. He did not offer any money. I then went, saw counsel and went back. He asked me what I had made up my mind to do. I told him that I should hold the safes until I was fairly settled with. He did not say anything about paying me then, and took no money out. I heard no more from him until he came to my house with the sheriff." Upon the trjal the defendant made no claim that he had at any time presented an account of his advances, or the amount of commissions claimed. The referee found as a fact that, at the time of the demand, the plaintiffs offered to pay the freight and charges incurred by the defend- ant on the same. The defendant's conduct put him in fault, and he omitted a plain and reasonable duty he owed the plaintiffs; and thereby such lien as he may have had on the goods was waived and extinguished. He could no longer claim to hold the goods, under his lien, after his omission and refusal to state the amount of his claim. The learned counsel for the defendant has sought to make applicable to this case the rules in relation to tenders, that govern as between debtor and creditor. They do not fairly apply here. It is unnecessary to consider whether, upon the trial, the defendant made a case entitling him to commissions or not, on one or both of the safes. The single question on the trial was, had the defendant, by his own conduct, lost his special property in the safes ; and were the plaintiffs entitled to pos- session under and by virtue of their general property in the same. Although the plaintiffs have reclaimed their property, they are personally liable to the defendant for any advance or commissions due him. The judgment is affirmed. Judgment affirmed. 408 CASES IN THE SUPREME COURT [June, Beals v. Stewart. MARY E. BEALS, Appellant, v. JOEL F. STEWART, Respondent. (GENEKAL TERM, FOURTH DEPARTMENT, JUNE, 1872.) The purchaser of a mill and mill-pond, with an casement for running the water from the pond through a race-way over adjoining land, is not restricted in maintaining the race to the condition in which it was at the time of his purchase, but acquires the right to make necessary improve- ments to the full enjoyment of the easement. "Where the purchaser removed deposits in the race-way to the sides thereof, and lowered its bed to its original depth, and below the depth at the time of the purchase, Held, that the removal being a necessary improve- ment to the right to discharge the waters from the pond, he was not liable in trespass to the owner of the servient estate. Held, also, that the act was in the nature of a repair to the ditch and authorized as such. The right to use a pond as a mill-pond includes the right to float logs in the pond for the use of the mill. While the servient estate belonged to the plaintiff's grantee an encroach- ment was made thereon by the dam of the dominant owner, Held, that the plaintiff could not maintain trespass, but must sue in ejectment. THIS is an appeal from a judgment on the report of a referee. The evidence is not set forth in the bill of exceptions, which simply states that the evidence tended to prove the facts found by the referee. The action is trespass, for entering upon the plaintiff's premises, digging up the soil, and placing logs and other obstructions thereon. The judgment was for the defendant, and the plaintiff appeals therefrom. Present MULLIN, P. J. ; TALCOTT and BARKER, JJ. BARKER, J. In the year 1856 Benjamin Chamberlain was the owner of the locus in quo, together with other lands adja- cent thereto; all situated upon a mill stream. A mill-dam was then constructed across the stream, and the mill-pond, thus formed, flowed a portion of the lands beyond the natural banks of the stream. Below the dam, and some rods from 1872.] OF THE STATE OF NEW YORK. 409 Beals . Stewart. the stream, there was a saw-mill, propelled by the waters collected in the dam. The water used escaped by a tail-race, several rods in length, connecting with the natural stream. Chamberlain first conveyed, in fee, a portion of these lands, upon which the saw-mill is erected, together with the mill- pond, and the privilege of keeping the water to a certain height, with all and singular the hereditaments and appurtenances thereto belonging or in anywise appertaining. The defendant has succeeded to this title, and is in posses- sion, using and operating the saw-mill. Chamberlain then conveyed the remaining portions of this tract to other parties ; and there is embraced therein the par- cel of land of about one acre, over which the tail-race is located. The plaintiff now owns and occupies this parcel of land. The mill was erected and the tail-race dug in the year 1843 ; and between that time and the conveyance of the mill property by Chamberlain the race filled up to the depth of six inches, by the operation of freshets in the stream. In 1870 the defendant entered upon the plaintiff's lands, and cleared out the tail-race by throwing out this deposit of earth, leaving the same on the banks of the race ; thus open- ing the race to its original depth and no lower. For this act the plaintiff seeks to recover in this action. The referee finds " that such removal of earth was neces- sary for the proper use of said mill by the defendant ; and that in so doing the defendant did not lower the bed of the tail-race below or deeper than it was originally constructed," and did no unnecessary injury to the plaintiff's lands ; and did nothing that was not required to protect the tail-race from injury. It is not disputed by the plaintiff but that the defendant has an easement over his land for the purpose of running the water from the saw-mill to the creek. He insists, however, that such privilege can only be right- fully enjoyed by the defendant in keeping the race in the exact condition, as to width and depth, as well as general LANSING VOL. VI. 52 410 CASES IN THE SUPREME COURT [June, Beals v. Stewart. course, as the same was in fact on the day Chamberlain deeded the mill property. The right acquired by the dominant estate over the servi- ent estate, in virtue of Chamberlain's deed, was a discharge of the water used at the mill over the land in question. The owner of the dominant estate may at any time do that which is necessary to enjoy the easement and make the same effect- ual ; and, as an incident thereto, keep the same in repair and fit for use. (Washburn on Easements, pp. 304:, 566 ; Pres- cott v. White, 21 Pick., 341.) It is to be observed, in considering what the owner of this easement may do, within the above rule, that the grant does not, in terms, prescribe the nature and dimensions of the ditch to be used in carrying away the water. The change of machinery, and alteration of the mode of using the power on the dominant estate, might necessitate a change in the struc- ture of and require greater depth in the tail-race ; then such, owner can, of right, do such things. On the other hand, the servient estate may advance in value, and be used for pur- poses very different than those to which it was applied when the burden was first imposed upon it. In such changed cir- cumstances the owner of the easement would, doubtless, be required to keep the race in better repair, and maintain it by a different structure than when the use was first enjoyed, if required, so as not to do unnecessary injury to the land- owner. It follows, that the proposition urged by appellant cannot be adopted as the law of this case. We are of the opinion that the act of the defendant, in sinking the race to its original depth, is justified, under the finding of the referee, as a necessary improvement, to the full enjoyment of the right to discharge water over the plaintiff's land. Besides, it is very plain that the removal of the earth was an act in the nature of a repair to the ditch. The plaintiff also complains that floating saw-logs in the mill-pond is a user not secured by the grant under which the defendant claims. The plaintiff is the owner of the fee of the land flooded by the mill-pond ; but the right to use the 1872.] OF THE STATE OF NEW YORK. 411 Pechner . The Phoenix Insurance Co. same for a mill-pond gives the right to float logs therein for the use of the mill. It is quite a customary way of moving logs into the mill, to use the pond as a boom, and then run them through the head-race to the saw-carriage. Such use nowise increases the burden imposed on the lands ; and in this instance it is impossible to see how the owner has been in the least injured or disturbed. Before Chamberlain conveyed the lands owned by the plaintiff the defendant altered the south-east corner of the mill-dam, and a section of it was constructed on lands then owned by Chamberlain. For this act the plaintiff cannot maintain trespass ; her remedy is ejectment. The judgment appealed from is affirmed, with costs. Judgment affirmed. ISIDOR PECHNER v. THE PHOSNIX INSURANCE COMPANY. (GENERAL TERM, THIRD DEPARTMENT, JUNE, 1872.) To entitle a defendant to removal of a cause into the United States Cir- cuit Court, under the act of 1789, 12 (1 Stat., 79), he must show the plain- tiff a citizen of another State on the day of the commencement of the action. A petition for removal does not meet this requirement by stating that the plaintiff is a citizen of another State. Nor is it sufficient if the plaintiff appear to be a resident in the State ; he must be shown a citizen as well. General agents of an insurance company have authority to waive a condi- tion that other insurances shall be indorsed on its policies. An examination of the policy issued by the company by its agent in con- nection with other policies on the insured property, and his assertion to the insured that the insurance is valid, Held, a waiver of the require- ment that the other insurances shall be indorsed. do, also, failure of the general agent to object to the omission of the indorsement of other insurances upon notice thereof, on consenting to an assignment by the assured or renewal, is a waiver of the condition. Assent in such case to certain insurances extends also to new and different insurances in lieu of them taken at their expiration for the same aggre- gate amount. 412 CASES IN THE SUPREME COURT [June, Pechner v. The Phoenix Insurance Co. THIS action was brought to recover a loss arising under a policy of insurance issued by the defendant through its agency at Elmira, to D. Strauss & Co., on the 31st day of March, 1864. By its terras the defendant agreed to insure the assured against loss and damage by fire to the amount of $2,000, on their stock of goods contained in the building known as 157, on the south side of Water street in Elmira. This policy contained the statement : " Other insurances $2,000." The insurance commenced at the date of the policy, and extended to the 31st day of March, 1865. The policy contained the provision, that " If the assured shall have, or shall hereafter make, any other insurance on the property hereby insured, or any part thereof, without the con- sent of the company written hereon, this policy shall be void." The insured had other insurance on the same pro- perty amounting to the sum of $5,500. During the year mentioned in the first renewal of the policy, the assured sold out the property insured and assigned the policy itself to the plaintiff. At that time, according to the testimony of Strauss, he and the plaintiff called upon Perry & Scott, who were admitted to be the local agents of the defendant at Elmira, in order to secure consent for the transfer of the property and the policy to the plaintiff, and its continuance as an insurance to him. This witness testi- fied that he had the other policies with him, all the four poli- cies, and told Scott he had sold out to the plaintiff, and " wanted him to sign over these policies ; so he said all right, and Pechner took the policies, all four policies, and gave them to him, and told him he wished him to see if they were all correct ; he wanted to be sure about it, and took his and signed it over, and Scott took the policies and examined them ; he opened them and looked at them, and took out his and made the transfer of it ; he wrote his consent on the back of it, and Pechner asked him to see whether I charged him too much for the policies ; he said he could not read ; and Scott looked at them, and Mr. Scott told him I charged him somewhere about right." " When Scott examined the poli- I 1872.] OF THE STATE OF NEW YORK. 413 Pechner v. The Phoenix Insurance Co. cies and handed them back he said, there, you are all right ; now, this is all you want, and we went off." " Scott said we had to go to Ayers with the other policies and get his con- sent." Upon his cross-examination the witness testified : " We didn't say anything about consenting to $5,500 other insurance when we called on Perry & Scott to get their con- sent to the assignment of this policy. When I got my renewal in March, 1865, I said nothing about the other insur- ance I had on my property." " I never asked Perry & Scott to consent to this 5,500 other insurance." The plaintiff was also sworn and examined concerning the same interview and transaction. He said that Strauss took the four policies when they went to Perry & Scott's office. That Strauss there said to Scott : " Mr. Scott, I have sold out that stock of goods to Mr. Pechner ; there is the policy on the goods Mr. Pechner bought of me. Will you please pick out yours from the policies and sign it over to Mr. Pechner ; and so Mr. Scott took the policies and opened them, and I asked Mr. Scott, will you please look them over and see if they are all right, because I can't read English, I can read newspapers, but not writing, so I leave it to you to see if everything is all right ; and Scott looked them over and signed this policy over to me, and folded them up and gave them back to me and said, ' Mr. Pechner, these policies are all right;' Scott said we must have the other policies signed over too." The agent, Scott, testified that he consented to the assign- ment of the policy in suit, but in substance denied the evi- dence of these witnesses, that he had examined the other poli- cies and declared the policies to be right. The policy in suit was renewed by those local agents by a written renewal in the usual form made use of for that pur- pose, on two different occasions. First to Strauss & Co., on the thirty-first day of March, 1865, for one year, and secondly to the plaintiff, at the expiration of that time, for one year from the thirty-first day of March, 1866, and the premium received for each renewal. At the time of the last renewal, 414 CASES IN THE SUPREME COURT [Juno, Pechner . The Phoenix Insurance Co. the plaintiff testified that he had the four policies together, that he handed them to Scott to see when they run out, and he opened all four of the policies to see when they ran out. This witness also testified that he removed to another store in April, 1866 ; that he went to Scott to secure his consent, and that Scott then took the four policies and wrote down in each the number of the store. The body of the policy in suit contains a consent to the removal. The other policies issued to Strauss & Co. were in the North- western Insurance Company, for $1,000; in the Home, of New York, for $3,000, and the other in the Hartford Insur- ance Company, for $1,500. They were issued by Ayers, as agent, and when they expired he issued three other policies to the plaintiff in their place, with his consent. These other policies are as follows : One in the North American Insur- ance Company for $2,000, one in the Arctic Insurance Com- pany for $1,500, and one in the National Insurance Company of Boston for $2,000. The plaintiff testified that some time in the summer he took these new policies to Scott, and asked Scott if these insurances were good and all right. He opened them and looked them over, and said they were all right. Scott denied the statements of the plaintiff detailing the inter- view claimed to have been had with him concerning these new policies, as well as those relating to the three policies in the other companies. A loss within the terms of the policy was shown to have been sustained by the plaintiff during the year included in its renewal to him. The defendant also showed that an application had beea made, at the time of its appearance in the action, for the removal of the cause to the Circuit Court of the United States on the ground that the parties were citizens of different States. This application was denied. And the defendant insisted that the court lost jurisdiction of the action by the making of that application. Various exceptions were taken to the rulings of the court during the progress of the trial at the Circuit, and also to the 1872.] OF THE STATE OF NEW YORK. 415 Pechner v. The Phoenix Insurance Co. charge. The jury found for the plaintiff; and the defendant's exceptions were ordered to be first heard at the General Term, and judgment in the meantime suspended. J. B. Perkins, for the defendant. S. B. Tomlinson, for the plaintiff. Present P. POTTER, P. J., PARKER and DANIELS, JJ. DANIELS, J. The petition upon which the application was made for the removal of this action into the United States Circuit Court, stated that the suit was commenced by the service of a summons and complaint, on or about the first day of June, 1867. And it afterward avers that the plaintiff is a citizen of the State of New York. The petition is dated the eleventh, and it was sworn to on the twelfth day of June, in the year 1867. These averments did not show the plaintiff to have been a citizen on the day when the action was commenced ; and that should have been shown to have been the fact to enti- tle the defendant to the removal of the action into the United States Circuit Court. (1 U. S. Statutes at Large, 79, 12.) lie might very well have been a citizen on the day when the petition was dated, and still not have been so when he com- menced his action. Such changes are by no means uncommon under the naturalization laws of the United States. The state- ment made in the oath to the complaint, describing the plain- tiff as of Chemung county, does not change the case. For he could have been of that county and a resident in it without being a citizen of the State. It is not every resident in the State that can properly be designated as one of its citizens. That term must be limited to such residents as, in addition to the fact of residence, possess the rights and privileges pf citizens. But even if the statement should be held to an alle- gation of citizenship, it would not advance the position of the defendant. For the complaint contained in the case does not appear to have been sworn to until the fifth of June, in the 416 CASES IN THE SUPREME COURT [June, Pechner v. The Phoenix Insurance Co. year 1869, nearly two years after the action was commenced. The jurisdiction of the court was clearly unaffected by the proceedings taken for the removal of the cause. And the defendant's exception depending upon the ruling made con- cerning that portion of the case must, therefore, be overruled. (Ilolden v. Putnam Fire Ins. Co., 46 K Y., 1.) Under the evidence which was given in the course of the trial showing the agency of Perry and Scott, they were the defendant's general agents, for they .appear to have been authorized to transact all its business in Elmira. (Lightbody v. North Am. Ins. Co., 23 "Wend., 18 ; Carroll v. Charter Oak Ins. Co., 40 Barb., 292 ; Post v. JStna Ins. Co., 43 Barb., 351.) And being general agents, they had, under the established law of the State, authority to waive the requirement con- tained in the policy, that other insurances should be indorsed upon it in order to sustain its validity as an insurance upon the property of the assured. (Frost v. Saratoga Mutual Ins. Co., 5 Denio, 154; Ames v. N. Y. Union Ins. Co., 14 Y. Y., 253 ; SiddU v. Market Fire Ins. Co., 29 N. Y., 184 ; JBoehen v. Williamsburgh Ins. Co., 35 N. Y., 131 ; Carroll v. Charter Oak Ins. Co. ; Post v. ^Etna Ins. Co., supra.} The evidence given by Strauss and the plaintiff, as wit- nesses, if it was entitled to credence, showed sufficient to con- stitute such a waiver. And for that reason, notwithstanding their contradiction by the witness Scott, the court could nei- ther nonsuit the plaintiff nor direct a verdict in favor of the defendant. Their evidence showed an examination and inspection of all the policies by Scott, one of the agents, under circumstances requiring him to determine whether they were valid or not. And he pronounced them to be valid, includ- ing the one issued by the defendants, which could not have been the case unless he designed to waive, on behalf of the defendant, the requirement that the other insurances should have been indorsed upon it. If the jury believed these two witnesses, as by their verdict they appear to have done, then the defendant did through its agent have notice of the other 1872.] OF THE STATE OF NEW YORK. 417 Pechner v. The Phoenix Insurance Co. insurances which Strauss & Co. procured upon the property, and beyond that effectually waived the condition which made the validity of the policy dependent upon the written consent of the defendant to such other insurances. But even if there was no express waiver, but a mere notice of those insurances, the objection to the omission to indorse them was substantially waived on three distinct occasions. First, by the consent to the assignment of the policy in suit from Strauss to the plaintiff, then by the renewal of the policy to the plaintiff on the "thirty-first of March, 1866, and again by the consent given the plaintiff to the removal of his stock from one store to the other, in the following month of April. If the agent at these several times knew of the other insur- ances which had been issued to Strauss & Co., those acts of themselves were sufficient to waive the want of the indorse- ment. (Carroll v. Charter Oak Ins. Co., 40 Barb., 292; Sherman v. Niagara Fire Ins. Co., 46 N. T., 526.) Assuming, as may properly be done, from the verdict ren- dered by the jury, that the agent had notice of the existence of the other policies and waived the objection to the omission to have them indorsed upon the policy in suit, then the fact that new policies were taken out in lieu of the others, at the time when they expired, will not prevent a recovery by the plaintiff, even though the new policies were not brought to the notice of the defendant or its agent. For by the previous waiver, the defendant surrendered its right to object to the maintenance of that amount of other insurance upon the same property. As to that extent of other insurance, the defend- ant by its waiver had indicated its approval, and the plaintiff was at liberty to continue it in the companies issuing the poli- cies to Strauss & Co., or in any other companies that might enjoy his confidence. It was in substance and effect a con- sent that other insurance might be held upon the property to the amount mentioned in the other policies issued to Strauss & Co. without the procurement of their indorsement. That was the fair and reasonable import of the act, and it was probably so understood by the plaintiff when he received the new poll- LAXSING VOL. VI. 53 418 CASES IN THE SUPREME COURT [June, Pechner v. The Phoenix Insurance Co. cies in the other companies. By these policies no change was made in the aggregate amount of the insurance upon the property, and the defendant had no interest which could be prejudiced by the want, or promoted by the fact, of notice that they had been taken. {Benjamin v. Saratoga Mutual Ins. Co., 1-7 N. Y., 415.) In Brown v. Cattaraugus County Mutual Ins. Co. (18 N". Y., 385), the policy contained a clause render- ing it void if the insured had any other insurance against loss by fire on the property, not notified to the defendant, and fur- ther declaring that if he should make any such insurance and should not, with all reasonable diligence, give notice to the secretary and have it indorsed, the policy should cease. It appeared in the case that the plaintiff obtained another insur- ance from the Ontario and Livingston Mutual, on the 9th of July, 1855. But the plaintiff proved that this was in renewal of a previous insurance which expired June 20, 1855. And the court held that this insurance was not within the terms or spirit of the provision requiring notice of other insurance afterwards procured. This authority must be conclusive upon this point ; for it can make no substantial difference in the case, whether the subsequent policies for the amount previously insured are issued by the same or by other insurance companies. They are no more other insurances in the one case than they are in the other. In the authority referred to, that was greater reason than any which can be found in the present case for holding the new policy to be another insurance, for it was not issued until nineteen days after the first had ceased to exist. In view of this conclusion, it can hardly be important to inquire whether the court was right in the last direction given to the jury. But if it should be deemed to be so, no doubt can be entertained as to the propriety of that direction. Immediately preceding it, the court had been calling the attention of the jury to the three new policies which had been procured by the plaintiff and the effect of what was sup- posed to have been the interview in the summer concerning 1872.] OF THE STATE OF NEW YORK. 419 Pechner The Phoenix Insurance Co. them between him and the agent, Scott. And as to those policies, the judge observed : " If Scott saw the policies and knew the meaning of them, and said it was all right, the plaintiff can recover." As an abstract legal proposition, no fault can be found with this direction, for by the term "it," reference appears to have been made to the policy in suit. That clearly seems to have been the case, from what had been observed just before this statement was made. If he did see the policies, and then knowing the others were not indorsed upon the one in suit, pronounced that all right notwithstand- ing the omission, it exhibited a clear purpose to waive the condition. Because, without such a design, he could not pro- perly or truthfully have declared the policy in suit to be all right. And that would ordinarily be understood as the effect of the words made use of by the agent Whether the evidence given relative to that circumstance was sufficient to justify the submission of that inquiry to the jury, was a question not made upon the trial. And for that reason, it need not be, and indeed cannot be, considered upon the present disposition of the case. No exception was taken presenting that precise point. The exception taken to the question whether Scott knew that the witness had other insurance with Ayers, the agent of the other companies, cannot be sustained, even though the question should be deemed to be improper in point of form. For it was important, as a fact, to prove that Scott did have that knowledge. But no suggestion was made showing that the question put to the witness was objected to as being for- mally improper. If that had been done, the inquiry could at once have been so modified as to have deprived it of all objec- tionable features. As the objection was made, even if the question was in form improper, it was too general to be allowed to prevail at this time. (Fountain v. Pettee, 38 N. Y., 184.) The exceptions taken to the evidence offered, to prove the waiver of the condition requiring other insurance beyond the two thousand dollars mentioned in the body of the policy to 420 CASES IN THE SUPREME COURT [June Rogers v. Wheeler. be indorsed upon it, have already been disposed of, in sub- stance, by the consideration of that evidence as being properly before the court and jury. This evidence did not contradict the contract made between the parties, but merely tended to show the performance, or observance, of the condition by the assured to have been dispensed with after the policy was issued and delivered. Its object was to prove a subsequent modification of some of the terms of the contract, which can always be done, even by oral evidence and without a new con- sideration. (Blanchard v. Weeks, 38 N. Y., 225.) ~No reason exists for interfering with the result in this case, and the defendant's motion for a new trial should be denied, and judgment ordered for the plaintiff on the verdict. New trial denied. JAMES ROGERS AND JOHN ROGERS, Respondents, v. WILLIAM ' 262 A. WHEELER et al., Appellants. (GENERAL TERM, THIRD DEPARTMENT, JUNE, 1872.) The defendants were common carriers, and also had, at one terminus of their route, an elevator through which they received merchandise for transportation, and which they also used as a warehouse for storage; having received at the elevator from a connecting carrier the plaintiffs' grain, consigned to a point beyond the other terminus of their line, with- out directions or agreement for its storage, Held, that they were liable to the plaintiffs as common carriers and not as warehousemen. A. practice of plaintiffs to bag grain, shipped to them over defendants' line, at the elevator as a matter of convenience, not founded on any under- standing or agreement between plaintiffs and defendants, held not to affect the defendants' liability as common carriers. Letters of the plaintiffs sent to the defendants in regard to a former ship- ment of grain, directing the forwarding of part of such shipment, and containing no directions as to the residue, construed, and held not to show an understanding that the grain in question should be held in store for orders. Nor does the evidence of an agent of the defendants, that the defendants' grain was stored until ordered forward, and that in storing it he acted as agent for plaintiffs, the only authority for so acting being derived from 1872.] OF THE STATE OF NEW YORK. 421 Rogers v. Wheeler. the bills of lading, by which the grain was consigned to the plaintiffs at its destination under the care of such agent at the elevator. Where the only tendency of certain incompetent testimony was to estab- lish a fact which the referee expressly negatived by his findings of fact, Held, that there was no error for which the decision could be disturbed. The consignment to care of " A B, agent," it appearing that he was agent only for the defendants, and solely in their employ, was a consignment in effect to the defendants. And that the defendants had previously received and carried the plaintiffs' goods similarly consigned is evidence of an understanding by defendants that it was to their agent for their benefit. APPEAL from judgment recovered on referee's report. Edward C. James, for the appellants. Matthew Hale, for the respondents. Present POTTER, P. J. ; PAEKEB and DANIELS, JJ. DANIELS, J. This action was brought to recover the value of a quantity of grain destroyed by fire while it was in an elevator, situated at Ogdensburgh. The defendants, at that time and previous thereto, had the possession and use of the elevator, together with the railroad of the Northern Railroad Company, as trustees for the second mortgage bondholders of the Northern Railroad Company. Before and at the time of the fire this elevator was used and employed by the defend- ants for the purpose of elevating grain into it, storing it there for the owners, and also for the defendants themselves, where it was received, there to be transported by them over the Northern railroad. In their capacity of trustees, they carried on the business of warehousemen at the elevator, and also that of common carriers over the railroad they had in their pos- session. The grain received from the lake for transportation over the road by the defendants as common carriers was so received at the elevator, and afterward delivered from there on the cars used by the defendants in operating and carrying on the business of the railroad. This road extended from Ogdensburgh to Rouse's Point; and it was used by the defendants between those places in the carriage and trans- 422 CASES IN THE SUPREME COURT [June, Rogers v. Wheeler. portation of passengers and property for hire as common car- riers. After the grain in question was received into the elevator it was destroyed by an accidental fire, which did not appear to have been caused by any fault or negligence of the defend- ants, and which consumed the elevator and its contents. The grain belonging to the plaintiffs, which was so destroyed, was in part received into the elevator on the seventh day of July, 1864, and in part on the twenty -seventh day of the same month ; and the fire destroying it occurred on the next day. This grain was shipped partly from Chicago, and the residue from Milwaukie, by propeller, in the Northern Transporta- tion Company, to be carried from those points by that line to Ogdensburgh. By the terms of the bills of lading, made iTSe of in the shipment of the grain, that company was exonerated from liability arising out of loss of the grain by fire. But these bills of lading governed the transit of the property only between the points of shipment and the termi- nation of the route by water. They declared and defined the obligations of the Northern Transportation Company from the time the property was received by it until it was properly delivered at Ogdensburgh, and no longer. (Lamb v. (Jamden and Amloy R. R. Co., 46 N. Y., 271.) After that the obligations of the carrier were left to be inferred from the circumstances indicating the course and ultimate des- tination of the property. The case is not, therefore, within the principle held and applied in Maghee v. Camden and Amboy R. R. Co. (45 N. Y., 514), where the contract made by the carrier receiving the property extended over the por- tion of the route of transit upon which it was accidentally destroyed. Upon the trial of this cause it appeared that the property in controrersy was designed by the plaintiffs to be carried and transported from the points of its receipt to Ansable Forks, where they were engaged in carrying on business. Its route from Ogdensburgh was by the Northern railroad to Rouse's Point ; from thence by boats to Port Kent, upon 1872.] OF THE STATE OF NEW YORK. 433 Rogers v. "Wheeler. Lake Champlain ; and thence by teamsters to the plaintiffs' place of business. The defendants' obligations concerning the property commenced upon its receipt at the elevator, and terminated with its delivery at Rouse's Point. The agents of the Northern Transportation Company, at Chicago and Milwaukie, had authority to contract at the usual rates for the transportation of property carried by that company over the defendants' road ; but, as has been already observed, they made no such contract concerning that which is now the sub- ject of controversy. The contract made by those agents on behalf of that company, by means of the bills of lading given in evidence, extended no farther than Ogdensburgh. There, according to these bills of lading, the grain was consigned to D. C. Brown, agent, and directed to the plaintiffs, at Ausable Forks. The precise terms made use of upon that subject in the margin of the bills, and after binding the Northern Transportation Company to carry it to Ogdensburgh, was as follows : " I. and I. Rogers, Ausable Forks, N. Y. Care D. C. Brown, agent, Ogdensburgh, N. Y." And it is from that, in view of the evidence given concerning the agency of D. C. Brown, the receipt of the property by the elevator, with notice of its destination to the person in charge of it, and the actual destination of the property, that the defendants' obli- gation concerning it is to be inferred. For the evidence, given by one of the plaintiffs as a witness upon the trial, showing that they always bagged their grain at Rouse's Point, and preferred to do so, did not restrict the defendants to its carriage in such quantities as would allow that to be done ; for no orders were ever given by the plaintiffs to that effect. Even the practice itself was qualified by the circumstance that it was only bagged when it did not arrive too fast to permit that to be done, and could be received in that way fast enough to suit the management of the railroad. This was simply a convenience to the plaintiffs, imposing no obli- gation upon the defendants to so keep and forward the grain as to secure its enjoyment by the owners of the property. No contract or understanding can properly be inferred from 424 CASES IN THE SUPREME COURT [June, Rogers v. Wheeler. this circumstance that the defendants should store the grain in the elevator, either in whole or in part, for such a period of time, and send it over their road in such quantities merely as would secure or promote the enjoyment of that privilege 'or practice by the plaintiffs. Neither the agents of the defendants nor any other person gave any evidence tending to show that the plaintiffs had indicated any desire to have their grain forwarded in that manner ; and no contract to do so can be implied from the isolated circumstance mentioned by this plaintiff in his testimony. More particularly must that be the case in view of the evidence given by the agent, D. C. Brown, who swore that he never had any directions at all from the plaintiffs in regard to the grain ; but merely knew of their manner of receiving it at Rouse's Point, which was to put men in the cars to bag it ; that he had no agree- ment with them for its storage ; that no charges were made for its storage ; and he ordered it to be sent forward as fast as suitable cars could be had, which was not, on an average, faster than one car load per day. From his evidence it is to be inferred that it was delayed at the elevator for want of cars ; and not because it was designed to forward it only so fast as it could be conveniently bagged by the plaintiffs upon its arrival at Rouse's Point. The witness testified further, that he never had any interview with the plaintiffs prior to the fire ; and, consequently, he could have had no express verbal directions concerning the manner in' which the grain was to be carried and delivered by the defendants ; and no other direction whatever was pretended, except so far as the letters produced contained instructions upon that subject. Two of these letters were proved in the case, which were writ- ten before the fire ; one to Brown, requesting that he would send forward two car loads of wheat as soon as it arrived ; and the other to Parker, saying, " if it has not come forward, will you send two or three cars at once ? " These letters related to a previous cargo of 2,500 bushels shipped, carried to Ogdensburgh, and received at the same elevator there, in the same manner as the wheat in controversy ; and they were 1872.] OF THE STATE OF NEW YORK. 425 Rogers v. Wheeler. introduced as indicating an understanding that the grain was to be retained in store at the elevator until ordered forward by the plaintiffs. But they countenance no such conclusion. The first one urged Brown to send forward two car loads as soon as it arrived, giving no directions whatsoever as to the remainder of the cargo ; but adding, " we are in great want of it ;" " send it to Rouse's Point." By this term " it," they evidently meant to refer to the entire cargo of 2,500 bushels, previously mentioned in the letter. And it was fairly to be so understood. As so construed, it informed the agent, Brown, that the plaintiffs were in great want of the entire cargo ; and desired at least two car loads as soon as it arrived. This conferred no authority to retain any portion of it ; but simply urged the transportation of a part at once. And it was probably written in this manner by reason of the fact mentioned by the plaintiff, who was called upon the stand as a witness by the defendants, that the plaintiffs understood that there was a deficiency of cars to do the defendants' busi- ness ; and that it had been so for several years prior to the fire. The other letter, written five days afterward to Parker, relating to the same cargo, certainly affords no ground for supposing the existence of an understanding to detain the grain until the plaintiffs ordered it forward ; for it implied an obligation to send it forward without specific directions. By the terms of that letter the defendants were requested (being written to Parker), if it was a request to them at all, to send the two or three car loads at once, if the cargo itself had not then gone forward ; and as no particular directions were given to send the entire cargo by the previous letter, and no express agreement existed upon the subject, according to the testimony of Brown, and the plaintiff, sworn as a witness, the obligation, under which the second letter implied that the cargo might possibly have been sent on, was exclu- sively and necessarily one arising out of the manner in which the defendants received the grain. No authority was any- where given to store the grain in the elevator or elsewhere by these letters, or by any directions given concerning it by -LANSING VOL. VI. 54 426 CASES IN THE SUPREME COURT [June, Rogers v. Wheeler. the plaintiffs. And no agreement was ever made between the parties on that subject. It is true that Brown swore that the grain was elevated and stored until ordered forward ; and that he was the plain- tiffs' agent in elevating, storing and forwarding it. But this statement was entitled to no force as evidence in this case ; for he afterward stated that he inferred that to be the case only from the bills of lading under which the grain was received; and they contained nothing whatever which war- ranted any such conclusion. This witness testified that he was never employed by the plaintiffs to act as their agent, except as the bills of lading employed him ; and they created no such employment, for they contained no reference to him beyond that of consigning the grain to his care. He was the assistant superintendent of the railroad main- tained and operated by the defendants ; and as he never was employed as an agent by the plaintiffs, or for them by any one acting under authority from them, and was not shown to sustain any other relation than that of assistant superintend- ent, either to the defendants, their railroad, or their business, or the grain in question, the conclusion follows that the con- signment of it must have been made to him in that and in no other capacity. And as neither he nor the defendants had any authority to store the grain in the elevator from the plaintiffs, the question is presented whether the defendants received it solely in their character as common carriers, and are, as such, liable for its loss. Whether they did or not must be inferred from the circumstances under which it was received. For although certain instruments, sent by the agent of the Northern Transportation Company to the plaintiffs, indicating that the defendants expressly undertook to carry the grain forward, were received in evidence, upon the trial they proved no such agreement on the part of the defendants. The only evidence given attempting to connect the defend- ants with these instruments was the statement of the agent who issued them, that he had no doubt but that the defend- ants' agents had seen printed blanks, such as those sent were, 1872.] OF THE STATE OF NEW YORK. 427 Rogers t>. Wheeler. in the office of the witness before they were filled out. This evidence was given, and the instruments referred to were read upon the trial, under the objection made by the defend- ants to the impropriety and incompetency of both. There can be no doubt but that the referee decided erroneously in both respects. For this was not a matter that could be proved by the opinion of a witness ; and if it had been it did not prove enough to subject the defendants to anything stated in the instruments read. If the judgment, or any of the referee's conclusions against the defendants, were based upon the evidence so erroneously received, it would necessa- rily follow that a new trial should be ordered on this account. But that is not the case. For, so far as this evidence tended to prove anything, it was an express agreement for the car- riage and transportation of the grain, while the referee, in his twenty-first finding, has found as a fact that the defend- ants made no express contract with the plaintiffs to carry the grain. And as long as that was his conclusion it is clear that this improper evidence could do the defendants no harm, although he found from it that the defendants knew of the existence of those blanks. For that finding, erroneous as it no doubt is, since it was only supported by improper evi- dence, in no way contributed to the conclusion finally reached. That was made to depend upon the circumstances which were legally and fully proved by the evidence in the case ; and if they necessarily lead to that result, no injury was sus- tained by the evidence improperly received. By the uncontroverted facts proved upon the trial it was shown that all grain consigned to Ogdensburgh, going over the railroad, necessarily went through this elevator; and as Brown, by the evidence in the case, was shown to sustain the relation of agent only to the defendants, in whose sole employment he appears to have been, the consignment of the grain to him as agent was a consignment, in effect, to the defendants. That it was so understood on the plaintiffs' part was clearly made to appear ; and that the defendants received it in the same way, and with the same understanding, is as 428 CASES IN THE SUPREME COURT [June, Rogers v. Wheeler. little open to donbt. For it was received as other grain, in the same way consigned, before it had been received at the defendants' elevator by the person in charge of that establish- ment, who issued receipts for part of it in the course of his employment. And all of the first cargo, and part of the second, was carried over the road and delivered before the fire occurred which consumed the residue. This was suffi- cient to show that the defendants understood that the con- signment of this grain to Brown as agent was a consignment of it to them. They had done business for the plaintiffs in the same way before. The agent of the Northern Transporta- tion Company testified that after removing the rolling freight from the boat, she was sent to the elevator to discharge her grain ; that then, or before, an abstract was made of her manifest, and a copy of what freight was to go east ; and a copy of that was delivered to the railroad agent. That, he said, was done in this instance. He added further : " I sent a memorandum of amount of grain to Bosworth, the railroad man at the elevator, with consignee's names." From that, the receipts given for a portion of the grain, the consignment made of it by the bills of lading, the receipt of it by the defendants, and the business in which they were engaged, the referee found that the defendants received the grain in their capacity of carriers, and not in that of warehousemen ; and, as there was no agreement or understanding existing for the storage of the grain in the elevator, it follows, from the cir- cumstances proved, that his conclusion in this respect was fully warranted by the evidence in the case. The delivery to, and the receipt by, the elevator was a mere accessory to the obligation to carry, which was clearly to be implied from the circumstances proven. It was the only mode in which the defendants received that description of property for the purpose of carrying it ; and as this was ultimately consigned over and beyond the terminus of the defendants' road, and was received subject to that direction accompanying the pro- perty, while it remained in their hands they held it as com- mon carriers, responsible for the consequences resulting to it 1872.] OF THE STATE OF NEW YORK. 429 Rogers v. Wheeler. from an accidental tire. This liability is so fully sustained by the authorities that nothing beyond a simple reference to them can be required to maintain the conclusion mentioned. (Blossom v. Griffith, 3 Kernan, 569 ; Miller v. Steam Navi- gation Co., 10 N. Y., 431 ; Ooold v. Chapin, 20 id., 259 ; Ladue v. Griffith, 25 id., 364 ; Fenner v. Buffalo and State Line R. R. Co., 44 id., 505 ; Wiibeck v. Holland, 45 id., 13.) This conclusion does not conflict with that which was declared in Banou v. Eldridge (100 Mass., 455), upon another claim, arising out of the destruction of % other property in the same elevator at the time of the fire. For that property, it was held, was not in the possession of the defendants as carriers. What the evidence was which was given upon that subject does not appear in the report of the case ; and for that reason it cannot be deemed an authority against the defendants' liability on the present demand. In this case it is to be inferred, from the manner in which the defendants received the property, with knowledge of its consignment over and beyond the terminus of their road, that they received it for the sole purpose of being carried and not stored by them ; and, consequently, that they became liable for its loss by the fire which destroyed it. As the cir- cumstances proved led to this conclusion, the referee properly refused to find the other facts claimed to have been sustained by the evidence. They were inconsistent with the established liability of the defendants, and, for that reason, not only not proved, but actually negatived by the result maintained in the referee's report. The judgment should be affirmed, with costs. 430 CASES IN THE SUPREME COURT [June, Dougan v. The Champlain Transportation Co. SYLVIA DOUGAN, Administratrix, &c., Respondent, v. THE CHAMPLAIN TRANSPORTATION COMPANY, Appellant. (GENERAL TERM, THIRD DEPARTMENT, JUNE, 1872.) The State courts of common law have jurisdiction in causes of action arising within admiralty jurisdiction, where a remedy exists at common law, although the cause of action is not recognized by the common law, but is given entirely by the State statutes. So held in view of the acts of congress of 1789 and 1845 (1 U. S. Stats, at Large, p. 76, 9 ; 5 id. pp. 726, 727). Plaintiff's intestate, a passenger upon defendant's boat, went upon the outer lower deck, outside the weather door, upon a cold night, where the water thrown upon the deck by the wind was freezing, and his hat hav- ing blown off, in an effort to save it slipped and fell. The gangway of the boat was entirely open excepting a bar at the top, and through this he slipped overboard and was drowned. There was a water closet on the outer part of the lower deck designed for the use of the crew, and he had remarked that he was going out there to use this. There was also another water closet inside the weather door for passengers' use, with a sign indicating its purpose, but it did not appear that deceased knew of this, and there was no prohibition upon the use of the outer one by pas- sengers. The boat at the gangway was from thirty to forty feet wide, sloping slightly from the center to the bulwarks, and the gangway was from eight to nine feet wide. Held, that the omission of a more perfect guard at the gangway was not such negligence on the part of the company as made them liable for the accident. Held, also, that the defendant's negligence under the circumstances must be held to have contributed to the accident. APPEAL from judgment rendered on the verdict of a jury, and from order denying a new trial. The facts are stated in the opinion. M. Hale, for the respondent. frauds A. Smith with A. C. Hand, for the appellant. Present POTTER, DANIELS and PARKER, JJ. PARKER, J. This action was brought to recover damages sustained by the widow and next of kin of John Dougan, 1872.] OF THE STATE OF NEW YORK. 431 Dougan v. The Champlain Transportation Co. deceased, in consequence of the death of the said John Dou- gan, caused, as alleged, by the negligence of the defendant. Dougan was, on the 15th day of November, 1869, a passen- ger on the steamboat " United States," owned and run by the defendant on Lake Champlain. He took the boat at Port Henry for Burlington, Yt., pay- ing his fare to that place. The " United States " was at the time of the accident, and had been for several years, one of a line of passenger boats known as " The Champlain Trans- portation Company's Line," plying between Plattsburgh and "Whitehall, on the navigable waters of Lake Champlain, touching at intermediate landings in the States of New York and Vermont, and among them at Port Henry and Essex in New York, and at Burlington in Vermont, and making in all, in both States, eight landings between Burlington and Whitehall. She is constructed with an open weather deck forward, sloping slightly from the center to the bulwarks, and from thirty to forty feet wide from gangway to gangway. This deck has bulwarks of boards or plank on each side three or four feet high to the stern, and a gangway on each side eight or nine feet wide through which passengers and freight pass on and off, and which are closed only by two cross bars to each, hinging on the bulwarks at the ends, and of the same height as the bulwarks, and folding together upon an upright stanchion on center piece attached firmly to the deck. This open deck is used by the crew in rough weather as a runway for what is called the " trim box," which is filled with chains and arranged on trucks, so that it may be rolled from side to side as occasion requires in order to keep the boat trim. This deck is also used for horses and freight of different kinds, but has no seats or other accommodations for passengers, although passengers are not forbidden to go there, the accommodations for passengers being in the recess aft the shaft, and in the saloon upon the upper deck. Just back of the forward deck are " weather doors " on each side, which are kept open or shut according to the weather, 432 CASES IN THE SUPREME COURT [June, Dougan . The Champlain Transportation Co. and through which passengers enter the inclosed portion of the boat. Inside of the weather doors, on the left-hand side of the boat, is a water closet for passengers, having a sign on the door indicating its purpose ; and on each side of the boat, outside the weather doors, opening from the deck above described, is another water closet, which has no sign to indi- cate it, and is designed for the use of the crew. The boat was duly enrolled, licensed and inspected, and was staunch and seaworthy. After the boat left Essex, on the way to Burlington, the deceased, who had been standing inside the " weather doors," went out on the forward deck, saying he must go to the water closet. As he went through the doors, which he opened, his hat blew off: he sprang for it, slipped upon the icy deck, fell upon his back and slid over- board, through the gangway, under the cross bars and was drowned. The time of day was between dusk and dark ; the wind was blowing to such a degree as to blow the water upon the deck, where it froze, making the deck slippery. Evidence was given on both sides to show in which State, New York or Vermont, the accident occurred, and the plain- tiff during the trial was suffered to amend his complaint, and add a count based upon the Vermont statute, authorizing a recovery by an administrator for damages on account of his intestate's death caused by wrong or negligence, to all of which defendants objected and duly excepted. At the close of the evidence, the defendant moved for a nonsuit on the ground : 1st. That this court has no jurisdiction of the action, because the transaction occurring on inter-State navigable waters, within admiralty jurisdiction, the jurisdiction of those courts is exclusive ; and because the accident having occurred out of the State, no right of action accrues under the statute of this State. 2d. That there is no evidence of negligence on the part of the defendant. 3d. That the proof establishes that there was contributory- negligence on the part of the deceased. 1872.] OF THE STATE OF NEW YORK. 483 Dougan v. The Champlain Transportation Co. The court denied the motion and the defendant excepted. The cause was submitted to the jury under a charge to which no exception was taken. The jury found, specially, that the boat was in the waters of the State of New York when Dougan was lost overboard, and rendered a verdict in favor of the plaintiff for $3,000. A motion was made by the defendant for a new trial upon the minutes, which was denied. The defendant appeals from the judgment entered upon the verdict, and from the order denying a new trial. In regard to the question of the jurisdiction of this court in the case, I think the decision was right upon both branches of that question ; that is, that it is not a case within the exclu- sive jurisdiction of the courts of admiralty, nor one not cog- nizable by the courts of this State by reason of the cause of action arising out of the State. As to the latter point, the verdict of the jury, that the boat was in the waters of this State when Dougan was lost overboard, is decisive. Upon the question of its being a marine tort, therefore a case for admiralty jurisdiction merely, it is only necessary to examine the acts of congress on the subject, to see that the case is within the concurrent jurisdiction of the common-law courts as well. By the ninth section of the " Act to establish the judicial courts of the United States," approved September 24th, 1789, it is provided that " the district courts shall * * * have exclusive original cognizance of all civil- causes of admiralty and maritime jurisdiction, * * * saving to suitors in all cases the right of common-law remedy, where the common law is competent to give it." By the " Act extending the jurisdiction of the district courts to certain cases upon the lakes and navigable rivers connect- ing the sarrfe," approved February 26, 1845, there is the game saving to suitors of " the right of a concurrent remedy at the common law, where it is competent to give it, and any concurrent remedy which may be given by the State laws LANSING VOL. VI. 55 434 CASES IN THE SUPREME COURT [Jtine, Dougan v. The Champlain Transportation Co. where such steamer or other vessel is employed in such busi- ness of commerce and navigation." Granting the contract, by which deceased was to be trans- ported from Port Henry to Burlington, to be a marine con- tract, and the negligence (if any) by which he was lost overboard a marine tort, cognizable by the admiralty courts, still, although the cause of action is not one recognized by the common law, but a mere statutory one, the common law furnishes a competent remedy, and such remedy, within the meaning of the act, is pursued in this action; for, I take it, "the intent of the act is to save the remedy or right of action in those courts which proceed according to the com- mon law as distinguished from the course of admiralty," as is held in Chase, Administrator, v. The American Steamboat Co. ; MS. opinion of POTTER, J., in the Supreme Court of Rhode Island. Hence, under the act of 1789, the admiralty jurisdiction in this case is not exclusive of the common-law courts or looking particularly at the statute under which this action was brought (Laws of 1847, chap. 450, and Laws of 1849, chap. 256); the same may be stated in the language of RAPALLO, J., in Brookman v. Ilamill (48 N. Y. R., 554, 558, 559) as follows : " There is another class of cases in which the State laws are operative, but for a different reason, viz. : Claims against vessels navigating the lakes and rivers con- necting therewith. The jurisdiction of the States over these cases is protected by the act of congress of February 26, 1845, which expressly secures to suitors not only their concurrent remedies at common law, but also any concurrent remedy which may be given them ly the State laws where the vessel is employed" In the present case, the State laws not only give the right of action, but provide for the bringing of an action in the State courts, of course, so that actions of this nature are clearly within that provision of the act of 1845 which secures to parties the right to bring them in the courts of the State where the vessel is employed. The case of Chase, Admr., v. American Steamboat Co. 1872.] OF THE STATE OF NEW YORK, 435 Dougan v. The Champlain Transportation Co. (supra) was an action brought in the Supreme Court of Rhode Island to recover damages for the death of the plain- tiff's intestate, caused by a collision in Narraganset bay, the action being brought under a statute of that State, similar to the one under which the action in the case at bar is brought, and it was held that the State court had jurisdiction. The next ground on which a nonsuit was claimed was, that there was no evidence of negligence on the part of the defendant. The only complaint against the defendant is, that it left the gangway, where the deceased fell overboard, protected only by a bar across it, from three to four feet above the deck. No doubt, if it had been protected also by a bar of sufficient width at the bottom, the accident would have been prevented. "Was the omission of such additional guard in the construc- tion of the boat such negligence on the part of the defendant as to make it liable in the present case ? It is plain that the forward deck was not a part of the ves- sel intended for passengers, and that this was evident to the deceased. Here were no seats or other accommodations for passengers, but ample and safe accommodations were pro-, vided in the after part of the boat and in the saloon upon the upper deck. True, passengers were not forbidden to go upon this deck, and were suffered to be there ; but it was not a place to which they were invited, or where they were expected by the defendants to remain. So far as passengers are concerned, it was but the entrance to the boat. It was constructed with reference to its appro- priate uses, and not at all in the contemplation of its being used as a place for passengers to loiter or remain. All this clearly appears from the evidence. Under such circumstances, I do not think the defendant can be charged with neglect of duty to its passengers for failing so to hedge up the way that they, being unnecessarily upon this deck, could not slide under the bar through this gangway. And the passengers who left the inclosed and protected portions of the boat, intended foi 436 CASES IN THE SUPREME COURT [June, Doligan 0. The Champlain Transportation Co. them, and ventured upon this part, less protected, and not intended for them, must be deemed to do so at their peril. If passengers, not being forbidden to do so, should occa- sionally mount the wheel-houses and bulwarks, and one should happen to fall overboard, it would scarcely be claimed that the defendant was in fault for not having so protected those parts of the boat as to render them secure against such accidents. The extreme degree of care required of defendant, as a carrier of passengers, for their security against falling over- board, did not require provision against such accidents in parts of the boat not intended for passengers, and where they are not expected to be, and I think defendant is not chargeable with negligence in this case for failing to pro- vide another bar across the gangway in question. As well might a railroad company be deemed negligent for omitting to fence in its platform, so as to prevent passengers who should prefer to ride there from falling off. The same answer applies in each case. The place is not intended for passengers to ride in, and the carrier of passengers is, there- fore, not required so to fence it in. (See Spooner v. Brook- lyn City Railroad Co., 31 Barb., 419.) Upon the question of the negligence of the deceased, it follows, from the view above taken, that he must be held negligent in exposing him- self to the danger which the occurrence shows that he encoun- tered in entering upon the forward deck at the time and in the manner in which he did. He voluntarily and unneces- sarily incurred the peril. The error, if it was so, in admitting proof of the Vermont statute and amending the complaint, did no harm, as the jury found the locus in quo of the accident in this State. The suggestion that, by the ruling complained of, defend- ant was led not to give farther evidence as to the place of the occurrence of the accident, is answered by the fact that the ruling was after evidence on both sides, on the question of the place, had been given, and defendant had rested. All the evidence it deemed necessary on that question was, there- fore, given by it. 1872.] OF THE STATE OF NEW YORK. 437 Perkins v. Giles. I discover no other error than those above pointed out. The defendant was entitled to a nonsuit upon both the second and third grounds, upon which it was moved for. The judgment and order appealed from must be reversed and a new trial granted, with costs to abide the event. HAMILTON PERKINS, Appellant, v. WILLIAM GILES and CHAELES E. TRACT, Respondents. (GENERAL TERM, FOURTH DEPABTMENT, JANUABY, 1872.) By an award made upon submission to arbitration, by plaintiff and defend- ant, the defendant was bound to make certain excavations provided the plaintiff contributed one-third of the expense of so doing. It appeared that defendant made, after the award, a portion of the required excava- tions and called on plaintiff to contribute one-third of the expense, and plaintiff refused to do so. That defendant then offered to make all the excavations which plaintiff should require to be made if he would pay one-third of the expense, and plaintiff refused to pay anything on account of such excavations, and notified defendant tbat if he made them he would never pay any portion of the expense. Eeld, that the things to be done by the respective parties under the award were in the nature of concurrent acts or covenants, and that under the circumstances the defendant was justified in refusing further to perform the award, and an action for non-performance could not be maintained. ACTION for damages for neglect to perform an award. The facts sufficiently appear in the opinion. Cox & Awry, for the plaintiff. D. Wright, for the defendants. Present MULLIN, P. J. ; JOHNSON and TALOOTT, JJ. By the Court JOHNSON, J. The action was brought to recover damages occasioned by the neglect and refusal of the defendants to perform an award in favor of the plaintiff, upon a submission to arbitration between the parties. The complaint sets out the award in substance, and alleges that the defendants had neglected and refused to perform 438 CASES IN THE SUPREME COURT [Jan., Perkins v. Giles. according to the terms and conditions thereof in certain par- ticulars, to his injury and damage, etc. The complaint con- tains no averment that the plaintiff had performed the award on his part, or that he had offered or was willing so to per- form. The question on which the case turns arise upon the charge of the judge to the jury. The exception to that part of the charge in which construc- tion is given to the award, is not well taken. The judge, I think, gave the true construction to the award, according not only to its terms, but to the intention of the arbitrator. The plaintiff claims that, by the terms and true meaning of the award, the defendants were bound to remove all the sediment and deposits (including a small island) which had accumulated in the reservoirs, pond and race-way, at the time of the submission, so as to restore the whole to their original condition and capacity. The judge held and charged that they were only bound under the award to clear out so much of the sediment and deposits in the race-way, reser- voirs and pond, which had accumulated there at the time of the award, as obstructed and impeded the due flow of water through that water-way. That they were not required to excavate for the purpose of keeping back and treasuring a supply of water. This claim of the plaintiff is expressly negatived by the arbitrator in his award, for he says that the result of the filling up of the pond, race and reservoirs with sediment did not enter into the minds of the original parties, and was not contemplated by them in making the deed, but was one of the inevitable accidents refer- red to in the deed as an exception to the obligations of the defendants. Whether the arbitrator gave the right construc- tion to the covenants and obligations in the deed, is not the question. The question is, how did he award and determine in regard to them ? On this question, I think, the judge was clearly right. The other exception, to the other portion of the charge, is equally untenable. There was evidence tending to show that the defendants went on after the award and made a portion 1872.] OF THE STATE OF NEW YORK. 439 Perkins v. Giles. of the excavations required by the award, and called on the plaintiff to contribute one-third of the expense thereof, as required of him by the award, and that the plaintiff refused so to contribute; that the defendants then proposed to go on and make all the excavations and removals of the deposits which the plaintiff should desire to have made, in pursuance of the award, if he would pay one-third of the expense, according to such award, and that the plaintiff entirely refused to pay any- thing on account of such excavations, and gave the defendant notice that if they made them he would never pay any portion of the expense. The judge charged the jury that if these facts were established by the evidence to their satisfaction, the plaintiff could not maintain the action. To this the plaintiff 's counsel excepted. This was clearly right. The things to be done by the respective parties under the award were in the nature of con- current acts, or concurring covenants. The defendants were the first to perform, but were entitled to one- third of the cost of performance immediately thereupon. The things to be done by the respective parties are not in the nature of separate and independent covenants. In such a case it has been held, in an action upon an award, upon demurrer, that in order to make out a cause of action, it was incumbent on the plaintiff to aver performance on his part, or an offer to perform. (Huy v. Brown, 12 Wend., 591.) And so it seems it is a good answer by way of defence, and in excuse of performance of the award on which the action is brought, that the defendant tendered performance at the day, and has always been ready to perform, and that the plaintiff discharged him from the performance, or hindered him from performing, or had himself omitted to perform a condition precedent. (Watson on Arb. & Aw., 368, 869.) Here, if, as the jury may have found, the defendants offered to perform, and the plaintiff, after part performance by them, not only refused to pay his portion for such part, but gave them notice that if they went on and performed he would not perform or fulfill on his part, their neglect to perform fur- 440 CASES IN THE SUPREME COURT [Jan., Stone v. Frost. ther was justifiable or excusable, and the action for non-per- formance cannot be maintained. The excavations were to be made for the plaintiff's benefit, and if he gave notice that he did not wish to have the labor performed and would not con- tribute to the expense according to the award in case it should be so performed, he may be justly held to have prevented per- formance, and to be estopped from claiming that the defend- ants have wrongfully failed to perform to his injury. The case was properly disposed of at the Circuit, and a new trial should be denied, and judgment ordered for the defend- ants on the verdict. BENJAMIN STONE, Respondent, v. ELI C. FKOST, Appellant. (GENERAL TERM, FOURTH DEPARTMENT, JANUARY, 1872.) In an action to recover back money paid upon a contract between plain- tiff and defendant for the sale and delivery of grape roots, on the ground that the contract was rescinded, the roots having turned out dead and worthless, it seems that evidence that an agent of the defendant, who made the contract and delivered the roots, requested the agent of the plaintiff, who received them, not to undo the wrappers in which they were inclosed, as the former was about to do for the purpose of examin- ing them, as it was a cold night and he would not be responsible if they turned out not to be right, was admissible as a part of the res gestce of the delivery and acceptance, and showing a good reason for the accept- ance at the time and payment of the purchase-price, without examina- tion in respect to the condition of the roots. The fact as to whether a root or other vegetable substance is dead or not is matter of such common observation and experience that it does not require an expert to testify in regard to it, and the same may be said in regard to the question whether a dead grape root has any marketable or other value. The roots being dead when delivered and of no value whatever, no neces- sity existed, it se,ems, for returning or offering to return them before bringing the action. The plaintiff wrote to one who had acted as defendant's agent, in making the contract and delivering the roots, that the roots were dead and worthless, and requested him to come and take them away and pay back the money, or if he would not to lay the letter before defendant. Shortly 1872.] OF THE STATE OF NEW YORK. 441 Stone v. Frost. afterward defendant answered the letter acknowledging its receipt from *his agent, and refused to comply with the request, insisting that the roots were in good condition. Held, sufficient evidence from which the jury might have found a notice to defendant that the vines were worthless, and an offer to return them. Held, also, as matter of law, that this letter and reply constituted sufficient notice to defendant, of the worthlessness of the roots and ofler to return them, to sustain the action. IN February, 1866, the plaintiff and Cyrus E. Herrick each and at the same time purchased of the defendant 500 Catawba grape roots for thirty dollars, to be delivered at Penn Yan depot the next spring, payable on delivery. The roots were delivered and paid for both at the same time and place, about the 16th of April following. In each case the contracts were made by one Jones, as the agent of the defend- ant. Jones delivered the roots and received the pay for them. At the time of delivery they were tied up in small bundles of fifty each ; the small bundles were tied up in one large bundle, each man's bundle by itself, with moss and grass wrapped around the larger bundle for protection ; and while in this condition the roots could not be seen or examined and were not then examined, for the reason that Jones objected to it. On the 25th day of April, Herrick and Stone united in a joint letter to Jones, notifying him that the roots were dead and worthless, and requesting him to take them away and do what was right about it, but if he would not, they requested him to lay the letter before the defendant. Three days after, and on the 28th of April, the defendant acknowledged the receipt of the letter to Mr. Jones, and answered it as stated in the opinion. In June following, Stone went to see Frost in relation to these roots, to!d him they were worthless and good for noth- ing, and demanded back the money paid for them, which waa refused. In November, Stone and Herrick went to see Frost, told him again the roots were worthless, and demanded back their money. LA.XSIXG VOL. VI. f>6 442 CASES IN THE SUPREME COURT [Jan Stone v. Frost. Frost insisted that the roots were all right when delivered, and refused to pay back the money. Afterward, and before the commencement of this action, Herrick assigned his claim to the plaintiff, and this action was brought to recover back the money paid on both contracts. The case was tried upon the issue made between the par- ties and by the pleadings, namely : Whether the roots were in good condition when delivered, or were dead and utterly worthless and of no value. At the close of the plaintiff 's testimony, the defendant's counsel moved for a nonsuit upon the following grounds, among others : 1st. There was no return or offer to return the vines in question to the defendant. 2d. The letter to Jones is insufficient to constitute a tender back of the vines to the defendant. 3d. The defendant was not bound by the offer contained in the letter to Jones. The motion was denied and defendant excepted. Exceptions were taken to certain rulings of the court in the admission of evidence, and to portions of the judge's charge which appear sufficiently in the opinion. After hear- ing the defendant's testimony, the cause was submitted to the jury under the charge of the judge, who found a verdict for the plaintiff for $72.84. An application was made by the defendant for a new trial on a case at a Special Term held at Canandaigua on the 24th day of April, 1871, which was denied. Judgment was entered on the 6th day of April, 1871, against the defendant for $467.88 damages and costs, and the defendant appealed from the order of the Special Term and from the judgment. John J. Van Allen, for the appellant. Morris Brown, for the respondent. Present MULLIN P. J. ; JOHNSON and TALCOTT, JJ. By the Court JOHNSON, J. This is an appeal from an order at Special Term denying defendant's motion for a new trial 1872.] OF THE STATE OF NEW YORK. 443 Stone 0. Frost. on a case and exceptions. The action was to recover -back money paid by the plaintiff, on a contract between him and the defendant, on the ground that the same was rescinded. The first point made by the defendant's counsel is that the court erred in allowing the plaintiff to prove the declarations and directions given by the defendant's agent at the tune the roots were delivered upon the contract. Jones was the defendant's agent, who made the contract for the sale and delivery of the grape roots and who delivered them on the contract. At the time of the delivery the roots were done up in bundles and covered with wrappers. The plaintiff's agent, to whom they were delivered, was about to undo the wrappers to examine the roots, when the defendant's agent requested plaintiff's agent not to do so, as it was a cold, windy night ; and if they were opened he would not be responsible if they turned out not to be right, and directed plaintiff's agent what to do with them, and it should be made all right if the roots were not right. I am of the opinion that this evidence was competent as part of the transaction of delivery and acceptance ; and espe- cially so, as the defendant claimed at the trial, and now claims, that the case is within the rule in Reed v. Randall (29 N. Y., 358), and the delivery and acceptance operated as a complete and perfect performance of the executory agree- ment on his part. The directions in regard to the opening and examination at the time were part of the res yestce of the delivery and acceptance. It shows a good reason for the acceptance at the time, and payment of the purchase-price, without exami- nation in respect to the condition of the roots. But even if it was error to admit the evidence, it could not have injured the defendant, as it was, in effect, stricken out of the case, and the jury were directed to disregard it as wholly immate- rial, and instructed that the plaintiff could not recover unless they should find from the evidence that the roots were entirely dead and worthless at the time they were delivered by the defendant and received by the plaintiff. Taken alto 444 CASES IN THE SUPREME COURT [Jan., Stone . Frost. gether, it is plainly to be seen that the first ruling, if errone- ous, could not have prejudiced the defendant's case. (Man- deville v. Guernsey, 51 Barb., 99.) The exception to the testimony of one or two witnesses, showing that the roots were dead when examined by them, is not well taken. The objection is that they were not quali- fied to testify on the subject. The fact as to whether a root or other vegetable substance is dead or not is matter of such common observation and experience that it does not require an expert to testify in regard to it. The same may be said in regard to the question whether a dead grape root has any marketable or other value. On the question what had caused the killing of the roots, the evidence was all given by persons skilled in that matter, and was properly received. This evi- dence was pertinent' and material on the question whether the roots were in fact dead when delivered by the defendant's agent, as there was evidence tending to show that they could not have been injured from that cause after they were delivered. If there was evidence sufficient to go to the jury on the question whether the roots were dead and entirely worthless when delivered, as there clearly was, it was a proper case to submit to a jury. The defendant's counsel contends that unless the roots were returned or offered to be returned to the defendant the action cannot be maintained. This depends upon the question whether the roots were of any value whatever. The jury have found by their verdict that the roots were dead when delivered, and of no value whatever. They must have so found, because they were expressly charged that unless they did find in that way their verdict must be for the defendant. If they could have been of no value to the defendant had they been returned, there was no necessity of returning or offering to return before bringing the action. The idea on which the obligation to return, before action is founded, is that the defendant should be placed in as favora- ble condition as he was before delivery. If the thing delivered 1872.] OF THE STATE OF NEW YORK. 445 Stone v. Frost. can be of no value whatever to any one, the defendant is in as favorable a condition as he was when he delivered it, with- out any return or offer to return. It can scarcely be con- ceived that a dead grape root can be of any value to any one. But however this may be, the question as to whether there should have been a return, or an offer to return, was only raised on the motion for a nonsuit at the close of -the plain- tiff's evidence ; and there was then evidence from which the jury might well have found, if it was a question of fact, that the plaintiff had given notice to the defendant that the vines were dead and worthless, and requested him to come and take them away and pay back the money. It is true that the plaintiff's letter, containing this notice and request, was addressed to the defendant's agent, Jones, who made the contract and delivered the roots. But this letter, three days after it was dated and sent, was answered by the defendant in person, in which he acknow- ledges having received their letter from his agent, and refuses in substance to comply with their request, and insists that the roots were in good condition when delivered. 1 am of the opinion, however, that, as matter of law, this was a suffi- cient offer and notice to the defendant under all the circum- stances. He certainly accepted it as such, and acted upon it, and can scarcely now be heard to say that the offer and notice were to his agent, only and not to himself. The motion for a nonsuit was therefore properly denied on that ground. The question was not raised by the charge, and does not appear again in the case. The court charged the jury that if the roots, when delivered, were dead and entirely worthless, the plaintiffs were entitled to their verdict ; otherwise their verdict should be for the defendant. To this there was no exception by the defendant's counsel, and no request to charge otherwise. The defendant's counsel did request the court to charge that, upon the whole evidence, the plaintiff was not entitled to recover, and excepted to the refusal so to charge ; but that 446 CASES IN THE SUPREME COURT [Nov., Fabbri v. The Mercantile Mutual Insurance Co. request and exception does not raise any question in particu- lar, but goes to the entire merits of the action. There is nothing in the exception to the refusal to charge that the plaintiff could not recover that portion of the demand assigned to him by Herrick. It was in fact assigned, as appeared by the written assignment, which was undisputed ; and it was quite immaterial to the defendant what the con- sideration was which passed between the parties thereto. The action here is not on the contract to recover damages as for a breach, but is founded upon a rescission of the con- tract, and is to recover back the money paid. Upon the facts found by the jury the plaintiff had the clear right to rescind ; and this right he exercised within a reasona- ble, time, under all the circumstances; and the action to recover back the money paid is well brought. The motion for a new trial was, therefore, properly denied, and the judgment and order must be affirmed. EGISTO P. FABBRI et al., Respondents, v. THE MERCANTILE MUTUAL INSURANCE COMPANY, Appellant. (GENERAL TEEM, FIBST DEPARTMENT, NOVEMBER, 1872.) In an action against a marine insurance company, plaintiffs claimed a recovery by virtue of a written application by plaintiffs to defendant ' ' for not less than $10,000," marked " binding" by the company. Held, that in order to establish a contract between the parties, evidence was admissi- ble to show that a custom existed between the plaintiffs and several insurance companies, including the defendant, in cases where the value of property upon which insurance was desired was not known at the time of the application, by which custom applications were made like the one mentioned, to the various companies, for insurances in sums in the aggregate amounting to what plaintiffs supposed might be the actual value of the property at risk, and that such applications were accepted and made binding for such indefinite sums, with the under- standing that when the value of the property at risk should be ascer- tained, the amount so insured by the respective companies should be declared and apportioned so that the amounts actually insured should 1872.] OF THE STATE OF NEW YORK. 447 Fabbri v. The Mercantile Mutual Insurance Co. bear the same proportion to the property actually at risk as they bore to the aggregate of all the indefinite insurances thereon ; and that after the amount had been so ascertained and fixed, a policy in the form then in use was issued by the respective companies for the precise sum so fixed and adjusted; and that in this case the plaintiffs, not knowing the actual value of the property, had made insurances in like manner with certain of the other companies upon the property, in various sums. Held, also, that the contract created by the acceptance of the application, as explained by evidence of the practice mentioned, would render the defendant liable for a proportionate amount of the loss to the amount insured, notwithstanding a clause contained in the policies used by defendant, to the effect that if the insured made any other insurance upon the property, prior in date to the policy, then the defendant should be answerable only for so much as the amount of such prior insurance might be deficient toward fully covering the property insured, and there were other prior insurances effected by the other companies suffi- cient to cover the actual loss. THIS is an appeal from a judgment entered on the report of a referee, which directs that the defendant execute and deliver to the plaintiffs a policy for $3,688.72, gold, and that the plaintiifs recover under it that sum, with interest and costs. The following facts appeared upon the trial, aud were found by the referee : 1. That before and at the several times mentioned in the pleadings, the plaintiffs were copartners in trade and com- merce, carrying on such business in the city of New York, under the firm name of Fabbri & Chauncey, and that the defendants were, and still are, a corporation created by and existing under the laws of the State of New York, and carry- ing on the business of marine insurance in the said city of New York. 2. That previous to, and on the 16th of February, 1867, the ship Flora McDonald, then owned by the plaintiffs, was and had been for some time previous lying at the port of Valpa- raiso, on the west coast of South America, taking in a cargo belonging to the plaintiffs, and destined for the port of New York, where it was to be delivered to the plaintiffs ; but the quantity and value thereof shipped, and expected to be shipped, was not known to the plaintiffs until the time in that behalf hereafter stated. 448 CASES IN THE SUPREME COURT [Nov., Fabbri v. The Mercantile Mutual Insurance Co. 3. That for some time previous to the last mentioned date, and previous to and at the time of effecting the insurances upon the aforesaid cargo, as hereinafter stated, there had existed, and was then existing, a practice and course of deal- ings between the plaintiffs, the Great Western Insurance Company, the Sun Mutual Insurance Company, the Orient Insurance Company, the Mercantile Mutual Insurance Com- pany (the defendants above named), and several of the other insurance companies hereafter named, in effecting and making marine insurance upon property belonging to the plaintiffs, when the precise value thereof was not known at the time the application for insurance thereon was made, by which prac- tice and course of dealing the plaintiffs were accustomed to make a written application to the said companies for insu- rance, in different sums, amounting in the aggregate to what they supposed might be the value of the property which would be at risk ; and it was stated in the applications that insurance was wanted upon the said property for " about," or " not exceeding," or " not to exceed," the sum stated therein, and such applications were accepted and made bind- ing for such indefinite sums, with the understanding that when the value of the property at risk should be ascertained, the amount so insured should be ascertained and apportioned, so that the amouut insured by each should bear the same pro- portion to the property actually at risk as it bore to the aggre- gate of all the indefinite insurances thereon ; and that after the amount had been so ascertained and fixed, a policy, in the form then in use, was issued by the respective underwriters for the precise sum so ascertained and adjusted, as aforesaid. 4. That, having heard that their aforesaid vessel was, at the date above mentioned, at Valparaiso, engaged in taking in a cargo of wool for them (without knowing what the value thereof would be, but supposing and assuming that it might amount to about $156,000, gold), the plaintiffs, under and in pursuance of the aforesaid practice and course of dealing, on the 5th of March, 1867, made a written application for insu- rance upon the said property to the Great Western Insurance 1872.] OF THE STATE OF NEW YORK. 449 Fabbri v. The Mercantile Mutual Insurance Co. Company for " about $40,000, gold ;" to the Sun Mutual Insu- rance Company for " not to exceed $10,000, gold;" to the Orient Insurance Company, for " not to exceed $20,000, gold ;" to the Mercantile Mutual Insurance Company (the defendants herein), for "not exceeding $10,000, gold," in the order of time above stated, and that each of the said companies accepted such applications and made the insurance binding. The following is a copy of such aprlication so made to and accepted by defendant : " ROBINSON AND Cox, GENERAL INSURANCE BROKERS, No. 52 William street, New York. Insurance is wanted by Fabbri & Chauncey, for account of whom it may concern, loss payable to them or order : On wool, val. @ 18c per lb., until otherwise agreed. Oreste, " invoice cost and 15 p. c. added. Privileged to load not exceeding 25 p. c. over registered ton- nage in Per ship Flora McDonald, At and from port or ports on W. C. S. Am. to New York. Warranted by the assured free from claim for loss or dam- age arising from seizure, detention or the consequences of any other hostile act of the government or people of any seceding or revolting State of this Union, For not exceeding $10,000, in gold Premium 3 pr. ct. less 15 p. c., to return p. c. if not load- ing over registered tonnage in ores, and no loss claimed. Master's name = Where built When built Tonnage When last coppered When last inspected Present condition Rate LANSING VOL. VI. 57 450 CASES IN THE SUPREME COURT [Nov., Fabbri . The Mercantile Mutual Insurance Co. NEW YOKK, March 5, 1867. Warranted to sail not sailed last dates. Binding. (Signed.) C. N. V., President. R. & COX, Applicants. (Signed.) LETHBRIDGE, Payable in gold. For F. & C." 5. That on the 6th of March, 1867, being still ignorant of the probable value of such cargo, the plaintiffs, in like manner, under the practice aforesaid, made written applications for insurance thereon to the International Insurance Company, for "not exceeding $5,000, gold;" to the Phoenix Insurance Company, for " not to exceed $10,000, gold ;" to the United States Lloyds, for " not exceeding $5,000, gold ;" to the Man- hattan Insurance Company, for " not exceeding $5,000, gold ;" each of which applications were accepted and made binding by the said last mentioned companies. 6. That the plaintiffs, being still ignorant of the shipment, afterward applied for insurance thereon to the Insurance Company of North America, for " not to exceed $10,000, gold ;" to the Delaware Mutual Insurance Company, for " about, not to exceed $10,000, gold ;" to the Phoenix Insu- rance Company of Philadelphia, for " about $2,500, gold ;" to the Insurance Company of the State of Pennsylvania, for " not to exceed $5,000, gold ;" to the Pacific Insurance Com- pany of San Francisco, for " not exceeding $20,000, gold ;" each of which last mentioned applications was accepted and made binding. 7. That the insurances so effected and made binding, as above stated, amounted in the aggregate to $152,500, gold. 8. That on the aforesaid 16th day of February, 1867, before either of the above mentioned insurances had been effected, the aforesaid vessel, then lying at Valparaiso, as above stated, was destroyed by fire, at which time she had only received a portion of the cargo intended to be shipped, that is to say, she then and there had received on board only 692 bales of 1872.] OF THE STATE OF NEW YORK. 451 Fabbri c. The Mercantile Mutual Insurance Co. white wool and 40 bales of black wool, all of which was destroyed by the said fire and totally lost, and that at the time of such loss the same amounted in value to the sum of $56,253 gold, of the coinage of the United States. 9. That the plaintiffs were entirely ignorant of such loss at the time they effected the several insurances above men- tioned, and did not hear of the same until afterward, and somewhere about the 3d of April, 1867, at which, time they also ascertained the value of the cargo at risk, and covered by the aforesaid insurances, to be the sum in that behalf above stated. 10. That on -the said 3d day of April, having ascertained the value of the property at risk at the time of the loss aforesaid, the plaintiffs thereupon declared and made known to the defendants and to the other insurers thereof, according to their aforesaid course of dealing, the value of the property at risk at the time of such loss, and apportioned the same among the defendants and the other insurers thereof according to the practice aforesaid, that the sum so apportioned to and for which the defendants became insurers, was $3,688.72. 11. That the blank policy of insurance annexed to the com- plaint is the form of policies then in use by the defendants upon similar applications, and the plaintiffs then and there demanded from the defendants a policy, according to the application in all respects, except as to the sum insured, which was to be $3,688.72 instead of $10,000 as originally stated in the application, which the defendants then and there refused to give. 12. That the plaintiffs then and there made to the defend- ants due proof of loss and of their interest in the property insured, and performed the conditions of insurance on their part to be performed, except the pre-payinent of the premium, which the defendant had waived on making the application for insurance. 13. That the aggregate of the several insurances upon the said cargo, made prior to that of the defendants, as adjusted and fixed under the practice and course of dealing aforesaid, 452 CASES IN THE SUPREME COURT [Nor.,. Fabbri n. The Mercantile Mutual Insurance Co. did not cover the plaintiffs' loss, but left a balance due there- for exceeding the sum of $3,688.72, the amount covered by the defendants' policy, so adjusted and fixed as aforesaid, which, by the terms of the policy so in use as aforesaid, became due and payable on the 3d May, 1867. 14. That the premium due and payable by the plaintiffs to the defendants, upon and for the said insurance, amounts to the sum of $115.03 gold, for which the defendants are entitled to credit, and which being deducted from the loss above men- tioned leaves a balance of $3,573.69 gold, which with interest thereon from 3d May, 1867, to the date of this report, amounts to the sum of $4,584.75. The referee decided, as matter of law, that the plaintiffs are entitled to have a policy from the defendants duly exe- cuted in the form of that annexed to the complaint, filled up, according to the application of the plaintiffs, for the amount so adjusted as above mentioned, and to a judgment against the said defendants for the last above mentioned sum of $4,584.75 in gold coined dollars and parts of dollars of the coinage of the United States. The defendant excepted to so much of the second finding of fact, above set forth, as found that the quantity and value of the cargo therein referred to expected to be shipped as therein stated, was not known to the plaintiffs until the time in that behalf thereafter stated. Also to the third finding generally, and that there was not evidence sufficient to support it. Also to the tenth and thirteenth findings, and to the referee's conclusions of law, and each and every of them. Exception was also taken by defendant, on the trial, to the admission of evidence to prove the practice of the various companies, as stated in the opinion. The blank policy of insurance above referred to, as annexed to the complaint, contained the following clauses : " Provided always, and it is hereby further agreed : That if the said assured shall have made any other assurance upon the premises aforesaid, prior in date to this policy, then the 1872.] OF THE STATE OF NEW YORK. 453 Fabbri v. The Mercantile Mutual Insurance Co. said Mercantile Mutual Insurance Company shall be answer- able only for so much as the amount of such prior assurance may be deficient toward fully covering the premises hereby assured ; and the said Mercantile Mutual Insurance Company shall return the premium upon so much of the sum by them assured as they shall be by such prior assurance exonerated from." George W. Soren, for the respondents. Townsend Scudder, for the appellants. Present LEONARD and GILBERT, JJ. By the Court GILBERT, J. The application for insurance to defendants was for a sum not exceeding $10,000 in gold. The defendants signified their acceptance of the application by writing upon it " binding." About the same time that this application was made, applications were made to other insurance companies for insurance upon the same property, which applications were accepted in a similar way. The aggregate amount of insurance sought by the plaintiff amounted to $152,000, and was to cover a cargo then in pro- cess of shipment. In neither case was the amount of risk which either company took definitely fixed. It was proved upon the trial, and the referee has found that there had existed, and was then existing, between the plaintiffs and the several insurance companies referred to, including the defendant, a practice and course of dealing in effecting marine insurance upon property belonging to the plaintiffs, when the precise value thereof was not known at the time the application for insurance thereon was made, by which the plaintiffs were accustomed to make written applications, like those made in the instances referred to, being in different sums, and amount- ing in the aggregate to what the plaintiffs supposed might be the value of the property which would be at the risk, and such applications were accepted and made binding for such indefi- 454 CASES IN THE SUPREME COURT [Nor., Fabbri v. The Mercantile Mutual Insurance Co. nite sums, with the understanding that when the value of the property at risk should be ascertained, the amount so insured should be declared and apportioned so that the amount insured by each should bear the same proportion to the property actu- ally at risk as it bore to the aggregate of all the indefinite insurances thereon, and that after the amount had been so ascertained and fixed, a policy in the form then in use was issued by the respective underwriters for the precise sum so ascertained and adjusted as aforesaid. It also appears, and the referee has so found, that the value of the property intended to be insured was not known to the plaintiff at the time such applications were made. It is not disputed by the defendant that the contract created by the acceptance of the application, as explained by evidence of the practice men- tioned, would render the defendant liable for a proportionate amount of the loss in this case, notwithstanding the clause of prior insurance contained in the policies used by them, and such no doubt is the rule of law. But the defendant contends that evidence of the practice mentioned was inadmissible. We think otherwise. It is true the evidence did not prove any general usage, nor was it given for that purpose. It was given to show what w r as the actual contract between the parties to the action ; and we think within settled rules it was not only competent, but absolutely essential for that purpose. (Duer Ins., vol. 1, pp. 263 and 57 ; Bourne v. Gatliff, 11 Cl. & Fin., 45 ; Bliven v. N. E. Screw Co., 23 How., 421 ; Allen v. Merck. JBL, 22 "Wend., 215 ; Vansantvoord v. St. John, 7 Hill, 1 58.) The defendants' objection to the testimony of Hazen, even if well founded, would not warrant us in reversing the decision of the referee. There being sufficient evidence with- out his testimony to sustain the judgment, the error, if any, of t the referee in omitting that testimony was not injurious to the defendant. (People v. Gonsales, 35 N. Y., 59.) The judgment should be affirmed, with costs. 1872.] OF THE STATE OF NEW YORK. 455 Hackettstown Bank v. Rea. THE HACKETTSTOWN BANK, Respondent, v. GEORGE M. REA, Appellant. (GENERAL TERM, FIRST DEPARTMENT, NOVEMBER, 1872.) Where the maker and indorser of a note reside in New York, where it is payable, the note is not usurious because discounted in New Jersey for more than the legal rate of interest in New Jersey. The statute of New Jersey, limiting the rate of interest to six per cent, does not apply. Present INGRAHAM, P. J. ; LEONARD and LEARNED, JJ. LEARNED, J. This is an action of foreclosure. The defence is usury, consisting in this : that a note, dated and payable in New York, was discounted at seven per cent by the plaintiffs, a New Jersey bank, the rate of interest being six per cent in New Jersey ; and that the borrower paid the expressman seventy-five cents, being his proper charge, for bringing the money. Another defence is that the plaintiffs, a foreign corporation, kept an office in New York for the purpose of issuing money, &c. ; and, also, that they were interested in a fund employed for making discounts, &c., in New York, in violation of the statute against unauthorized banking. As to the second defence, the referee has found that the plaintiffs did not keep any office (except at Hackettstown) for the purpose of discounting, &c., and did not employ their effects and were not interested in a fund for such purposes (except at Hackettstown). This is a question of fact, and we think he found correctly. The case of Suydam v. Morris Canal Co. (5 Hill, 491, n., and 6 Hill, 217) shows that transactions like those in the present case are not necessarily violations of that act. It is not every loan made in this State by a foreign corporation which is prohibited ; and there is no ground upon the evi- dence to disturb the referee's finding. In the case of Jewell v. Wright (30 N. Y., 259) a note was 456 CASES IN THE SUPREME COURT [Nov., Hackettstown Bank v. Kea. made and dated in New York, and was payable here. It was first negotiated in Connecticut. The court held that, on the question of usury, the laws of this State applied. To the same effect is Culler v. Wright (22 N. Y., 4/T2). In this pre- sent case, therefore, where the maker and indorser of the notes lived in New York, and where the notes were drawn, dated and payable here, the laws of New York must govern as to the rate of interest. If drawn " with interest," the rate would have been seven per cent. As they were without interest the same rate of discount must be legal. We do not think, therefore, that the statute of New Jer- sey, limiting interest to six per cent, made the notes in ques- tion usurious and void, when discounted at that rate. The charter of the plaintiffs contains a clause that they shall not take more " than the legal rate of interest for the time being." This undoubtedly is but a clause put in for greater security. It does not alter the legal rate, or make that illegal which would otherwise be legal. Indeed, the expression "for the time being" seems to imply that there might be transactions of the bank in which interest might be taken lawfully at a rate greater than that usually authorized in the State. But, however that may be, we see no reason to give to that clause in the bank charter any other effect than that which would result from the general law of New Jersey on the subject of usury ; and, as appears by the cases cited above, that law does not render these notes usurious. The judgment entered on the report of the referee should be affirmed, with costs. INGRAIIAM and LEONARD, JJ., concurring. 1872.] OF THE STATE OF NEW YORK. 457 Arend v. The Liverpool, New York and Philadelphia Steamship Co. OTTO ABEND, Respondent, v. THE LIVERPOOL, NEW YOKK AND PHILADELPHIA STEAMSHIP COMPANY, Appellant. (GENERAL TERM, FIRST DEPARTMENT, NOVEMBER, 1872.) A cask of wine, shipped with defendants, was received by them in good order, and they undertook for a reward to deliver it at its destination, stipulating against liability by loss from leakage, damage from stowage, straining or other peril of the seas. The cask arrived in good condi- tion, but without any contents. In an action brought to recover for the loss, the defendants set up as a defence that the wine had leaked out, and also contested the alleged value. Held, that evidence of a stevedore as to his experience of the effect of heavy weather on fluids in casks during a sea voyage, and also as to the condition of the other casks containing fluids that came out of the ves- sel at the same time as this one, was properly excluded. Also that a motion for a nonsuit, on the ground that plaintiff had not shown that the government duties had been paid on the wine, and a cus- tom-house permit obtained to land it, was properly denied. Also, the cause of action having been assigned by the owner of the wine to plaintiff, that a question put to the assignee as a witness, as to the consideration of the assignment, was properly overruled. Also, that a question whether this wine did not often deteriorate coming to this country was properly excluded. A. custom-house officer, who kept an entry of an application for a permit to land this cask of wine, was asked what he found in his memorandum as to the valuation of this cask, Held, properly excluded, there being no evidence to connect the importer with the memorandum. A witness acquainted with custom-house business and regulations was asked to state under what circumstances and on what regulations free permits are given at the custom department. Held, properly excluded. Held, also, that the cask having been received in good order, the defend- ants were bound to show that the loss occurred within some clause of the bill of lading exempting them from liability ; and that proving that the ship had a tempestuous voyage, that the cargo was well stowed, and that the hatches were properly secured, &c., did not tend to shift the burden of proof. THIS was an appeal from a judgment entered in favor of the plaintiff, on the verdict of a jury, for $522.20, the value of a cask of wine. The material facts are stated in the opinion. LANSIKG VOL. VI. 58 458 CASES IN THE SUPREME COURT [Nov., Arend . The Liverpool, New York and Philadelphia Steamship Co. J. W. Gerard, Jr., for the appellants. Chas. Wehle and L. H. Rowan, for the respondents. Present LEONARD and GILBERT. JJ. LEONARD, J. A cask of wine, shipped from Antwerp to Liverpool, was received in good order by the defendants, as appears from their bill of lading; and they undertook, for a reward, to deliver it at New York, stipulating against liability by loss from leakage, damage from stowage, straining or other peril of the seas. The cask arrived at New York in March, 1868, in good condition, but without any contents. The defendants set up, as an affirmative defence, that the wine leaked out. They also contested the alleged value. The defendants attempted to prove several remote and indirect facts and circumstances, from which it was sought to be inferred that the loss occurred from leakage in some man- ner, which the court excluded, and defendants excepted. A stevedore was asked as to his experience of the effect of heavy weather on fluids in casks during a sea voyage ; and also as to the condition of the other casks containing fluids, that came out of the vessel at the same time as this. It was not offered to be shown that casks, perfectly sound at the ter- mination of the voyage, ever lost the fluids which had been put into them, in consequence of severe or heavy weather during the voyage. Any experience short of this would fall far short of justifying a legal conclusion that this wine was lost from a sound cask by stress of weather. The evidence was wholly immaterial and properly excluded. A motion was made to dismiss the complaint at the close of the plaintiff's evidence, for the reason that he had not proven that the government duties had been paid on the wine, and a custom-house permit obtained to land it. This omission in no manner excused the want of wine in the cask. It was nonsense to require the plaintiff to pay 1872.] OF THE STATE OF NEW YORK. 459 Arend v. The Liverpool, New York and Philadelphia Steamship Co. duty, or produce a permit to land a cask of wine, when the wine was gone. The importer of the cask of wine, after learning that the defendants had suffered a loss of the wine, assigned his claim against the defendants to the plaintiff, who brought the action. The assignor was asked, on cross-examination, what he sold it for to the plaintiff. It was insisted that it would tend to show bias and interest in the witness ; the price for which the claim sold was imma- terial, and might tend to prejudice the mind of the jury. The assignor had no legal claim against his assignee in respect to the price. Interest or bias do not disqualify a witness. It may be taken into consideration in weighing the value of evidence, but there would be no legitimate inference as to interest or bias against the witness on account of the price. Another witness was asked if this wine did not often dete- riorate in coming to this country. An exception was taken to its exclusion. The wine not having been delivered, it was purely conjectural whether it would have deteriorated. It was not claimed that such wine always deteriorated. The inquiry could prove nothing certain or material as to the wine in this case. A custom-house officer, who kept an entry of an applica- tion for a permit to land this cask of wine, was asked what he found on his memorandum as to the valuation of this cask. It was excluded by the judge, unless evidence should be given to connect the importer with the memorandum. This rule was correct. It was worse than hearsay, unless the memo- randum was brought to the knowledge of the importer at the time it was made or while he remained the owner. A witness, acquainted with custom-house business and regulations, was asked to state under what circumstances, and Dn what valuations, free permits are given at the custom department. The question was excluded, and an exception taken. The inquiry tended to prove nothing material. It was not shown that the importer had applied for a free per- mit. It was not claimed that there was any statute about 460 CASES IN THE SUPREME COURT [June, Newman v. The People. permits. It was of no consequence what were the rules or regulations of the custom-house. It does not follow that those rules are always observed. I helieve it is not unusual for the officials to disregard them wholly. The cask having been received in good order, the defend- ants were bound to prove that the loss occurred within some clause of the bill of lading exempting them from liability; proving that the ship had a tempestuous voyage, that the cargo was well stowed, and that the hatches were properly secured, &c., did not tend to shift the burden of proof. The cask was in good order on arrival, showing that the severe weather had not injured it, and, consequently, that the loss of the wine did not happen from that cause ; at least, that question could not be taken from the jury, as requested at the close of the evidence. There could be no conclusive presumption, in this case, that the wine was lost by stress of weather or peril of the seas. The matters embraced in the third and fifth requests of defendants' counsel to the court, in relation to the charge, are mere questions of fact, and were fully covered by the charge as given. The judgment should be affirmed, with costs. HENRY NEWMAN, Plaintiff in Error, v. THE PEOPLE, Defend- ants in Error. (GENERAL TERM, FIRST DEPARTMENT, JUNE, 1872.) One who is charged with a criminal offence may testify as a witness in his own behalf, under the statute of 1869 (chap. 678), although it appears that he has served out a term in the State prison. The law intended to allow a prisoner the benefit and privilege of stating to the jury any mat- ter which was calculated to explain the charge against him, and this privilege was to be enjoyed irrespective of any matter which could dis- qualify a witness under ordinary circumstances. The degree of credit to which he is entitled is a question for the jury. Delamater v. The People, 5 Lansing, 332, approved and followed. 1872.] OF THE STATE OF NEW YORK. 461 Newman r>. The People. THE facts sufficiently appear from the opinion. Present INGRAHAM, P. J. ; LEONARD, J. INGRAHAM, P. J. On the trial of this case in the Court of General Sessions, the prisoner was put on the stand and examined as a witness in his own behalf, under the provisions of the statute (678 of Laws of 1869), which provides that a party accused of crime shall, at his own request, and not otherwise, be deemed a competent witness in his own behalf. He was examined at length by the counsel for the prisoner and by the district attorney. On the cross-examination he was asked if he had been in the State prison ; he said he had served out his term. On this proof the district attorney asked the court to charge the jury to disregard his testimony, on the ground that, having served as a felon, being civilly dead in law, he was not competent as a witness. The court so instructed the jury to wholly disregard the testimony of the prisoner. We think this was an error. The law intended to allow a prisoner the benefit and privilege of stating to the jury any matter which was calculated to explain the charge against him ; this privilege was to be enjoyed irrespective of any matter which could disqualify a witness under ordinary circumstances. The degree of credit to which he was enti- tled was to be decided by the jury and not the court, and yet the court refused him the privilege given to him by the law, because he was not worthy of belief. This question has been examined and decided in third district, in Delamater v. The People (5 Lansing, 332). The court in that case say, " the person charged with any criminal offence, no matter how infamous, should be permitted to testify in his own behalf." It was also an error in the court, if the testimony conld have been excluded, to admit the testimony and then direct the jury to disregard it. However guilty the prisoner may be, he is entitled to all that the law gives him on his trial, and where the provisions and rules of law are violated, it is the duty of the court to direct a new trial. Judgment is reversed and new trial ordered. 462 CASES IN THE SUPREME COURT [June, Rosenzweig v. The People. JACOB ROSENZWEIG, Plaintiff in Error, v. THE PEOPLE, Defendants in Error. (GENERAL TERM, FlRST DEPARTMENT, JUNE, 1872.) The rule is well established that it is not competent to impeach a witness by contradicting him as to facts disconnected with and collateral to the subject-matter at issue and on trial. Accordingly, where a prisoner on trial for an abortion upon A. B., testified, as a witness on his own behalf, that he did not know N. W., a witness then present and pointed out to him, had never seen her, and had never procured an abortion upon her, and afterward N. W. was called as a witness, and, under objection, testified that the prisoner had procured an abortion upon her, Held, that the admission of this testimony was error, for which the judgment should be reversed. THE facts appear in the opinion. Present INGEAHAM, P. J. ; LEARNED and LEONARD, JJ. LEONARD, J. The defendant, Rosenzweig, was indicted and tried at the General Sessions of the Peace of the city of ]STew York, for producing an abortion upon Alice Augusta Bowlsby, resulting in a conviction for manslaughter in the second degree, and his sentence to the State prison for seven years. A case of probable guilt was proven against the defendant, at the close of the testimony for the prosecution, when he was sworn and testified as a witness in his own behalf, and gave his explanation of the facts proven against him, as he was authorized to do by an act of the legislature passed in 1869 (chap. 678). On his cross-examination by the district attorney, he testified that he did not know Nellie Willis, a young woman present in court, then pointed out to him ; that he had never seen her in his life, and that he had never procured an abortion upon her. Nellie Willis was afterward sworn on behalf of the people, and testified, against an objection and exception by the prisoner's counsel, that the prisoner had produced an abortion upon her person about two years before, by the use of instruments, at a time when she was three and one-half months advanced in pregnancy. 1872.] OF THE STATE OF NEW YORK. 463 Rosenzweig v. The People. The admission of this testimony was an error, upon well" established authority. It was not competent to impeach the prisoner as a witness, nor any other witness, by contradicting him as to facts disconnected with or collateral to the subject- matter at issue and on trial. The prisoner was not indicted for producing an abortion upon Nellie Willis, nor was he notified or prepared to meet that charge. No person can be required to come into court on a trial under an indictment for a specific offence, prepared to defend or explain other transactions not connected with the one on trial. There is no reason for doubting, in this particular case, that Nellie Willis testified truly ; but her testimony might have been false, and, having been brought out unexpectedly, the prisoner could not be prepared for it, nor could he be expected, on the instant, to vindicate himself. He would be wholly una- ble to meet it were the charge of Nellie Willis unquestiona- bly fictitious. Evidence of general good character would not relieve the prisoner from the stigma of the crime proved by Nellie Willis, nor restore the presumption in his favor which might otherwise have been created by his own evidence. Every person is presumed to be able to defend himself against evidence of general bad character for truth, but not so as to proof of particular acts of crime or misdemeanor. The ille- gal evidence so admitted tended to damage the prisoner's case, by inducing a conviction in the mind of the jury, from the commission of the previous offence, that he had committed the crime for which he was then on trial. No one can for a moment suppose that a person charged with the crime of murder should be convicted on proof that he had committed a murder two years before on another person. The same principle applies to this case, The admission of illegal evi- dence cannot be disregarded or excused upon the ground that the other evidence in the case was sufficient to justify a con- viction. The conviction must be had by legal evidence only. There would be no safeguard for innocence if this rule were to be disregarded. It is in the highest degree important that justice should be sure and speedy, and that when a conviction 464 CASES IN THE SUPREME COURT [June, Hinde v. Smith. has been had for an offence fully proven, that the offender should not be able to escape on technical grounds, or for rea- sons not involving the merits of the subject of the indictment ; but it is far more important to the cause of public justice that a fair trial should be secured, and that no person should suffer by an illegal conviction. A disregard of the legal rules estab- lished for the attainment of truth on the trial of an action in a court is but a mockery of justice, and rapidly degenerates to the standard of lynch law. The judgment must be reversed and a new trial ordered at the General Sessions. JOHN D. HINDE and THOMAS POKTER, Jr., Respondent, v. JAMES R. SMITH, Jr., Appellant. (GENERAL TERM, FIRST DEPARTMENT, JUNE, 1872.) The referee or jury are best qualified to decide whether inconsistencies in testimony arise from willful prevarication, or unintentional mistake, or defect in memory. Where the testimony of a witness showed discrepancies in fixing a date, placing it once at a time inconsistent with other established facts, also denials upon cross-examination of his statements upon the examination in chief, and was contradicted by the defendant as a witness on his own behalf, Held, that the decision of the referee upon the credibility of the witnesses would not be disturbed on appeal. The measure of damage recoverable from a commercial factor or agent who sells goods, intrusted to him for sale at a specified price, at less than the price authorized, is the actual damage sustained. Accordingly, in an action against a factor to recover for such a sale, where no increased market value for the goods was shown over the price realized, Held, that there was no damage and could be no recovery. A referee's error in computing too great a sum as due the plaimiff is not necessarily ground for reversal of his judgment, where the court can make the computation correctly and direct a proper abatement. THIS was an appeal by the defendants from a judgment against them, entered upon the report of a referee. The action was brought to recover the difference in the price of a quantity of whisky between the amount for which 1872.] OF THE STATE OF NEW YORK. 465 Hinde v. Smith. the same was sold by the defendant, and the price at which he was authorized to sell the same. It appeared from the evidence, as found bj the referee, that the plaintiffs were engaged as copartners in the manufacture of whisky, at Cincinnati, Ohio, and the defendant as a commission merchant in New York city, receiving consignmems of whisky for sale on commission ; that the plaintiffs consigned a quantity of whisky to the defendant for sale at the price of one dollar per gallon, which was duly received by the defendant on the 2d of November, 1866, and sold by him on or about the 13th of December ensuing at the price of seventy cents per gallon, which was the full market price of the whisky at that time. The referee gave judgment for the plaintiffs for the differ- ence between the price at which the defendant was author- ized to sell the whisky and the price for which the same was sold, and for certain commissions on sales claimed by the complaint as overcharged, and allowing the defendant for advances and expenses on account of the consignment. James Crombie, for the appellant. C. A. Runlde, for the respondents. Present INGRAHAM, P. J. ; LEONARD, J. LEONARD, J. The witness, Drake, called to prove the case on the part of the plaintiffs, testified uniformly and decidedly that the defendant was instructed to sell the Redman whisky at one dollar per gallon. On his direct and cross-examina- tion, and again on being recalled, he attempted to fix the date when such instructions were given at different periods ; and, on one occasion, apparently, he stated the time incon- sistently with the date when the whisky was delivered ; and further, denied that he had given such evidence on his first examination in chief as he had in fact given. It is urged by the defendant that the referee ought to have discredited birn for these inconsistencies, and also for the reason that he was LANSING VOL. VL 59 466 CASES IN THE SUPREME COURT [June, Hinde . Smith. flatly contradicted by the defendant as a witness in his own behalf. On these questions of credibility, and the manner of the witness in stating evidence, the referee or the jury are the best judges, and we cannot assume to be able to deter- mine more safely and wisely. There is one thing to be remarked in favor of the holding of the referee as to the credit to be attached to the evidence of Drake ; he was con- sistent and steady as to the fact that instructions were given to hold the Redman whisky at one dollar per gallon. The other matters giving the appearance of inconsistent statements might have arisen from a defect of memory. The referee must be regarded as better qualified to decide whether these inconsistencies arose from willful prevarication, or uninten- tional mistake, or defect of memory. The referee has found, on the evidence of Drake, that the instructions were given. The proof was indisputable that the defendant sold the Redman whisky at seventy cents per gallon. The referee has found that the price at which the sale was made was the full market value. I have looked care- fully through the evidence, and there is not a particle to prove that the whisky was worth any more in the market than the price for which the defendant sold it. It is clear, then, that the plaintiffs have sustained no damage. He should have proven a subsequent advance in the price, if .the fact was so. The referee has allowed, however, to the plain- tiffs the difference between the price at which the sale was made and that at which the defendant was directed to hold the whisky. This was an error. No such damage, accord- ing to the evidence, has been sustained. (Blot v. Boiceau, 3 Corns. R., 78.) The rule is different in the case of articles of art or antiquity, which have no fixed or known market value. I am inclined to the opinion that the referee has also made a trifling error in his computation of the commissions. If that was the only error, it need not necessarily work a rever- sal of the judgment, as the court could make the computa- tion, and, the amount being too large, could direct a corre eponding abatement or modification. 1S72.] OF THE STATE OF NEW YORK. 467 The People v. The President, &c., of New York Gas-light Co. The error in regard to the damages on the sale of the Red- man whisky requires that there should be a reversal of the judgment and a new trial before the same referee, inasmuch as it may be made to appear that the price advanced subse- quent to the sale. Let the costs abide the event. THE PEOPLE, Plaintiffs in Error, v. THE PRESIDENT, &c., OF THE NEW YORK GAS-LIGHT COMPANY, Defendants in Error. (GENERAL TERM, FIRST DEPARTMENT, JUNE, 1872.) A company, authorized by the legislature to manufacture gas to be used for lighting streets and buildings, cannot be indicted for creating a nuisance by unwholesome smells, &c., if its buildings and processes are of the best kind, its servants careful, and due skill and diligence are used in its business. A suit may, it seems, be maintained against the company for a special injury to a private individual caused by their works. THE facts are sufficiently stated in the opinion. Present INGRAHAM, LEONARD and GILBERT, JJ. LEONARD, J. The legislature have authorized the defend- ants to manufacture gas to be used for lighting streets and buildings in the city of New York, reserving the power to alter, modify or repeal the act. It is also required by the act that it be favorably construed in all courts for the pur- poses expressed therein. The defendants' gas works were erected in 1849, quite at the easterly extremity of Twenty-first street in the said city, and the company have ever since made and distributed gas therefrom extensively for the purposes authorized. It is conceded that their buildings and processes are of the best, their servants careful, and that they have used due care and diligence in their business. The defendants were indicted for creating a nuisance, by unwholesome smells, amokes and stenches, rendering the air corrupt, offensive. 468 CASES IN THE SUPREME COURT [June, The People v. The President, &c., of New York Gas-light Co. uncomfortable and unwholesome. It appears that persons residing near are much disturbed and sometimes sickened by the offensive smell which pervades the air and penetrates their dwellings in certain rarefied conditions of the atmosphere, particularly when an easterly wind prevails. The Court of General Sessions refused to hold that the act of the legislature and the entire absence of negligence on the part of the defendants were any defence. The power of the legislature is omnipotent within constitutional limits. It is sufficient to authorize railroads to be run through crowded thoroughfares with locomotives, causing great disturbance to the citizens who reside near it, and exposing their residences and property to constant danger of fire from the sparks emitted from the engines. If unauthorized by statute these acts would be a nuisance. The same power can authorize dams to be constructed and maintained for public purposes, although it may render the common air we breathe unwhole- some, producing thereby disease and death in its vicinity. The good of the greatest number is regarded by the legisla- ture as its justification for the extraordinary use of its power. If the railroad is carried on with the greatest skill and care, with every improvement and advantage known to science and experience, it is not a nuisance, although many are injured in property and personal security. (Davis v. The Mayor, <&c., 14: N. Y., 506 ; Bex v. Pease, 4 Barn. & Adolph., 30 ; Har- ris v. Thompson, 9 Barb., 350.) It may be that private per- sons can maintain an action for damages, as in Carhart v. Auburn Gas-light Co. (22 Barb., 297), but the people are barred by the act which their legislature have passed from making a public complaint by an indictment for such a cause, while the defendants conduct their business with skill, science and care. The judgment should be reversed. 1872.] OF THE STATE OF NEW YORK. 469 Lawrence t>. Maxwell. ALEXANDER C. LAWBENCE, Respondent, v. JAMES E. MAX- WELL, Appellant. 53a 19 (GENERAL TERM, FIRST DEPARTMENT, JUNE, 1872.) A broker who, without notice to his principal, disposes of stock of his principal, deposited with him as security against the liability incurred by him in making a sale known as a short sale of coin on behalf of the principal, is liable to such principal for the conversion of the stock, after a demand made and refusal to deliver the same, and tender of the amount due upon the transaction in which loss has occurred. Evidence is immaterial, in an action for such conversion tending to show a custom existing among brokers, in the city in which the transactions occurred, to use the stock held by them as security in the manner in which the stock was held by the defendant. Evidence is also immaterial in such action to show that the defendant had previously held stock of the plaintiff as security, which he had used in a similar manner without objection. The just and established rule of damages in such a case is the highest price of the stock between the date of the demand or conversion and the day of trial. THIS cause was tried at a Circuit Court, before Justice BKUNT and a jury, at the city of New York, on the 8th day of June, 1871. The action was brought to recover damages for the alleged conversion of 400 shares of the Atlantic Mail Steamship Company. At the several times in question the defendant was a broker, doing business as such in the city of New York, and the stock in question was pledged by the plaintiff to him as security against loss for conducting certain transactions in the purchase and sale of gold coin. At the ' lose of these transactions, which embraced a period of about a month, the account rendered to the plaintiff by the defend- ant showed a balance due to the latter of $11,600.22, which sum the plaintiff duly tendered and demanded the return of the stock. The defendant refused to return the stock, and thereupon this action was brought. The defendant had, in fact, pledged the stock some time before, on other transac tions, to raise money generally for his use. The defence principally insisted upon at the tri*l was pre 470 CASES IN THE SUPREME COURT [June, Lawrence v. Maxwell. dicated upon an alleged custom and usage in the city of New York, authorizing brokers to sell or otherwise dispose of the securities pledged, as in this case, as the broker might deem proper. The jury, under the instruction of the court, as stated in the opinion, found a verdict for the plaintiff for $36,098.22, on which judgment was entered, and the defendant appealed. W. W. McFarland, for the respondent. John E. Burrill, for the appellant. Present LEONARD and GILBERT, JJ. LEONARD, J. No exception having been taken to the charge of the judge at the trial, it must be assumed that the case was properly submitted to the jury, and that they have found, in conformity with the evidence of the plaintiff, that there was no consent on his part that the defendant might use the 400 shares of the stock of the Atlantic Mail Steam- ship Company deposited with him by the plaintiff. It must, then, be considered as security against the liability which the defendant assumed for the plaintiff, as agent in selling a large amount of gold coin, which neither the plaintiff or defendant possessed. It is a sale known among stock operators as a short sale. Such sales are effected by a contract made by the broker with some other party to deliver the article sold at a specified day in the future, or by selling the article, and bor- rowing it to make immediate delivery. In the latter case the broker or agent becomes indebted to the party from whom the gold or stock has been borrowed, and liable to return the article borrowed in specie, when called for, or on whatever terms it has been borrowed. He is thus exposed to the fluctuations of the market, by a rise or fall, in the same man- ner that he would be if the gold or stock had been sold to be delivered at a future day. The latter form was adopted in this case. By the rise in the price of gold a loss of about $11,600 ensued, at the time when the plaintiff directed the defendant to close the transaction. What were the rights of 1872.] OF THE STATE OF NEW YORK. 471 Lawrenc* v. Maxwell. the defendant, as against the plaintiff or the said stock ! Before he could lawfully sell the stock, it was his duty to noti- fy the plaintiff of the amount due to him, and call on him for payment. If the plaintiff neglected to provide money to meet the losses sustained by the defendant on the liability incurred as the plaintiff's agent, he might, on due notice, sell so much stock held as security as ^should be necessary to raise the sum required. The defendant was at liberty to call for money as fast as loss accrued ; but before he used the stock, his duty, as well as the law, required that he should call on the plain- tiff for money to meet his loss, or get his consent to use or borrow upon the stock which had been deposited with him. The defendant did not adopt such a course. He used the stock to borrow money for his own purposes, or otherwise disposed of it, without any consent of the plaintiff. He offered evidence at the trial to prove that it was cus- tomary among brokers in New York to use the stock held by them as security, in the manner this stock was held by the defendant, and, upon objection, such evidence was excluded. Also, that the defendant had previously held stock of the plaintiff as security, which he had used in a similar manner without objection or complaint on the part of the plaintiff, although he knew of it ; this was also excluded. The evi- dence so offered was clearly immaterial. Such a custom is simply a violation of the rights of the principal. A long- continued course of wrong-doing or violation of law will never prove a valid custom to continue it. Brokers who use the stock of their principals, relying upon any such custom, are liable to return it when called upon, if their demands or liabilities, incurred on the security of the stock, have been satisfied. If they cannot return it, they are liable in damages for the injury which has been caused by the loss of the stock. It is a clear violation of trust, and an action, as for a conver- sion of the stock, is within the election of the principal. The just and established rule of damages in such a case is the highest price of the stock between the date of the demand or conversion and the day of trial. Such was the rule adopted, 472 CASES IN THE SUPREME COURT [Nov., Muller . Pondir. correctly, at the trial of this action. It is no excuse or defence that the broker has taken advantage of the possession of his principal's stock, and used it without complaint on his part, on previous occasions. On those occasions he returned or accounted for the stock so used, and no cause of complaint remained. There appears to be no exception in the case as to the rule of damages adopted at the trial. The judgment should be affirmed, with costs. GILBERT, J. No point having been made as to validity of contract, I concur. (See 48 Barb., 593 ; 55 Pa., 294.) Judgment affirmed. GEORGE H. MULLER, Appellant, v. JOHN PONDIR, impleaded, &c., Respondent. (GENERAL TERM, FIRST DEPARTMENT, NOVEMBER, 1872.) The right of stoppage in transitu is applicable to bills of exchange. So held of bills purchased by the sender with his own funds, but upon the request and for the benefit of the person to whom they were sent. One who has obtained knowledge of a private communication addressed to another party cannot claim to estop the person making the communi- cation by statements therein contained. Accordingly fold, that a telegram from the sender of such bills of exchange, informing the person to whom they are sent, of the transmission, and describing the character of the bills, is not such an admission of the latter's ownership that, if he obtains credit on the strength of the tele- gram, it will estop the sender from reclaiming the bills in transitu . Such a telegram has none of the qualities of a bill of lading, and a transfer of it does not cut off the sender's rights in transitu. A transfer of negotiable bills without indorsement by the payee, confers no other rights than those of the transferor. An agreement of the person to whom bills of exchange have been sent to hand them over when received, is no t a present transfer, delivery, or assignment, of them. Without the means of obtaining possession of bills of exchange, one who claims them as security for a loan by title from the party to whom they were sent, and against the sender cannot, before delivery, be a pledgee of them. 1872.] OF THE STATE OF NEW YORK. 473 Muller v. Pondir. In the absence of proof, as to the amount of labor performed by a receiver, the reasonable rate of allowance for his commissions and expenses is according to the rate fixed by the statute for executors. APPEAL from a judgment entered in the action after a trial before one of the justices of the Supreme Court without a jury, upon his decision directing judgment in favor of the defend- ant, Pondir, for the amount of certain bills, less receiver's fees ; and also from an order entered, fixing the commissions and expenses of the receiver therein. The facts are stated in the opinion. T. C. T. Buckley and E. W. Stoughton, for the appellant. W. W. McFarland, for the respondent. Present INGRAHAM, P. J. ; LEONARD and LEARNED, JJ. LEAKNED, J. The plaintiff Muller, under the name of Muller & Co., a correspondent at Havana of Schepeler & Co. of New York, drew bills in his firm name on Schrosder & Co. of London and sold them. With the avails he bought cur- rency bills on New York, and the same were made payable to the order of Smith, a clerk of Schepeler & Co. This transaction was all done at the request and by the direction of Schepeler & Co. through a telegram. At this time Schepeler & Co. were indebted to Schrceder & Co. over 10,000, and Muller & Co. were not indebted to Schepeler & Co. in any amount. These currency bills, amounting in the aggregate to $60,000, were on the 13th day of May, 1869, by Muller & Co., inclosed in an envelope, directed to Schepeler & Co., and delivered to the purser of the Cleopatra at Havana, to be by him deposited in the post-office at New York. At three o'clock of Saturday, the loth of May, Schepeler & Co. failed for a large sum. On the morning of Monday, the 17th, Muller & Co. hearing of this failure, telegraphed to Muller & Bastian, their agents at New York ; and in pursuance of this telegram these agents on that day requested Schepeler & Co. LAXSIXG VOL. VI. 60 474 CASES IN THE SUPREME COURT [Nov., Muller v. Pondir. to hand to them the letter inclosing these bills on its arrival ; the Cleopatra not having then arrived. There is some conflict as to the conversation at that time ; but it appears by all the witnesses that Schepeler & Co. did not at the time make any claim, on their own account, to the bills, nor dispute the justice of giving them up to Muller & Co., so far as Schepeler & Co.'s rights were concerned. It was claimed that the rights of other parties had intervened, as hereinafter stated. Early on Tuesday, the 18th, this action was commenced, and the injunction was served on Schepeler & Co. by nine A. M. On that same day, the 18th, the Cleopatra arrived. The agents of Muller & Co. applied by seven A. M. at the post-office for the letter inclosing the remittance, but it was not there. About twelve o'clock noon of that day the letter was deposited in the post-office, and the agents of Mul- ler & Co. again applied for it. The delivery of the letter and remittance to Schepeler & Co. having been enjoined in this action, the funds in dispute have passed into the hands of a receiver, who holds them subject to the final judgment herein. On the 13th of May the plaintiff telegraphed Schepeler & Co. as follows : " To SCHEPELER & Co., New York : " Drew nine (9), twelve (12) and eleven three-quarters (llf), remit Cleopatra, sixty thousand (60,000), twenty-six half (26). "MULLER." On the morning of the 14th, Schepeler & Co. called on the defendant Pondir, exhibited to him this telegram, and applied for a loan of $70,000. Pondir consented to make the loan if Schepeler & Co. would surrender the telegram and write a letter expressing their understand- ing. Accordingly, on that day, Schepeler & Co. wrote the following letter inclosing the telegram : " NEW YORK, Uth May, 1869. " JOHN PONDIR, Esq. : " DEAR SIR. Being in want of some funds and not having any available securities at hand, we inclose the cable tele- 1872.] OF THE STATE OF NEW YORK. 475 Muller v. Pondir. gram from Havana advising remittance of about $60,000, currency, which, in case you can furnish us the money, we shall hand over to you on their arrival. " Yours truly, (Signed) " SCHEPELER & CO." And thereupon Pondir, on that day, loaned them $70,000. On this state of facts it was held by the learned justice who tried the cause, that, as against Schepeler & Co., the plain- tiff had no right to stop the currency bills in transitu, and that therefore Pondir was entitled to recover ; although he could not be regarded as having parted with his money in the usual course of business, because the notes were not indorsed or delivered to him. It may be remarked, in passing, that in this view of the case ; that is, if Muller had no right to the bills, and if Pondir did not part with his money in the usual course of business, but relied on Schepeler's agreement, then it would seem to follow that the funds would have to go to Schepeler & Co.'s general assignee, if they had one. The first inquiry then must be, what are the rights of the plaintiff in respect to these bills as against Schepeler & Co. Schepeler & Co. had parted with nothing for the bills, 'and had assumed no obligation for them. Their obligation to protect the sterling bills drawn by Muller & Co. on Schrceder & Co. was practically only an obligation to repay to Muller & Co. money advanced for their benefit ; or, more strictly, it was an obligation to protect Muller & Co. against a liability assumed for their benefit. When Muller & Co. purchased these currency bills with funds raised on their own credit ; either they owned the bills absolutely, or at least they had a right to retain them in case of Schepeler & Company's failure. Suppose that before Muller & Co. had delivered these bills to the purser of the ship, the failure had occurred and they had heard of it ; would it be claimed that Muller & Co. were bound to forward these bills to a bankrupt house ? It is unnecessary to argue such a question. Suppose that they had heard of the failure before the sailing of the Cle patra, could they not have reclaimed 476 CASES IN THE SUPREME COURT [Nov., Muller v. Pondir. the bills from the purser? And so coming farther down until the time that the property actually should reach the possession of Schepeler & Co., what principle of justice should prevent Muller & Co. from reclaiming property (or bills of exchange) for which they had paid the full value, and Schep eler & Co. had paid nothing ? In Harris v. Pratt (IT N. Y., at p. 263), it is well said by Judge STKONG, that " the basis of this right (of stoppage in transitu) is, that the insolvency of the vendee was not con- templated by the vendor in the sale, and that it is plainly just that he should, on account of that unforeseen event endangering the loss of the price to be paid, be permitted to reclaim the goods and keep them as security for payment at any time before a delivery terminating their transit." In the present case there is no question that the plaintiff exercised his right before the delivery terminating the transit. The point, however, insisted on by the defendant and on whish the learned judge who tried the action, decided it, is that the plaintiff was a surety, and therefore did not stand in such a relation to Schepeler & Co. as authorized him to stop the bills in transitu And this view was supported by the case of Siffken v. Wray (6 East., 371). In that case, Browne, the bankrupt vendee, after his bankruptcy, received the bills of lading and delivered them to the defendant Wray, an agent of one Fritzing, that he might apply the avails of the goods to the payment of the drafts drawn against them. Dubois & Co. were the shippers of the goods. Fritzing had accepted their drafts, at the request of Browne. It was held that the proceeding was not a stoppage in transitu, because it was not done adversely, but the goods were obtained by the voluntary agreement of the bankrupt ; that Fritzing had no right to stop in transitu, because he was not a vendor, but only a surety to the vendor ; and that Dubois & Co. had not in fact stopped the goods, because the defendant "Wray was not their agent. Now, if that case be analogous to the present, then Schrceder & Co., if they had accepted the sterling bills, would be the parties 1872.] OF THE STATE OF NEW YORK 477 Muller v. Pondir. in the position analogous to that of Fritzing ; while Mullei & Co. would be in the position analagous to that of Dubois & Co. And the decision in that case was not that Dubois & Co. could not have stopped the goods, but that they did not. They were not parties to the attempt to get possession of the goods. The decision was, that Fritzing could not stop the goods ; and the principle involved might be material here if this were an action by Sehroader & Co. after acceptance of the sterling bills. But this is an action by Muller, who occu- pies the same relative position with that of Dubois & Co. in that case. That decision is only important, therefore, in this respect, that it incidentally implies that Dubois & Co. might have stopped the goods ; and this supports the rights of this plaintiff. Turning then to the case of Feise v. Wray (3 East., 93), we shall find it decisive in favor of the plaintiff as against Schepe- ler Co., unless a rule is to be applied to bills of exchange dif- ferent from that whicli was there applied to merchandise. I see no reason for any difference, and, both on principle and authority, I think that as against Schepeler & Co. the plain- tiff's right is clear and just. The next question to consider is, whether Pondir, by the transaction of May 14th, acquired any better title than Schepeler & Co. had. The learned justice was of opinion that he could not be regarded as having parted with his money in the usual course of business, because the notes were not indorsed and delivered to him. This is a familiar principle, which, in the absence of any peculiar circumstances, would be decisive. But the defendant Pondir, relies on the telegram of Muller, shown to him ; and claims that he parted with his money on the strength of the information therein contained. In examining the effect of this telegram, it is to be noticed that nothing which Schepeler wrote or said to Pondir at the time of the transaction is binding on Muller by way of admis- sion or estopped. For instance, Schepeler said that they were expecting money from Havana; and he wrote at Pon- dir's request a letter to him, saying that the telegram advised 478 CASES IN THE SUPREME COURT [Nov., Muller v. Pondir. a remittance of $60,000 currency. Now these statements of Scbepeler can in no way affect Muller's right. To illustrate ; if there had been no telegram from Muller, and if Schepeler, knowing the fact of this remittance, had made to Pondir the same statements, it is clear that such statements could not in any way estop Muller. Suppose that Muller had bought these bills entirely on his own account and had sent them to Schepeler, being him- self the absolute owner of them : if, under such circum- stances, Schepeler had pretended to Pondir that the bills which he was about to receive were his own, such pretences eould not have deprived Muller of his property. "We must then confine ourselves to Muller's telegram and to Schepeler's acts ; and the inquiry must be, what did that telegram authorize a third party to believe in respect to these bills, and what did Schepeler do in respect to them at the time of the loan. Giving the telegram, so far as it touches these bills, its full import, it can only mean that Muller & Company had remitted to Schepeler & Co., by the Cleopatra, $60,000 of currency bills, purchased at twenty-six and a half discount. As to the ownership of the bills ; the purposes for which they were transmitted, or the respective rights of Muller & Co. and Schepeler & Co. therein, the telegram is silent. It is such a telegram as might have been sent if the remittance had been absolutely the property of Muller & Co., and had been sent by them for some special purpose to Schepeler & Co. It contains no statement or admission that the bills of exchange belonged to Schepeler & Co. Again, a telegram is a private communication. It is not addressed to the public or to whom- ever may see it. Often from its brevity it can only be cor- rectly understood by the person to whom it is sent; and often, therefore, no document is so unsuited for the perusal of third parties. It is not necessary in a telegram to guard against the misunderstanding of it by the public. It is enough that the receiver knows its meaning. Even then if this telegram had contained admission of Schepeler & Co.'s 1872.] OF THE STATE OF NEW YORK. 479 Muller v. Pondir. ownership of the bills, Pondir could not claim that Muller & Co. were thereby estopped ; for the statement would not have been made to him, and he would have had no right to rely on it. One who has obtained knowledge of a private communica- tion, addressed to another party, cannot claim to estop the person making the communication by statements therein con- tained. It will probably be found, in all the numerous and varied cases of estoppel in pais, that the words which have been held to estop a party have been addressed to the party who claims the benefit of the estoppel, or to the public. And where the estoppel has been the result not of words, but of silence, there the party estopped has had knowledge of some transaction, and has neglected to assert rights of his, affected thereby. This present case contains neither of those elements. The argument of the defendants' counsel is that Muller & Co. were merely the agents of Schepeler & Co. ; that the cur- rency bills were the legal property of Schepeler & Co. from the beginning, and that the telegram is an admission of that fact. But the money with which the currency bills were purchased was money raised on the credit of Muller & Co. ; not on that of Schepeler & Co. It was the money of Muller & Co., and the obligation of Schepeler & Co. depended upon their receiving the property purchased with those funds. Even, therefore, admitting the agency of Muller & Co., they had advanced funds for the purchase of these bills, and they justly had a right to reclaim them, when the failure of Schepeler & Co. had taken away all value from their obligation to protect ; and there is in the telegram no admission contrary to this right. The right of stoppage in transitu is cut off by the transfer of the bill of lading to a lonafide purchaser. (See Perrinv. Dows, 16 K Y., 325 ; Holbrook v. Vbse, 6 Bosw., 76.) But this telegram is not a bill of lading. It has none of the qualities of that instrument. (See Bonito v. Mosquera, 2 Bosw., at 438.) It was not negotiable or quasi negotiable. The transfer of the telegram, therefore, did not, like the 480 CASES IN THE SUPREME COURT [Nov., Mullet v. Pondir. transfer of a bill of lading, cut off Mailer's rights. Again, as stated by the learned justice, Pondir did not part with his money in the usual course of business, because the bills were not indorsed and delivered to him. In the case of Hedges v. Sealey (9 Barb., 214), it was held that where a note negotiable, but not indorsed, is transferred to another by delivery merely, the holder of the note is a mere assignee' taking only the rights of the assignor. This doctrine has been recognized since in other cases. (Gilbert v. Sharp, 2 Lansing, 412.) In the case of Russell v. Scudder (42 Barb., 31), it was held that a verbal pledge of a negotiable instru- ment, without a delivery or an absolute transfer, will not make the pledgee a bona fide holder. Now, in the present case there was no indorsement of the bills ; next there was no delivery of them ; and lastly an examination of the letter of Schepeler & Co. will show that there was not even a present assignment. There was an agreement that, at a future time, they wou!4 hand over the bills. And the reli- ance of Pondir in making the loan was therefore on the promise of Schepeler & Co. Pondir did not purchase the bills. He claims them only as collateral security. The transaction, therefore, if valid, was a pledge of the bills. ( White v. Platt, 5 Denio, 269 ; Wheeler v. Newbould, 16 N. Y., 392.) " Possession must uniformly accompany a pledge." " Goods on sea may be passed in pledge by a transfer of the muniments of title, as by a written assign- ment of the bill of lading. This is equivalent to actual posses- sion, because it is the means of obtaining possession." ( Wilson v. Little, 2 N". Y., 447.) But in the present case Pondir never had the means of obtaining possession of the bills. His pos- session of the telegram, with the letter of Schepeler & Co., gave him no power over the bills. Schepeler & Co. had agreed that, when the bills arrived, they would hand them to him. It was contemplated, therefore, that the bills should go into Schepeler & Co.'s hands, and should then be delivered to him. Between these two parties it might be equitable that Schepeler & Co. should perform this contract ; just as it would 1872.1 OF THE STATE OF NEW YORK. 481 Muller v. Pondir. be equitable that they should perform every contract. But there seems to have been nothing to prevent Schepeler & Co., on the arrival of the steamer, from taking the bills and using them as they pleased ; so that, even as against Schepeler & Co., Pondir does not seem to have obtained possession either of the securities, or of a " muniment of title," which would ena- ble him to take possession of them. His claim is the promise of Schepeler & Co. to hand him securities at a future day ; and when that day came Schepeler & Co. had no real interest in the expected securities. Coming to the conclusion, there- fore, that, as against Schepeler & Co., the plaintiff is entitled to the moneys in dispute, and that Pondir stands in no bfit- ter position than Schepeler & Co., it becomes unnecessary to examine whether or not the debt to Pondir was, in fact, sub- sequently paid. It follows that the judgment of the Special Term must be reversed, and that the plaintiff is entitled to recover the pro- ceeds of the bills now on deposit subject to the order of the court, after deducting the receiver's commissions and expenses, and that the plaintiff recover his costs against Pondir. The plaintiff also appealed from the order directing the New York Life Insurance and Trust Company to pay the receiver five per cent on the amount in their hands, and also 600 expenses. The order granting these ^commissions and expenses does not purport to have been granted on any affi- davits or on the hearing or motion of either of the parties. No affidavits appear in the case showing that there were any expenses, or that there was anything peculiarly difficult in the receiver's duties. By a previous order in the action, made before the trial, the receiver had been allowed $550 for expenses and commissions, besides his attorney's costs in cer- tain actions. So far as may be judged from the nature of the case, the receiver's duties must have consisted in receiving the money and depositing it in the New York Life Insurance and Trust Company to the credit of this action. Without some proof of the amount of duty performed, it seems reasonable to take the rate fixed for executors. The LANSING VOL. VI. 61 482 CASES IN- THE SUPREME COURT [Dec., Tucker t>. Woolsey. order as to the receiver's commissions and expenses should, therefore, be reversed, and he should be allowed only at the rate fixed for executors, together with his expenses, to be shown by affidavit, and to be adjusted by the Special Term on notice to the parties. Judgment reversed. JAMES "W. TUCKER and others, Appellants, v. EDWAKD J. , WOOLSEY and others, Respondents. (GENERAL TERM, FIRST DEPARTMENT, DECEMBER, 1872.) An agent sent from a foreign country with goods, in quantities for exhi- bition and sale, who produces letters from his principal to a corres- pondent of the latter at the place to which he is sent, asking assistance and advice for him in the prosecution of his business, has such apparent authority to hire suitable premises for storage of the goods as will justify the correspondent in renting such premises to him for the purpose, on the principal's account. But no authority can be implied from these facts, which will authorize the advancement of money by the correspondent to the agent, on account of the principal, even after an advance made by him for duties on the goods has been approved. Parol evidence is admissible of the contents of a letter, it appearing that the person in whose possession it is is out of the country. THE action was brought to recover a balance of accounts claimed to be due from defendants to plaintiff. An account- in . Woolsey. INGRAHAM, P. J. The appeal in this case is from a judg- ment before a referee, and applies to some items of an account which must be separately considered. The plaintiffs were merchants in Paris, and had accounts and dealings with the defendants in New York. They sent an agent to New York to look for orders in their business. They sent with him seven large trunks filled with goods, and gave him a letter of introduction to the defendants, asking for him their kind services as regards advice. Another letter was afterward sent, saying to defendants, " any assistance or advice you may render him in the prosecution of his business, will be appreciated." Two letters were afterward written, each asking defendants to advance the agent fifty dollars. On his arrival here, the agent called on defendants. The defend- ants advanced money to pay the duties. This was approved of by the plaintiffs. The defendants then, at the request of the agent, rented him an office in which to store and exhibit his goods. The plaintiffs deny the authority of the agent to hire. The referee allowed this item. There can be no doubt that the principal is liable for the act of his agent, so long as he acts within the apparent scope of his authority. The agent came with seven large trunks filled with goods. They were for exhibition and sale. Some place was necessary, either by renting a room for the purpose or by hiring storage. When the plaintiffs asked of defendants assistance and advice in the prosecution of his business, they gave them reason to suppose that such assistance and advice was in regard to the care and disposition of the property he had to sell, and fur- nishes ample grounds for supposing that the agent had authority to provide a place in which the goods could be stored and exhibited. It was a matter absolutely necessary for the care of the property of the plaintiffs, and fully justi- fied the finding of the referee as to the item for rent. Another item objected to on this appeal is as to moneys advanced to the agent beyond the $100 authorized in the two letters of the plaintiffs. It is clear that no authority was given to advance money to the agent for his expenses, and if 484 CASES IN THE SUPREME COURT [Dee. Tucker v. Woolsey. such items appeared in the accounts they should have been rejected. The agent, as he sold the plaintiffs' goods> deposited the money with defendants, because he had no bank account. As he would want to use it, he reserved the right to draw it as he had occasion. There was no direction given that this money should be paid by the agent to the defend- ants. They were justified in taking it as a special deposit, and in paying back that deposit to him as he from time to time required. The defendants were under no obligation to hold it for the plaintiffs, and to the amount of moneys so received they are entitled to be credited for an equal amount refunded. For any advances made beyond such deposits, and the sums specially ordered, there was no authority for the advance, and the same should be disallowed. The very fact that the plaintiff did not authorize the advance of moneys to the agent for duties and expenses, leaves it to be supposed that the intent was that he was to use the moneys received by him for the sale of goods, as much as was necessary for his expenses, and justified the repayment by the defendants to the agent of the moneys he so deposited with them. The remaining item is the money advanced for a passage ticket to return home. The testimony shows that Dreux produced to defendants a letter from the plaintiffs, and which was read by Woolsey, and which stated that the defendants should furnish him with a return ticket. The objection to this evidence was not well taken. It was in proof that Dreux kept the letter, and that he was out of the country. This was sufficient evidence to warrant parol proof of its contents. The denial by Andrews of having written such a letter, made it a question of fact for the referee, with which we cannot interfere. Our conclusion, therefore, is that no error was committed by the referee, except in allowing for moneys advanced beyond the amount deposited with the defendants, and such excess should be deducted from the amount allowed to the 1872.] OF THE STATE OF NEW YORK. 485 Cooper c. Felter. defendants, aiid the plaintiffs should have judgment for that sum, with interest. If the defendants so consent, and file a stipulation that plaintiffs may have judgment for the amount of such excess and interest, the present judgment may be vacated and such judgment maybe entered; if not, a new trial is ordered, costs to abide event Ordered accordingly. ANN ELIZA COOPER, Executrix, &c., Appellant, v. HENEY D. FELTEK and another, [Respondents. (GENERAL TERM, FIRST DEPARTMENT, NOVEMBER, 1872.) If, upon the presentation of a claim, an executor does not admit or reject it, he must be regarded as disputing it A denial of allegations, in a petition to the surrogate, cannot be regarded as allegations of new matter. It will not be presumed that a claim, against the testator for rent, is for th benefit of his estate ; and where no proof of actual benefit is made, or stated, in the petition upon which the surrogate assumes to hear the claim, it is error if he adjudge it a preferred claim under the statute. Section 6 of the act of 1870 (chapter 359) gives no authority to surrogates to try the claims of creditors which are disputed by an executor. That section ( 6) refers to accounts of executors, or administrators, rendered to the surrogate, and was not intended to deprive them of the right of trial of claims, disputed by them, by jury. APPEAL from a decree of the surrogate of the county of New York. The facts are stated in the opinion of the court. Present INGBAHAM, P. J.; BEADY and LEONAED, JJ. LEONAED, J. The surrogate of New York issued an order in the nature of a summons, bearing date the 17th of Febru- ry, 1 872, requiring Mrs. Cooper, the executrix of the last will of Benjamin F. Cooper, to personally appear before the said surrogate on the 26th of February, and render an account of her proceedings as such executrix, and show cause why the surrogate should not decree payment of the debt of Henry J). 486 CASES IX THE SUPREME COURT [Nor., Cooper v. Felter. Felter against Benjamin F. Cooper, deceased, upon a lease of premises at 560 Broadway, between Felter and said Benjamin, at the rate of $4:50, quarterly, being for six months' rent from August 1st, 1871, to February 1st, 1872. And a further sim- ilar order was afterward issued to recover for the next ensu- ing quarter, up to May 1, 1872, when the lease terminated. The summons was granted upon the petition of Felter, set- ting forth the same facts, substantially, as are stated in the said order or summons. The petition also stated that the said debt was "entitled to a preference in payment under the sta- tute, it being for the interest and benefit of the said estate that the same be paid." Also, that letters testamentary had been granted to Mrs. Cooper on the 14th of August, 1871, and that the petitioner, Mr. Felter, had demanded payment of the said rent of the said executrix, and although she did not dispute or reject it, that she had neglected to pay it. On the 26th of February, 1872, Mrs. Cooper attended before the surrogate and interposed an answer, denying, among other matters, that the said Felter was a preferred creditor, or that he had made any proper demand, or that there was any credible evidence of any lease between Mr. Felter and the deceased. She denied that the deceased was of sound mind at the time of the alleged leasing, or that the premises were of the rental value claimed; she denied that she had knowledge or information sufficient to form a belief of the truth of the averments of the petition, and therefore denied that any valid or binding agree- ment had been made by the decedent ; denied that it would be a benefit to the estate to give preference to said claim, and she submitted that she should not be required to consider the claim until properly presented by Felter as a creditor. The surrogate heard the proof offered by the said claimant on the 7th of March, 1872. The renting of the premises in July, 1871, for nine months from August 1, at the rate of $1,800 per annum, payable quarterly ; the possession of the deceased for a few days before his death in July, when he was engaged in putting the premises in order for occupation ; a demand for the rent in September, 1871, to which the execu- J3V2.1 OF THE STATE OF NEW YORK. 487 Cooper v, Felter. trix replied that it was in the hands of her lawyer, was proven before the surrogate ; but no affidavit or other proof of the claim was proven to have been submitted to the executrix prior to the commencement of the said proceeding. Substantially the same proceedings were instituted in May for the last quarter's rent, and a like petition and answer were tiled, but no further evidence appears to have been taken. On the 23d of May, 1872, the surrogate decreed that the said executrix pay the said demand, with interest, amount- ing to $1,378.28, and an allowance to the proctor for said Fel- ter of $75, " for and in lieu of all costs." The executrix appealed from this decree to the General Term of the Supreme Court. . It must be conceded on the pleadings that the claim is a disputed one. It was held by the Court of Appeals in Tucker v. Tucker (4 Keyes, 149), that when a demand was pre- sented to an executor or administrator and not rejected or admitted, and no offer made to refer, it must be regarded as a disputed demand. That the executor or administrator could not be permitted to occupy an equivocal position. If not admitted, the claim was to be considered as having been rejected. It was also decided in the same case that the surrogate had no jurisdiction to try or determine any disputed claim not even by the consent of parties. Several cases previously decided in the Supreme Court, to the same effect, are cited with approval. There was a denial by Mrs. Cooper as to the preference claimed ; a denial of any demand ; a denial of any valid lease; and a denial that the preference claimed would benefit the estate. There are other denials, but as there are no corres- ponding averments in the petition, the denials cannot pro- perly be regarded as formal allegations of new matter. The answer to the supplemental petition is in sufficiently proper form to constitute an allegation of the insanity of the decedent ; and the denial of the lease and of the demand foi payment are also duly and properly stated. 488 CASES IN THE SUPREME COURT [Nov., Cooper v. Felter. The evidence entirety fails to prove a demand of payment after any rent became due. The demand was in September, according to the evidence, but no rent was due until Novem- ber. The executrix offered no evidence. No evidence was offered that any adveitisement had been made for the produc- tion of claims, and the estate was not for that reason prepared for a final accounting. Indeed, it is not claimed that the matter was heard upon a final accounting. The right to be paid is put upon the ground that the claim is entitled to a preference. It is claimed that it is a preferred demand because it is for rent. The statute requires that the payment of rent, as a preferred demand, must be made to appear to be for the benefit of the estate. (3 R. S., p. 174, 5th ed., 34.) No proof was offered, and not a fact was stated in th* petition tending to prove that the estate would be benefited by the payment. The forfeit- ure of a valuable lease, or the necessity of storing merchan- dise belonging to the estate, if proven, might tend to show that the payment would be beneficial. But no such allega- tion or proof, nor any equivalent proof, was offered. It is claimed that jurisdiction has been conferred on the surrogate to hear and determine disputed claims by an act of the Legislature, passed in 1870. (Sess. L., chap. 359, vol. 1, page 826.) Jurisdiction is given by section six of that chap- ter to appoint a referee, in any accounting or proceeding in a Surrogate's Court, in the city of New York, to take testimony, to examine accounts rendered to said surrogate, to hear and determine disputed claims and other matters relating to said accounts, and to make report thereon, subject to the confirm- ation of the surrogate. There was no account or accounting attempted before the surrogate in this case. An accounting is mentioned in the order or summons to appear, but the evidence is wanting to prove that an accounting by the executor was intended as any part of the proceeding, and nothing was proven to justify any preference over other claims against the estate. But section six refers to disputed claims and other matters 1872.] OF THE STATE OF NEW YORK. 489 Cooper 9. Felter. relating to accounts rendered to the surrogate. Such accounts are the accounts of the executor or administrator, rendered to the surrogate, and not the accounts of creditors of the estate. The Revised Statutes have provided the mode of adjusting and deciding disputed claims of creditors against the estate of deceased persons. The creditor may be required by the executor to furnish vouchers for his claim, or to make affida- vit that it is justly due. (3 R. S., 5th ed., p. 175, 40.) If the executor duubt the justice of any claim presented, he may agree with the claimant to refer it. ( 41.) If the creditor exhibit a claim which the executor disputes or rejects, and does not offer to refer, the creditor shall within six months, if the claim is due, commence a suit for the recov- ery thereof or be forever barred. ( 43, p. 176.) It was never intended by any statute to deprive the execu- tor, or the creditor, of the common-law remedies, or defences to an action, or of a trial by jury, in regard to a disputed claim against the estate of a deceased person. The right of trial by jury cannot be taken away by statute, except in the case of a claim involving a long account. Such a claim must, also, be recovered by an action at law, in case the executor or administrator disputes it, and will not agree to refer it. A sta- tute cannot lawiullj' deprive an executor or administrator of these rights, nor confer such jurisdiction upon a surrogate as would amount to a denial of these constitutional rights. The allowance to the proctor falls, of course, with the judg- ment. The ninth section of chap. 359 authorizes the surro- gate to make allowances in lieu of costs, to counsel, in pro- ceedings before him, in the manner prescribed by the Code of Procedure in civil actions. The order must be reversed, with costs. LAPSING VOL. VI. 62 490 CASES IX THE SUPREME COURT [Nov., . Hagen v. The Bowery National Bank. JULIUS H. HAGEN, Respondent, v. THE BOWEKY NATIONAL BANK, Appellant. (GENERAL TERM, FIRST DEPARTMENT, NOVEMBER, 1872.) A bank is liable to a bona fide holder in the ordinary course of business upon a forged check purporting to be drawn upon it, payable to order, and which it has certified. The liability to such holder attaches upon the certification, and it is immaterial whether the indorsement of the check is that of the payee named, or whether a fictitious person is named as payee. An advertisement of a forged note cannot affect a bona fide holder thereof unless brought home to him. THIS was an appeal by the defendant from a judgment for the plaintiff eiitered upon a referee's report. The action was to recover upon the acceptance or certifica- tion of a check, and the findings made by the referee were as follows : " 1. That on the 26th day of March, 1868, a person repre- senting himself to be P. Donovan presented to the defend- ants a check for $2,100, payable to P. Donovan or order, on the Bowery National Bank, purporting to be drawn by one John Sniffen, who was then a depositor with said bank. " 2. That the defendants, upon presentation of the check to them, certified said check to be good, as alleged in the complaint, in the usual way of such certifications by the pay- ing teller stamping the same upon its face, and writing his name thereon. "3. That shortly after said certification, the defendants learned from John Sniffen, the depositor, by whom said check purported to be drawn, that said check was never drawn by him, and the defendants thereupon inserted in four daily morning newspapers, which were issued on the morning of the next day, March 27th, 1868, a notice cautioning the pub- lic from negotiating said check. " 4. That on the said 26th day of March a person repre- senting himself to be P. Donovan presented said check to the 1872.] OF THE STATE OF NEW YORK. 491 Hagen v. The Bowery National Bank. paying teller of the Sixth National Bank and asked the said bank to pay the same. " 5. That previous to this day, the person so presenting said check had been introduced by a customer of the bank to said Sixth National Bank as P. Donovan, and in that name had opened an account in said Sixth National Bank, and in that name had deposited money and drawn checks upon it. " 6. That the paying teller of said Sixth National Bank, upon the presentation of said check so certified, refused to pay the same ; but upon the same being indorsed by the per- son presenting the same with the name of P. Donovan, the payee therein named, the paying teller certified the indorse- ment to be correct. " 7. That said person thereupon left the bank, and on the 26th day of March, 1868, took said check to the plaintiff, who was a dealer in gold and silver coin and bullion, doing busi- ness at No. 1 Wall street, in the city of New York, and offered to purchase gold coin with said check. " 8. That this person being a stranger to the plaintiff, and it then being after bank hours, the plaintiff sent said check to a bank near his office to ascertain if the certification upon its face of the Bowery National Bank was genuine, and also the certificate of the Sixth National Bank to its indorsement. That the paying teller of the bank had left for the day, and the plaintiff was unable to and did not learn concerning the genuineness of said certifications. That thereupon the plain- tiff refused to deliver the gold and take the check until he could verify these certifications, and requested the holder of the check to call the next day during banking hours. " 9. That the said person called the next morning, the 27th of March, 1868, and again presented said check. That there- upon the plaintiff sent said check to a bank in the neighbor- hood, and learned that the certifications thereon were genuine. " 10. That thereupon the plaintiff took the check and deliv- ered to the person presenting it its full equivalent in gold. "11. That shortly afterward (this being on the 27th of March, 1868) the plaintiff sent said checks to the banking 492 CASES IN THE SUPREME COURT [Nov.. Hagen t>. The Bowery National Bank. house of the defendants at the comer of Canal street and the Bowery, and demanded payment, and was then for the first time informed that said check was a forgery, and payment of said check was refused. " 12. That the name of John Sniffen, as signed to the said check was in fact a forgery. " 13. That the plaintiff took said check without notice of the forgery of the drawer's name, and gave value for the same in good faith, and in the course of his business. " 14. That the plaintiff has never been paid by said defend- ants the amount of said check. " 15. That the interest thereon from the date of the pre- sentation thereof to the date of this report is $470.33. " And I report as a conclusion of law, that the plaintiff is entitled to judgment against the defendants for $2,570.33 and the costs of this action." James R. Marvin, for the appellant. Franklin Brown, for the respondent. Present LEONARD and GILBERT, JJ. x By the Court GILBERT, J. The defendant certified the check in question as being good. The plaintiff took the check in the ordinary course of business for value and in good faith. There is nothing shown to impeach his title. The check turned out to be a forgery. It cannot be questioned that the bank is liable to make good its certificate by paying the check. (Farmers' and Merchants' Bank v. Butchers' and Drovers' Bank, 25 id., 146 ; Price v. Neul, 3 Burr., 1354 ; Commercial, dec., Bank v. First National Bank, 30 Md., 11.) The principle on which the liability rests is stated by HOLT, Ch. J., in Hern v. Nichols (1 Salk., 298), namely, that " seeing somebody must be a loser by this deceit, it is more reason he that confides in the deceiver should be a loser than a stranger," and has become an established rule of law in cases identical with this. 1872.] OF THE STATE OF NEW YORK. 493 Herbert t>. Smith. Whether the indorsement purporting to be that of the payee named in the check was genuine or not, or whether the per- son so named was a fictitious person, imperfectly appears. But it is immaterial whether it was one or the other. There can be no real payee of a forged instrument. As between the plaintiff and the bank the liability of the latter attached upon the check being certified, and as it is impossible to make title to money payable upon a forged check through an indorse- ment thereof, proof of the genuineness of the indorsement is unnecessary for that purpose. The evidence shows that the person from whom the plaintiff received the check went by the name indorsed thereon, and that the indorsement was made by him. This is quite sufficient to protect the plaintiff against any imputation of negligence or bad faith in taking the check. The advertisement of the forgery not having been brought home to the plaintiff, can have no effect whatever upon his right to recover. (Raphael v. Bank of England, 170. B., 161.) For the reasons stated, we are of opinion that the judg- ment should be affirmed with costs. Judgment affirmed. ELLA S. HERBEKT and another v. SUSAN P. SMITH and others. (GENERAL TERM, FIRST DEPARTMENT, NOVEMBER, 1872.) A misunderstanding or mistake, in regard to matters of agreement, upon argument at Special Term is not a subject for review on appeal. Where the fee simple, and every equitable title to lands, was vested in the parties to an action for its partition, Held, that the action would lie. The vendee of lands under a contract for purchase at a large price, died, after payment of a portion of the purchase-money, leaving a still greater balance unpaid ; his administrators advanced their own funds, partly, with those of the intestate, and took a deed to themselves individually, which they claimed to hold only as security for their advances. Held, that an action for partition, between all the legal and equitable ownera of the lands, could be maintained. 494 CASES IN THE SUPREME COURT [Nov., Herbert . Smith. And it seems equity would entertain an action upon a complaint setting forth the facts, and to which all interested were parties and decree a sale, in the nature of a partition, and a division of the proceeds. An omission, of proof of the sending by mail a copy of the summons and complaint, on service by publication, may be supplied by order direct- ing the filing of such proof nunc pro tune, made after decree. The Code requires publication of a summons to be made continuously in each paper, but not concurrently. The service is not complete until forty-two days after the first insertion in. the paper last making publication. . Questions in a partition suit, respecting the suitableness of the guardians ad lilem appointed by the court, their attention to the interests of the infants, the money advanced by administrators on behalf of the infants, the amount of the estate, &c., do not affect the jurisdiction of the court or regularity of the sale, and are not grounds upon which purchasers of the lands can be relieved from their purchase. Where the referee, to make a partition sale, has not followed the decree in respect to the terms of sale, the court may, upon proof that the devia- tion was not prejudicial to the infants, but desirable for their interests, direct a modification of the decree nunc pro tune, A question, of such deviation from the decree, being as to regularity of practice only, and not one on which the court would have intervened after the sale, is not one with which the purchaser has any concern. Where the referee adjourns the sale in partition, after sales of part of the premises, to a particular time, and upon confirmation of the sales made the court directs the sale of the remaining premises to stand over to a future time, the adjournment of the referee is nullified, and a sale at a later day than the day appointed by adjournment made upon publica- tion of notice for six weeks as directed by the decree, is regular. An allegation by the purchaser, that mortgages exist upon the property purchased which the referee was not prepared to satisfy at the time for the delivery of the deed, is met by proof that the amount to be paid by the purchasers was sufficient to extinguish the mortgages, and that the holders were at hand to receive the money and satisfy their liens. A suggestion that title is defective because it came through a grantee who had purchased in his own right, forty years since, while he stood in the relation of trustee of the property, where no evidence is offered to show that the trustee did not account to his cestui que trust, the property hav- ing been often since transferred by his and subsequent grantees, is not material. THIS was an appeal from an order refusing to relieve a purchaser at partition sale from his purchase. The facts are stated in the opinion. Present BRADY and LEONARD, JJ. 1872.1 OF THE STATE OF NEW YORK. 495 Herbert . Smith. LEONARD, J. This is an appeal from an order denying a motion, on the part of Amos R. Eno and others, to be relieved from their respective bids and contracts to purchase certain lots in the city of New York mentioned in a judgment of partition and sale of the said lots, rendered by this court in the above entitled action. The objections set forth in the petition for relief are quite numerous and have all been urged for our consideration, except the fifteenth, by some of the petitioners. A preliminary motion was pressed by the appellants upon affidavits presented at the General Term, in the first instance, tending to show that some understanding had been made between the judge who heard the motion at Special Term and the different counsel, that in a certain event a reference should be granted to take proof on certain of the objections mentioned in the petition, and that the judge had disregarded this agreement or understanding, and decided the whole motion without any reference and without the hearing of counsel for the petitioners on the points involved in those objections. The answer to this objection is obvious. The facts were sufficiently before the court to enable the judge properly to comprehend the points raised by the petitioners. The appellants have also mistaken the correct method for obtaining relief, if there was, in fact, any mistake or mis- understanding on the part of the judge at Special Term. The fault, if any, ought to have been corrected by an appli- cation for a rehearing of the motion at Special Term on affi- davits clearly pointing out the mistake or oversight which had occurred. No such application was made. It is not the province of the General Term to correct mistakes of the nature complained of, as it is not a question of appellate jurisdiction. 1. The first objection of the petitioners is that the parties had not a title in fee simple, and hence, that they had not a case authorizing a partition of lands. There was a contract of purchase on the 10th of February, 496 CASES IN THE SUPREME COURT [Nov., Herbert v. Smith. 1869, made by "W. M. Smith with the vendor and owner, upon which he paid $20,000, and agreed to pay the further sum of $35,000 on the 10th of May ensuing, when the land was to be conveyed to him, and he was to execute to the vendor mortgages on the premises for the residue of the pur- chase-money. W. M. Smith, the purchaser, died intestate on the 22d of February, 1869, leaving a wido\v, Susan P. Smith, and one adult child, the plaintiff in this action, and six minor children. In March following the widow and Mr. Yernon K. Stevenson were appointed administrators of the estate of the deceased. They afterward fulfilled the contract, on the part of their intestate, paying about $7,000 of the sum due in May from their own private funds, and the balance from the estate of the intestate, and with the intention of making an immediate sale of the property and securing the advances so made by themselves, the administrators took an absolute title to themselves in fee simple. It is alleged in the complaint that the title was so taken by the administrators for the benefit of the children of the intestate, subject only to the mortgages and the advances so made by the administrators. The said children, and the widow and administrators, are all made parties to the action, and the administrators make no claim adverse to the said allegations as to the title, and claim only for their said advances as against the title of the children of their intestate. Any claim of an absolute title by the admin- istrators, in themselves, would be a fraud under the conceded facts. It is clear that the fee simple to the lands, and every equitable right or title, was vested in the parties to the action at the time of its commencement. Whether Mrs. Smith and Mr. Stevenson are the plaintiffs or the defendants, on this state of facts is of no consequence. The parties are seized of the whole title and are before the court. The decree or judg- ment binds them. It appears, also, that the administrators are ready to give their confirmation of the title by deeds to the respective purchasers. Besides, if the title of the heirs be simply an equitable one, there is no difficulty in taking cog- nizance, as a court of equity, of the case presented by the 1872.] OF THE STATE OF NEW YORK 49? Herbert . Smith. complaint, and relieving the parties from the embarrassments and complications arising from the large investment of the money of the intestate in the purchase of the land, while the title is held as security for a comparatively small sum by the administrators, and decreeing thereon a sale of the premises, in the nature of a partition, and a just and equitable division of the proceeds. 2. The infant defendants, it is said, have not been duly served. The affidavit to procure the order of publication states that all of them reside at Selma, Alabama, but one of them, Oscar, is temporarily absent at Bellevue High School, Virginia. The order directs service to be made by publication in two newspapers once in each week for six weeks, and the usual direction that copies of the summons and complaint be mailed to each of the said non-residents at their said places of residence. At the time the decree was taken it appeared that the sum- mons and complaint had been mailed, directed to Oscar at the place in Virginia where he was temporarily residing ; but it was not then made to appear that the summons and com- plaint had been mailed and directed to him at Selma, his residence. This defect was afterward cured by an order of this court on affidavits proving that the summons, &c., was, in fact, mailed and properly directed to Oscar, at Selma, on the same day that the other copies were mailed to him at Virginia, directing that such proof be filed, nunc pro tune. I think the supplemental affidavits show that the summons and complaint were properly posted and directed, and the amendment has cured the defect. The publication in the two newspapers was not conducted simultaneously during the whole six weeks. In one paper the publication was commenced on the 9th July, and the last insertion was on or before the 14th of August, 1869 ; and in the other, the first insertion was June 9th ; and the last, on or before July 14th, 1869. The next step taken against the infant non-resident LANSING VOL. VL 63 498 CASES IN THE SUPREME COURT [Nov., Herbert v. Smith. defendants was on September 27th, ensuing, when guardians were appointed by the court by order, on application of the plaintiff. I am not aware of any decision or any provision of the Code requiring the publication in two newapapers to proceed concurrently. Nor can I perceive any prejudice to the party served by publication by the first and second insertions occur- ring at different dates. The Code requires the advertisement to be made continuously in each paper for a certain number of weeks, but not concurrently. It requires forty -two days to complete the publication, and the defendants have twenty days after that in which to appear. The first insertion may be on the last day of the first week of the publication, and the last on the first day of the last week. This publication of six weeks may be accomplished between the 10th of July and 14th of August, but the service will not be complete, never- theless, until forty-two days after the 10th of July, the date of the first insertion in the newspaper last making publica- tion. The publication will be complete, then, on the 21st of August ; adding twenty days for the appearance of the non- residents, and they will be in default on the llth of Septem- ber. No proceeding was taken against the non-resident defendants until the 27th of September, 1869. The making of affidavits, on which to found further proceedings against them, does them no prejudice, and does not affect the regu- larity of the plaintiff's action. I consider the service of the summons and complaint, upon the non-resident defendants in this case, to have been regularly made. 3. The third objection mentioned in the petition relates to the service on Oscar P. Smith, and has been already con- sidered. The fourth objection relates to the age of Oscar, and as a question of fact is fully answered by the opposing affidavits. The fifth objection refers to the time for the appearance and answer of the infants (who are non-residents), and has also been fully examined above. The sixth objection relates to questions of fact, and these 1B72.] OF THE STATE OP NEW YORK. 499 Herbert v. Smith. are fully and satisfactorily explained by the opposing affidavits. The seventh objection questions the suitableness of the guardians ad litem appointed by the court, and raised certain questions of fact as to the attention of the guardians to the interests of the infants whom they represented, the money advanced by the administrators, and the amount of the estate of their intestate, &c. These are not questions concerning the jurisdiction of the court or the regularity of the sale, and are not grounds upon which the purchasers can be relieved. They are fully explained, also, by the opposing affidavits. The eighth objection states that the bonds of the guardians have not been made, approved or filed. It is wholly without any foundation in fact, as appears from the record and affida- vit read in opposition to the motion. The ninth objection complains that the referee exacted from purchasers less favorable terms than the decree provided, not following the terms of the decree, whereby the rights of the infants were prejudiced, as the purchasers believe that the more favorable terms mentioned in the decree would have enhanced the price at the partition sale. The referee reported the sale to the court, and it was duly confirmed. The affidavits show that it was not in fact prejudicial to the infants, but a desirable proceeding for their interest. I think it was not a question with which the purchasers have any concern, it being one of regularity of practice only, and not of jurisdiction, nor one upon which the court would have intervened after the sale, on the application of the parties. It was an irregularity capable of amendment, and the judge, on the hearing of the petition herein, directed the decree to be modified so as to conform to the terms of sale, nunc pro tune, as of a date anterior to the sale. Whatever ground for the objection may have existed, it is cured by the amendment. The tenth objection is a claim that the sale was by the referee adjourned to a day in February, 1872, and without any advertisement of a sale for that day, or any adjournment in February, the sale was actually made in March. The affi- davits of the parties who resist the motion prove that on the 500 CASES IN THE SUPKEME COURT [Nov., Herbert 0. Smith. confirmation of a sale of a portion, of the premises, on the 28th November, 1872, the court by an order directed the sale of the other lots " to stand over " to a future time. The time in February mentioned by the referee in his report was nulli- fied by the order of the court. The opposing affidavit states that the sale in March was advertised for six weeks, pursuant to the directions of the decree. I find it mentioned on the points of counsel, that posters notifying the public of the sale were not put up in season ; that they were posted only forty days prior to the sale. I find nothing in the moving papers of any such defect, and on reference to the decree, there is no direction for posters to be found. There appears to be no ground for this objection. The eleventh objection suggests that there are creditors of the intestate ; that the administrators have not advertised for claims, and the real estate of the intestate is liable to creditors. The opposing affidavit states that more than three years have elapsed since the appointment of the administrators, and no creditor has been heard of, and no petition or claim has been made. The petitioners mention no particular creditor, but make a general allegation that the estate was largely indebted. The veracity of the statement is sustained by the liability of the intestate upon the contract for the purchase of the premises in question. It is insufficient, however, to sustain the objection. The presumption is adverse to the existence of such debts. (Bogert v. Bogert, 45 Barb., 121.) This authority is also in point as to some of the other objections. The charge is too indefinite to disturb the validity of the sale. The twelfth objection states that a succession tax is due to the United States, which is a lien. The affidavit on behalf of the parties states that the intes- tate was a resident of Alabama, where he had a large estate ; that there is no such tax capable of being ascertained in this State until the proceeds of the sale of the said premises has been realized ; that there is no other property of the deceased in this State. 1872.] OF THE STATE OF NEW YORK. 501 Herbert v. Smith. The thirteenth objection is that there are mortgages unsat- isfied, and the referee was not prepared to satisfy them at the time mentioned for delivery of the deed. This position is met by affidavit that the amount to be paid by the purchas- ers was sufficient to extinguish the mortgages, and the hold- ers were at hand and ready to receive the money and deliver satisfaction thereof. The referee also so certifies. Fourteenth objection. That there is a defect in the chain of title; that Bancel was the owner in 1825, and mortgaged to Bouchard in trust for infants ; that Bouchard foreclosed in 1828, and bought in the premises for half the mortgage debt, taking title in his individual right ; that he sold to Williams in 1835, in his individual right, for more than double the price paid ; this transaction is suggested to be a fraud upon his cestui que trust, and that their release is necessary ; that Hie deed from Bouchard to Williams is a nullity. It is stated in opposition to this point, by affidavit, that no claim on the part of the cestui que trust has ever been advanced, now a period of more than forty years since Bou- chard acquired the title, and that there is a valid deed from him to Williams, dated in January, 1835, duly recorded, in consideration of $11,000. I think the claim of the cestui que trust, if any, has been barred by lapse of time. But there is no evidence offered that Bouchard did not well and properly account to those for whom he acted as trustee, and the presumption is to the con- trary. The title has been since transferred eight or nine times, and there appears nothing against it but a vague and indefinite suggestion that the deed of Bouchard is a nullity. Fifteenth and last objection is that the old Bloomingdale road is a portion of the premises in question, and the petition- ers are of the opinion that the title to that road is vested in the corporation of the city of New York. The respondents allege that the lot purcased by Mr. Eno is the only one affected by this objection ; that the fee of this gore reverted to the owners of the adjoining land under 3, of chap. 697 of the Session Laws of 1867. 502 CASES IN THE SUPREME COURT [Nor*, Hildebranfe. Crawford. The petitioners have not argued this objection, and it appears to have no foundation. There are several mis-recitals of dates in the proceedings ; several matters have been amended since the decree, nun& pro tune ; and there is no doubt that the practice was con- ducted in a careless style ; but I find no objection that has not been cured, or that has a sufficient foundation to defeat the contract of the purchasers. ' The order 'should be affirmed, with costs. CHARLES HILDEBRANT, Respondent, v. EDGAR M. CRAWFORD,, Appellant. EDGAR M. CRAWFORD, a survivor, &c., Appellant, v. CHARLE& HILDEBRANT and others, Respondents. (GENERAL TERM, THIRD DEPARTMENT, NOVEMBER, 1871.) An agent, acting within the general scope of his apparent authority, pur- chased personal property, for which he gave a note signed by him as agent, without naming the principal. The property purchased was received by the principal. Held, the payee having taken the note bona fide that it bound the principal, notwithstanding the agent's instructions prohibited him from giving notes. Held, also, that the receipt of the property, for which the note was given, rendered the principal liable for its value, and that the note was at least evidence of such value in an action counting on the indebtedness, as well as on the note. The prohibition of section 399 of the Code does not prevent a party from testifying, in an action in which the legal representatives of a deceased person are adverse parties, to a conversation between the deceased and a third person, also deceased, which was overheard by the witness. Nor is a party prohibited by that section from testifying to a transaction between himself and the agent of deceased, previous to the time of his death. Parol evidence is admissible in an action for the foreclosure of a mortgage, payable in money, assigned by the mortgagee as collateral security for the payment of his indebtedness to the assignee, that it was agreed that such indebtedness was to be paid in produce. 1871.] OF THE STATE OF NEW YORK. 503 Hildebrant v. Crawford. A statement copied from a book of account and compared therewith is, upon loss of the book, admissible to prove the account. Where two actions are tried together, costs are taxable in both, except, per- haps, it seems but one trial fee should be allowed. THE first of the above entitled actions was brought to recover the sum of $1,822.10 for produce alleged to have been sold and delivered by the plaintiff to one Joseph Kellogg, the agent of E. M. Crawford, defendant, and the-amount of two promissory notes signed by Kellogg, agent, without stating for whom made, given for tobacco purchased of plaintiff for the firm of Crawford & Palmer, and Bidder & Palmer, of which the defendant was the survivor. The account was alleged to have commenced in December, 1856, and continued till 1860. Some small payments in money are alleged to have been made on the account in the years 1857, 1858 and 1861. This action was commenced the 28th day of May, 1866. The answer of the defendant Crawford sets up, substan- tially, a denial of indebtedness to plaintiff, and also the statute of limitations. On the llth day of July, 1867, or thereabouts, Edgar M. Crawford, as surviving partner of Bidder, Crawford & Pal- mer, commenced an action in this court against Charles Hildebrant and others to foreclose a mortgage executed by Theodore Hildebrant to Charles Hildebrant, and assigned by Charles Hildebrant to Bidder, Crawford & Palmer as col- lateral security for the payment of the sum of $800, payable in three years from the date of said assignment, with interest annually thereon. Such assignment was executed the 18th day of July, 1851. The defendant, Charles Hildebrant, alleges in his answer to said complaint that Bidder, Crawford & Palmer were, in the year 1856 and for some years thereafter, copartners in the manufacture and sale of tobacco at Ithaca. That such busi- ness was, during that period, carried on by their agent, Joseph Kellogg. That in April, 1856, the defendant, Hijdebrant, purchased a farm of about three hundred acres of one Isaac A. Hawley, 504 CASES IN THE SUPREME COURT [Nov., Hildebrant . Crawford. That in part payment of the purchase-price of said farm Hawley took a house and lot belonging to Ridder, Crawford & Palmer at $800, and Hildebrant made the assignment of this mortgage for $800 to secure the payment thereof to them. That it was agreed by Hildebrant, with Ridder, Crawford & Palmer, that such sum ($800 and interest) should be paid in produce from the farm, except that some money should be paid if necessary. This contract is alleged to have been made with plaintiff's agent, Joseph Kellogg. The answer then set out the cause of action contained in the complaint in the first action ; and further alleged that Crawford, the plaintiff in the second action, was indebted to Hildebrant for produce, &c., and prayed an accounting between the parties to the actions. Both actions were referred to the same referee and tried together. The facts material to a proper disposition of the questions raised are sufficiently stated in the opinion. The referee found, as matter of law, that the amount due on the assignment of the mortgage was fully paid, and that Crawford was indebted to Hildebrant in the sum of $688.08, and that Hildebrant was entitled to judgment therefor, with costs in both actions. Exceptions were duly taken to the referee's report. Judgment was entered upon the referee's report, and the appeal was taken by Crawford. The case was submitted upon printed points. Lyon t& Donnell/y, for the appellants. Ferris & Dowe, for the respondents. Present MILLER, P. J., PARKER and DANIELS, JJ. MILLER, P. J. There was no error in the finding of the referee that Crawford, as survivor, was indebted to Hilde- brant in two promissory notes in the sum of $573.62. These notes were signed by " J. Kellogg, agent," and the name of the principal does not appear upon the face of either of them. 1871.] OF THE STATE OF NEW YORK. 505 Hildebrant v. Crawford. It is alleged in the complaint in the first, and in the answer in the second action, that Kellogg acted as agent in the tobacco business, at Ithaca, for Eidder, Crawford & Palmer for the firm of Crawford & Palmer, survivors, and for Craw- ford as survivor and successor of Eidder & Palmer. These allegations are admitted in the answer in the first action, and in the reply in the second action, with the qualification in both that Kellogg had no right to make debts or to give notes, but was prohibited from doing so, which was well known to Hildebrant. Although the signing of the notes by Kellogg as agent, alone and of itself, would not bind the principal, who is not named, yet, in connection with the allegations in the com- plaint in the first action, that Kellogg, as agent and for the benefit of his principal, and within the scope of his power and authority, purchased of the plaintiff personal property, for which the notes were given, and the evidence given on the trial, the finding of the referee was fully justified. There can be no doubt that a principal is responsible for the act of the agent, which, although an abuse or excess of his authority, was within the general scope of the business he was employed to transact where the party with whom the business is trans- acted has no notice of any limitation of authority, and would otherwise suffer loss. (Clark v. The Metropolitan Sank, 3 Duer, 248 ; Dunning v. Roberts, 35 Barb., 463, 467 ; Whit- leek v. Schuyler, 44 Barb., 269, 471 ; Lefier v. Field, 50 Barb., 407-411.) Upon the trial before the referee Crawford testified that Kellogg was an agent for certain purposes ; that he had no authority to contract any debt, except through his principals, and was never authorized to give notes or written instruments, or to deal in real estate ; but his testimony is contradicted by other evidence in the case, which tends to establish that there was no limitation to Kellogg's authority. The letters from Crawford, introduced in evidence, recognize Kellogg as agent, and his liability for Kellogg's paper as agent, which was laying over. Notes and accounts made by Kellogg were also paid by Crawford's agent, thus again recog- LANSIXG VOL. VI. 64 506 CASES IN THE SUPREME COURT [Nov., Hildebrant v. Crawford. nizing Kellogg's authority to create such liabilities. There was ample evidence, I think, to warrant the conclusion that Kellogg was authorized to make the notes in question. But even if there was no positive authority to sign the notes as agent, as the proof showed that Crawford had received the property sold, and had the benefit of it, the notes were at least evidence of the amount of the purchase. If the notes were of no avail the purchasers would still be liable for the property which they actually had ; and, in this point of view, the amount reputed as due was right. In De Witt v. Wal- ton (5 Selcl., 572), cited by the counsel for Crawford, the com- plaint was on the note alone, and, hence, the authority is not in point. Even if it really be questioned whether oral evidence was admissible where the action is on the note alone, yet, with the allegations in the complaint as to the agency and the purpose for which the notes in question were made, it was clearly admissible to prove in this manner that Kellogg was an agent. It is insisted that the referee erred in permitting Hildebrant to testify to a conversation between Bidder, one of the part- ners, and Kellogg, in the presence of Hildebrant, in relation to the taking of produce in payment of the $800 indebted- ness. Kellogg and Bidder were both deceased, and Crawford was the surviving partner. Hildebrant was present at the con- versation between Bidder and Kellogg, when Kellogg told Bidder that he had sold the witness the house and lot, and he was to have the produce of the farm to pay for it. Kellogg asked Bidder what he thought of the arrangement to get pro- duce in pay for the house and lot, and Bidder said that he thought it was a good idea. This conversation was designed to show the liability of the firm to Hildebrant on the alleged contract, and the evidence was objected to upon the ground that it was a transaction or communication with a deceased person, within 399 of the Code, and therefore was not admissible. I think that within the principle of /Simmons v. 1871.] OF THE STATE OF NEW YORK. 507 Hildebrant v. Crawford. Sisson (26 N. Y., 264), the transaction or communication respecting which the testimony was given, was not between the witness and the deceased, but between the deceased and a third person, and therefore the testimony was proper. In the case cited, it was held that the prohibition of 399 does not prevent a party from testifying in an action in which the legal representatives of a deceased person are adverse parties, to a conversation between the deceased and a third person, which was overheard by the witness, and that the hearing of such conversation is not a transaction between the deceased and the witness. This is directly in point. (See also Lob- dell v. Loldell, 36 N. Y., 333.) The evidence of the agreement made between Hildebrant and Kellogg as to the house and lot and mortgage, was also com- petent testimony. It was not a transaction or communication within 399 of the Code. Nor was proof that the payments were to be made in produce and grain from the farm any con- tradiction of the written agreement of the mortgage. It wag admissible evidence to establish payment in a particular man- ner. The statement of Hildebrant's account was also competent testimony. There was evidence to prove that the books were lost ; that the statement was a copy of the account which had been compared with the books. This was the highest evidence which could be produced under the circumstances, and was properly admitted. I also think that the letters were properly received as evi- dence. It is alleged that they were immaterial, but it -is not pointed out in what respect, if any, they were liable to this objection. Nor is it apparent from their perusal that they were not pertinent. The evidence as to the wood alleged to have been delivered to Kellogg, as agent, was objected to upon the ground that there was no such claim made in the pleadings, and no amendment was asked for upon the trial. It does not appear to be named specifically in the pleadings. Nor does it appear from the case that any sum was allowed for wood, and therefore if there 508 CASES IN THE SUPREME COURT [Nov., Hildebrant v. Crawford. was error in admitting the evidence, it is not apparent that any injury was done. As it would have been proper to amend the pleadings so as to include the wood upon the trial, and I am inclined to think even now an amendment might be made, the admission of the testimony would not be sufficient cause for a new trial. The position taken that the judgment is against the weight of the evidence, and that therefore it should be reversed, can- not, I think, be maintained. The defence to the mortgage was that the debt had been paid, and the principal evidence to prove payment was the testimony of Hildebrant, to the effect that there was an agreement between Joseph Kellogg, the agent, and himself, which was sanctioned by Ridder, one of the assignees of the mortgage and partners, that it was to be paid in produce from the farm. It is claimed that this testimony is contradicted by various facts and circumstances ; but it is a sufficient answer to this position to say that while many of those facts tend strongly to contradict Hildebrant, it is by no means clear that they are not sufficiently explained. It was a question of credibility to a great extent, and the referee, after hearing Hildebrant testify, has thought proper to credit his direct testimony and the explanation he has given to the facts which seem to contradict his statements. I am not prepared to say that there is such a preponderance of testimony against Hildebrant's version of the matter as would justify a reversal of the referee's decision upon this question of fact. The' referee allowed Hildebrant costs in both actions, although both actions were heard together. I see no reason why the party succeeding should not have costs in both actions, so far as they were separated. "When heard together, perhaps, only the trial fee is chargeable ; but until a trial, the costs must necessarily be separate. This is not a case where causes are consolidated in one action by order of the court and a single suit only is pending. (See 17 Wend., 228.) The decision of the referee was correct, and the amount to be taxed was a question to be determined upon the adjustment 1871.] OF THE STATE OF NEW YORK. 509 Baker . Baker. of the costs. If any improper charge was made, the clerk should have deducted it, and if he erred, it should be cor- rected in an appeal from the taxation. There is no other question in the case which requires dis- cussion, and there being no error, the judgment must be affirmed with costs. Judgment affirmed. JEROME E. BAKEK, Respondent, v. WAEKEN L. BAKEE, Appellant. (GENERAL TEEM, THIRD DEPARTMENT, MARCH, 1872.) Where a revenue stamp is omitted from a promissory note or other written instrument at the time it is made, by mistake and without intention to evade the revenue laws, the instrument is not by reason of such omission invalid hi its inception. In order to invalidate the instrument, a fraudulent intent must be affirma- tively shown, and the burden of proof of such intent is upon the party objecting to the want of a stamp. The action was brought upon two promissory notes and indebtedness for work and labor. A defence was interposed of the statute of limitations as to first note, and as to second that it was void because of the omission of the parties to stamp it. The cause was tried before a referee, who sustained the defence as to the first note, and ordered judgment for the plaintiff against the defendant for the amount of second note and the claim for work and labor, amounting to $595.72, and judgment was perfected accordingly for $702.97, damages and costs, from which the defendant appealed to this court. The following leading facts were found by the referee : That on the 30th of March, 1863, defendant made a note in writing, whereby he promised to pay Deborah Baker $500 five years from date. That on the 17th of November, 1869, said Debo- rah Baker assigned the note to the plaintiff. The referee also made a certain other finding and refusal to find as requested by the defendant's counsel in certain particulars, which 510 CASES IN THE SUPREME COURT [March, Baker v. Baker. so far as material, are sufficiently stated in the opinion. Exceptions were duly and properly taken to the referee's report. It appeared upon the trial that there was no internal revenue stamp put upon the note by either party at the time it was made, nor at any time afterward, until it was assigned to the plaintiff, when stamps to the amount of thirty cents were put on the ~back of the note next to the written assign* ment, and obliterated by the letters " D. B. Nov. 17th, 1869." These stamps were put on and canceled by the plaintiff in pursuance of the authority given by Deborah Baker, the payee, when the assignment was made, "to put a stamp on said assignment and cancel the same." The defendant never authorized any one to put a stamp on the note. There was no other stamp on the note when offered in evidence,and no stamp was put on during the trial. Other evidence was also given on the trial which is also stated in the opinion. A judgment was entered upon the referee's report in favor of the plaintiff, and the defendant appealed to the General Term of the Supreme Court. The case was submitted upon printed points. E. Countryman, for the appellant and defendant. A. Hardy, for the respondent and plaintiff. Present MILLER, P. . Bennett. A judgment was entered upon the verdict and a motion made for a new trial at Special Term and denied. The defendant appealed from the order denying a new trial and from the judgment. The case was submitted upon printed points. Sedgwicks, Kennedy <& Tracy, for the appellant and defendant. JSallard <& Warren, for the respondent and plaintiff. Present MILLER, P. J"., PARKER and DANIELS, JJ. By the Court MILLER, P. J. The law is well settled that a party cannot recover for services rendered where that party has lived with another as a member of his family, to be pro- vided for, brought up and educated as such, and that relation continued during all the time that such services were ren- dered. This decision was held in this case, when before the Court of Appeals, and the judgment was reversed and a new trial granted upon the ground that the judge upon the trial refused to give proper instructions to the jury in this particu- lar. (See 38 How. Pr. R., 406.) It appears from the report of the case cited that it was proved upon the trial by John C. Bennett, a son of the testator, that in the fall of the year, after the plaintiff came to live in the family of the testator, that her father came to the testator's house, and that it was then understood between him- and the testator that the plaintiff was to live there as a member of the testator's family ; that he was to send her to school, and take care of her as his child. There was no direct contradiction of this testimony, and the father of the plaintiff was not a witness, and not present at the trial. On the second trial he was sworn and examined as a witness, and positively denied that there was any such conversation or any such arrangement or agreement. The father and the plaintiff also testified that before she went to Bennett's to live her father told her that she could have her wages, and that he had never sought to control her wages. It 1871.] OF THE STATE OF NEW YORK. 515 Shirley t>. Bennett. will be seen that there is a difference in the evidence between the last and the former trial, and there is a direct contradic tion as to the main fact in controversy, which was proper for the consideration of the jury. The judge, therefore, pro- perly refused to instruct them that from the whole evidence it appeared that the plaintiff went to live with the testator as a member of his family, to be taken care of and provided for as such, and not as a hired servant, and entitled towages, and that the jury should find for the defendant on that ground. The court did not err in refusing to instruct the jury that the plaintiff could not recover for services rendered more than six years prior to the testator's death. The plaintiff lived with the deceased from April, 1852, to June, 1861. She was married on the 27th of December, 1860. Six weeks before she was married the deceased sold a cow to the plaintiff for twenty dollars. Shortly before her marriage ten dollars was paid to her, and at one time a pair of shoes was delivered ; also a box of clothing, bed, bedding and several dresses. The testator died on the 24th of September, 1865, and letters tes- tamentary were not issued until the 12th day of February, 1860. The action was brought in August, 1866. The pay mei-t of money and the articles delivered kept the claim alive and prevented the statute of limitations being a bar to it. The action was brought before six years had elapsed after this payment, and before the statute had attached. An objection is made that the judge erred in allowing Edward Naylor, the father of the plaintiff, to testify to trans- actions with the deceased, or conversations with him, on the ground that he was originally entitled to the demand for ser- vices. The witness had waived his right to the daughter's services by emancipating her ; and by means of such emanci- pation he had relinquished his claim, and authorized her to labor for herself and to receive her own earnings. (See Shute v. Dorr, 5 Wend., 206.) The services were performed after the emancipation had taken place, and the witness did not have at any time any such legal demand for the services ren- 516 CASES IN THE SUPREME GOURT [March, Filkins v. Baker. dered as would exclude him from being a witness within the provisions of section 399 of the Code of 1869. The plaintiff and her husband were also competent wit- nesses on the trial ; and none of the testimony given by them to which objection was made was improperly received. No other points are urged as error, and the judgment and order must be affirmed, with costs. Judgment affirmed. GERMAN FILKINS, Respondent, v. AUSTIN E. BAKER and another, Appellants. (GENERAL TERM, THIRD DEPARTMENT, MARCH, 1872.) A witness may not testify to the reason others had for their conduct; such testimony is but the expression of an opinion. A witness may refresh his memory from a copy made by himself, of hia memorandum, on proof that the original memorandum is lost. Items of charge for labor and services, made up from memoranda in detail previously taken daily, and at the end of the week written out by direction and in the presence of the witness, are available as original memoranda. Testimony given without objection cannot, it seems, be stricken out upon motion made after the whole evidence is in. THE action was brought to recover for a balance due for work, labor and services, &c., performed in 1867 and 1868 by the plaintiff, as a shoemaker, for defendants, who were partners, and judgment is claimed for such balance, with interest thereon from December 12, 1868. The case was referred, by order of the court, to a referee, to hear and determine the same. The said referee, after hearing the evidence, &c., found in favor of the plaintiff for $98.15, including interest on the amount found due the plaintiff, from December 12, 1868, the time mentioned in the complaint, besides costs. It appeared upon the trial that, in 1866, the plaintiff com- menced work for Austin E. Baker (one of the defendants) 1872.] OF THE STATE OF NEW YORK. 517 Filkins . Baker. and Benton, in their boot and shoe shop, at Marathon, and worked in the same shop till June 28, 1867. In the meantime (on March 1, 1867) Leonard T. Baker, the other defendant, had bought into the firm, taking the credits of the retiring partner and assuming his share of the indebt- edness. In pursuance of that arrangement defendant Leonard set- tled with plaintiff all accounts between plaintiff and old firm up to January 25, 1867, and, finding the plaintiff indebted up to that time in the sum of $1.84, charged the same against him on the books of the new firm. On June 29, 1867, the plaintiff commenced work for the defendants, under a contract by the day, as foreman and cutter, at the agreed price of two dollars per day, or twenty cents per hour, and board himself. Several questions were made upon the trial, which are dis- cussed in the opinion. A judgment was entered on the referee's report, and the defendant appealed. Benj. T. Wright^ for the appellant and defendants. , for the plaintiff and respondents. Present MILLER, P. J.; POTTER and PARKER, JJ. MILLER, P. J. There was no error in the refusal of the referee to allow the witness (Walter Torry) to answer the question put by the defendants, which was as follows : " Do you remember of other hands having to do cutting and measuring during working hours by reason of plaintiff's absence?" While the fact, that others did cutting and measuring was competent, the opinion of the witness as to the reason of the work being done was clearly improper, at least as to others besides himself. He stated the reason as to himself, and this was competent, because he knew. But as to others, he could not well know the reason. Proof of the plaintiff's absence, and that the work was done, would leave 51 8 CASES IN THE SUPREME COURT [March, Filkins 0. Baker. the inference to be drawn that this was the reason ; and the defendants might have known that other hands were employed in consequence of the absence of the plaintiif ; but as to the vitness, it would be a mere expression of opinion, and, there- fore, was improper. It was also competent, I think, for the witneas (Comstock) to testify what evidence one of the defendants had given upon the trial before him as a justice, by looking at a copy of his minutes to aid his memory. He testified that he had searched for the original minutes and could not find them ; that he did not know that he had them ; that he kept the minutes, intended to keep them correct, and that the copy was made by himself. This, I think, showed the loss of the minutes, and was sufficient to authorize the witness to testify from the copy. But even if the ruling was erroneous it caused no injury, as the defendant himself testified that he did swear as was stated in the witness' answer to the first question ; and the answer to the other question was from his recollection, and not from the minutes. The referee properly refused to strike out the testimony of the plaintiff as to fhe time he worked as foreman and cutter. The plaintiff testified " that he had an account of his work ; and, in swearing to it, he relied upon the memorandum " which he produced ; that this was all he had. He kept another memorandum besides this the number of hours he worked each day on pieces of paper ; and the one produced was in his wife's handwriting. He figured the number of hours himself, and she set it down as he directed every Satur- day night, and he could not give the days and hours he worked except from this paper. No objection was made to this evidence at the time it was given, and the motion to strike it out was made after the testimony was closed, upon the ground, first, that it was incompetent and improper ; second, that the memorandum was not an original entry, but was a copy, not made by the witness nor properly proved. I am inclined to think that the memorandum to which the 1872.] OF THE STATE OF NEW YORK. 519 Filkins T. Baker. witness referred may be regarded as an original memoran- dum, made at the time by himself or by his diection, which is the same thing, under the circumstances, as if he had per- sonally done it. The testimony shows that the plaintiff made up the amount of his week's work from separate slips of paper, from day to day, which he kept ; that he reckoned them up every Saturday night, and his wife set them down as he directed in his presence and under his immediate supervision. It was, therefore, really and in point of fact, his own memo- randum which, as he testified, he relied upon in swearing to the time, and which it was entirely proper to refer to, for the purpose of refreshing the recollection of the plaintiff upon a single point, within the principle of some of the cases cited. (6 N. Y., 337 ; 29 N. Y., 346.) Even if there may have been objections to the testimony originally, as no objection was made to it when given and the defendant only moved to strike it out after the whole evidence was in, I am. inclined to think that there was a waiver of the objection, and it cannot now be successfully urged. (Hall v. Earnest, 36 Barb., 585 ; Quin v. Lloyd, 41 N. Y., 349.) The finding of the referee, that there was an agreement between the parties as to the price per diem to be paid to the plaintiff, was not so entirely against the weight of the evi- dence as to authorize this court to set aside the verdict for that reason. True, the testimony was conflicting, but there is no such preponderance in favor of the defendant as to jus- tify a reversal of the judgment upon any such ground. No other objections are urged, and as there was no error, the judgment must be affirmed, with costs. IN ME MORI AM.* PEOOEEDINGS OF THE COLUMBIA COUNTY BAR, COMMEMORATIVE OF THE DEATH or JUDGE HENRY HOGEBOOM, AT THE COURT-HOUSE, IN THE ClTY OF HUDSON, MONDAY, OCTOBER 14TH, 1872. At an adjourned meeting of the bar of Columbia county, held at the court-house, in the city of Hudson, N. Y., on the 14:th day of October, 1872, at three o'clock, p. M., called in commemoration of the death of Hon. HENRY HOGEBOOM, late one of the justices of the Supreme Court of the State of New York ; On motion of John C. Newkirk, Hon. Theodore Miller, presiding justice of the General Term for the third judicial department, was called to the chair; and after returning thanks/ for the honor conferred upon him by his selection as presiding officer, spoke as follows : REMARKS OF HON. THEODORE MILLER. I confess my disappointment at the absence of t\vo eminent members of the bar, John Gaul, Jr., and William II. Tobey, Esqs., who were expected to be present and to participate in these proceediugs. Mr. Gaul took an active part at the first meeting held to take notice of the decease of Judge HOGE- BOOM, and it was then adjourned with a view of securing the attendance of Mr. Tobey and some other gentlemen who were These proceedings were received too late for insertion in vol.5. REP. LANSING VOL. VI. 66 522 ACTION ON DECEASE OF absent. Upon the adjourned day both Mr. Gaul and Mr. Tobey were unable to be present by reason of indisposition, and on that account, as well as the absence of another distin- guished lawyer, Mr. Beal, who, I am happy to say, is able to be with us to-day, it was postponed to the present time. It is a matter of deep regret that Mr. Gaul and Mr. Tobey are prevented by sickness from meeting with us on this solemn occasion, and that we are obliged to proceed in their absence. As the representatives of the legal profession, who for a long period have occupied commanding positions at the bar and as old and tried personal friends of the deceased, their pre- sence would add much to the interest of these commemorative ceremonies, and I am confident that none more than these gentlemen will deplore the unfortunate circumstances which .deprive them of this privilege. It is perhaps not inappropriate, before assuming the duties of presiding officer, to avail myself of the opportunity presented to pay a tribute of respect to the memory of the deceased, which is due to his high personal character and eminent talents, as well as to the distinguished position which he has long filled with great ability, as one of the justices of the Supreme Court of this State. The decease of Judge HOGEBOOM has filled many hearts with profound sorrow. It has been for a long time anticipated by his friends, and its slow and certain approach cast a continu- ous gloom over those who knew him well, and appreciated his many sterling qualities and excellent traits of character, and who could not but realize that his earthly career was fast drawing to a close. It is indeed a sad and sorrowful event to witness those with whom for many years we have had intimate and friendly rela- tions, gradually decay and depart from among us. It sunders another link in the chain which binds us to earth and forcibly reminds us that at most but a few years remain to those who survive. The name of HENRY HOGEBOOM is associated with my earli- est recollections of the bar of this county. I remember our departed friend, when I was a law student in this city, as one then in thy d.nvn of early manhood, who had entered upon a MR. JUSTICE HOGEBOOM. 523 i . professional career full of high promise and bright expecta- tions, which were more than realized by his subsequent bril- liant success as a lawyer and jurist. Even at this early period of his life, Judge HOGEBOOM was distinguished for a maturity of judgment and a dignity of character far beyond his years. And while many, by slow degrees and measured steps, assume the weightier responsi- bilities and reach the higher walks of the legal profession, he at once and on the start grappled with the most difficult prob- lems in the law and evinced the highest order of ability. He took a position in the front ranks. He came upon the 'stage about the time when Ambrose L. Jordan, Campbell Bushnell, Killian Miller, Joseph D. Monell and John W. Edmonds, of that generation of lawyers, now almost extinct, were at the full zenith of their fame, and with them he entered upon the f legal contests of the day with a zeal, vigor and abil- ity whicn soon ranked him as fully their equal, and which placed him in prominent position among the members of the bar of the State. He was a fine scholar, well versed in the classics, possessed of a finished education and great intellectual ability. His mind was comprehensive and broad, capable of grasping any subject, and gifted with resources equal to any emergency. His antagonists were men of extraordinary talent, and the trial of a cause in those days was an intellectual treat, a gladi- atorial combat of mind against mind, which elicited all the powers and capacities of the man, and all the talents, learning and eloquence of the true lawyer and the advocate. This period may perhaps be characterized as a brilliant era in the history of the profession in this county, when elo- quence and debate were permitted to have full scope, without the restraints which increasing business and modern utilita- rianism has imposed. There were jio rules restricting the time for addressing a court or a jury or imposing any barriers to a free, full and extended discussion. Surrounded by men such as I have described and in a school like this, amid the clashing of great intellects, striving for the mastery, Judge HOGEBOOM commenced his professional life 524 ACTION ON DECEASE OF and developed the strongest elements of his talents, character and legal ability. When engaged in professional conflicts he was calm, cool and collected. His manner was dignified and commanding, and his style of oratory was forcible and of a high class of forensic eloquence. He was also as strong and convincing in argument as he was eloquent, easy and happy in speech. He more frequently carried conviction by the force of his logic, and soon won for himself a reputation as one of the ablest lawyers of the State, enjoying a large and extensive practice in this and the counties in the vicinity. There was one remarkable and peculiar characteristic in his style of addressing both court and jury, as well as his charges to a jury, as a judicial officer, which is worthy of par- ticular attention ; and that was his fine, elegant and rich flow of language. His words rolled out with an exuberance and a fluency which never failed, and were so apt and appropri- ate, so well adapted to the purpose and the occasion, that it appeared difficult to im-prove their character, or to add to their strength, force or effect. I have had occasion frequently to remark that he employed as pure Saxon-English, and pos- sessed as fine command of language, as any person I ever heard at the bar or on the bench. His extemporaneous and off-hand efforts were at all times as grammatically accurate as if they had been prepared after careful study before delivery ; and, in purity of diction and elegance of expression, I think he approached as near to the style of Daniel Webster as any other jurist within the range of my acquaintance. Judge HOGEBOOM was a man of great industry, and, at times, a hard student. His cases were always well prepared while practicing at the bar. Without this characteristic no lawyer can expect to attain any great distinction or success.' This habit followed him upon hig elevation to the bench ; and here, as elsewhere, he brought to his aid the garnered treasures of much toil and labor. I have reason to know that, while engaged in performing the arduous duties of his judicial position (which, under ordi- nary circumstances, are full enough for the most vigorous and strongest of men), he, at the same time, in addition, heard MR. JUSTICE HOGEBOOM. 525 and decided one of the most difficult, extraordinary and heaviest cases ever tried in this State. This, from its great magnitude and the vast interests involved, necessarily occu- pied a considerable portion of his time and attention, extend- ing over a period of about two years, and, I have alwajs entertained a belief, contributed somewhat to the prostration of his previous good health and apparently vigorous constitu- tion. Judge HOGEBOOM'S mind was eminently of a judicial cast ; and here, in this court-house, where he has so frequently pre- sided with so much dignity and acceptance, and where he was so well known and appreciated, it is scarcely necessary to speak of the ability and integrity and of the faithful and satis- factory manner in which he discharged the duties of his official position. At an early period of his life, when comparatively a young man, as one of the judges of the Court of Common Pleas of this county, he evinced the highest capacity for a judicial station. As one of the justices of the Supreme Couit cf this State for the past fifteen years, he has ranked among the first judges in the land. At the Circuit he was patient, consider- ate, ready and prompt in disposing of business with great facility and entire impartiality, and to the satisfaction of par- ties and counsel. Comprehending the intricacies of a difficult case, he presented them with great clearness, so that any ordinary mind could understand the questions to be deter- mined. His charges were remarkable in this respect, as well as for the beauty and accuracy of language employed. He was, in fact, a model Circuit judge. But whether at the Cir- cuit, Special or General Term, Judge HOQEBOOM manifested a thorough and complete knowledge of legal principles, and the highest order of legal and judicial talent. He composed with great facility ; and his opinions in the published reports are not only distinguished by an elegance of style, but bear ample testimony of his learning, and of his ability and power as a judicial writer. He had a high and proper appreciation of the dignity of the judicial office, and maintained it at aE times and upon all occasions. As a jurist he had few if any 526 ACTION ON DECEASE OF superiors. He was an upright and just judge, and the bench of this State has experienced a great and irreparable loss by his decease. For nearly eleven years I have had the honor of being associated with him, more or less, as one of the justices of the Supreme Court in this judicial district; and, although in our official relations we have repeatedly had occasion to differ upon questions to be decided, I am happy to say that at no time has any conflict of views arisen which has disturbed our harmonious, official and personal intercourse, or created any unpleasant feeling between us. He was an honorable, high- minded gentleman of the old school, in every sense ; a fine specimen of the Holland Dutch from which he was descended, and always acted upon the principle that an honest difference of opinion was to be tolerated. Judge HOGEBOOM occupied the highest position, as a citizen, for character and integrity, and was honored and beloved in the private relations of life. He has left a reputation of which any man might be proud, which is a rich legacy to his children and descendants. His career as a public man and a judicial officer reflected the highest credit upon his native county, with whose citizens he was always a favorite, and who, with a tenacity and zeal which is remarkable, stand firmly by their chosen sons, whom they delight to honor, and in whose success they feel an honest pride. He has gone to his final rest crowned with honors, in full possession of his intellect, and respected by the entire com- munity. And it may perhaps be said of him, as of others who have trod the rugged path of professional life and attained high distinction, that the work which engaged his attention bore too heavily upon him. But it is a satisfaction to realize that he has departed from the field of his labors with no duty undischarged, leaving to his brethren of the bar a professional and judicial reputation which points to his history as an example worthy of imitation by all who are following the same road to eminence and success. His name will occupy a place among the distinguished lawj'ers and statesmen who have conferred distinction upon MR. JUSTICE HOGEBOOM. 527 this county, and given to its bar almost a world-wide renown, not surpassed by that of any other locality in the country. It will stand side by side with those of the illustrious men whose memories we all cherish ; and while Van Schaack, Van Buren, Van Ness, Williams and Spencer will be remembered as the chosen representatives of a generation long since passed away, and Killian Miller, Monell, Bushnell and Jordan as those of a later period, HENRY HOGEBOOM will be considered as no unworthy successor to the fame of these distinguished and talented members of the bar those noble specimens of our race. On motion of Hon. Darius Peck, Frank B. Chace waa appointed secretary. On motion of Hon. J. C. Newkirk, it was resolved that a committee of five be appointed by the chair to draft and report suitable and appropriate resolutions for the occasion. The chair appointed the following named gentlemen as such committee : Hons. J. C. Newkirk, C. L. Beale, R. B. Monell, R. E. Andrews and John Cadman. The committee, through Hon. J. C. Newkirk, reported the following, which were unanimously adopted : Whereas, Almighty God, in his wise but inscrutable pro- vidence, has removed from the scene of his labors and tri- umphs our friend and associate, the Honorable HENRY HOGE- BOOM, then one of the justices of the Supreme Court of the State of New York, we, the members of the bar of Columbia county, of which he was so long an ornament, while we bow with submission and hope to the afflictive dispensation, desire to leave upon record some enduring manifestation of our love, regard and reverence ; therefore, Resolved, That in the purity, blamelessness and dignity of his life ; in the faithful discharge of the professional, official and other public duties from time to time imposed upon him ; in the legal ability and integrity always displayed by him as a member of the bar; in the eloquence and learning of his forensic and professional efforts ; in the soundness of his judgment and the wisdom of his counsel, he was entitled to and received the unqualified confidence, admiration and 528 ACTION ON DECEASE OF respect of his professional brethren and of the community at large. Resolved, That in his death not only have his professional brethren, and the community in which he lived, sustained a great and heartfelt loss, but the State at large has been deprived of one of her best citizens, her jurisprudence of one of its strongest pillars, the hand which held with firm and equal poise the scales from which justice was meted out to her citizens has been stricken down and withdrawn, and a disciplined and massive intellect, with its strong, native powers and stores of experience, has ceased to yield its bene- ficent influence in the administration of justice in this State. Resolved^ That as a citizen he was ever alive to the call of duty, and in all the relations of life, as a husband, a father and friend, he has left behind him a bright example of suc- cess, devotion and love, and a name without reproach, and in the cordial surrender of his heart to the religion of the cross, he has left to his family and the world an example wide in its influence and worthy of all emulation. Resolved^ That we deeply sympathize with the family of the deceased in their great sorrow and loss, and that a copy of these resolutions, properly attested by the officers of this meeting, be furnished them as a mark of respect for his memory, and of our condolence with them in their grief. Resolved^ That a copy of these resolutions be published in the papers of the city and county. Resolved) That the chairman of the meeting present these resolutions to the Circuit Court, now in session in this county, with a request that they be entered upon the minutes of the court. Pending the motion of R. E. Andrews, Esq., that the reso- lutions be adopted, speeches were made by members of the bar present, as follows : REMARKS OF HON. DARIUS PECK. 1 desire to offer my humble tribute to the memory of the deceaaed. "We came to the bar at about the same time, and my acquaintance with him is of about forty years' standing. Though familiar with the details of his life and history, they MR. JUSTICE HOGEBOOM. 529 have already been so well and fully stated in the public prints that an attempt, on my part, now to portray them seems to be a work of supererogation. He was known and respected here, as well as throughout the State, for his purity of character, his native vigor of intel- lect, his ability as a lawyer, and his many endowments and accomplishments as a judge of our highest courts. In the discharge of his judicial duties he justly earned the distinction of an upright judge. Always patient and courteous, and possessing in a high degree the gift of language, which he assiduously cultivated, and a fine delivery, he had few com- peers as a Circuit judge. In his exclusive devotion to pro- fessional and judicial duty, and in his many virtues as a man and citizen, he has bequeathed to us, and to his friends and family, the invaluable legacy of a good example of which we are all justly proud, and which is eminently worthy of imita- tion. REMARKS OF HON. J. C. NEWKIBK. ME. CHAIRMAN. Having made some remarks on moving the court on the first day of the session, to adjourn as a mark of respect to Judge HOGEBOOM, I had expected to have remained silent on this occasion and listen to others. But assembled here with the members of the bar of Columbia county, to express our appreciation of the character of our deceased friend, I am unwilling to let the occasion pass with- out making a few remarks. My acquaintance with this distinguished man was a some- what familiar one, if I may call it by no name implying nearer relations than mere acquaintance. It is a melancholy, although in some respects a somewhat pleasing duty, which we are assembled to discharge, to express our feelings and show our respect for the character of Judge HOGEBOOM. Few men ever so well deserved all the marks of respect that can be shown on such an occasion, whether we consider his character as a lawyer, a judge, a citizen, a neighbor or a friend. Judge HOGEBOOM for a long time occupied a prominent, LANSING VOL. VI. 67 530 ACTION ON DECEASE OF and probably the first position as a practitioner, at the bar of Columbia county. I became acquainted with him over a quarter of a century ago, and during the whole of the time that has intervened he continued to hold the very first position, first at the bar and then upon the bench. I practiced with him in the old Court of Chancery, when that court had an existence, and under the old organization of the Supreme Court, and also after the new organization of the judiciary of the State, and it can truly be said that Judge HOGEBOOM was equal to every occasion in which he was called upon to act in his profession. In his intercourse with his professional brethren he was always courteous, social and dignified. Judge HOGEBOOM had a high appreciation of the dignity of the legal profession. He was honorable in the discharge of all his duties, he was faithful and careful in the preparation of his cases. In his trial of causes at the Circuit, when at the bar, he made no use of any of the tricks to which some resort in the profession. He sought only to gain success by a fair and strong presentation of the facts in his favor, and we can all testify how successful he was in that respect. When Judge HOGEBOOM was called to the bench he was engaged in a lucrative practice, which he relinquished to assume the duties of a justice of the Supreme Court of the State of New York, and from that time until the time of his death, a period of fifteen years, he not only discharged faith- fully and honestly the duties of this high position, but he added to its honor and reputation. No one, to my knowledge, has ever whispered a suspicion as to the integrity and fairness of HENRY HOGEBOOM, as a judge. As a judge he established a reputation above suspi- cion. In his trial of causes, as a judge at the Circuit, he was pecu liarly happy ; he at once seemed to understand the true issues involved, and kept counsel from wandering off with irrele- vant matters. In his charges to juries, his arrangement and presentation of the facts bearing upon the issues were remark- able for their clearness, and were BO impartially given that it MR. JUSTICE HOGEBOOM. 531 was impossible for the jury or the parties to gather upon which side his opinion was. He believed that the ques- tions of fact- in a case should be left entirely to the jury, and that he had no right to interfere with their prerogative. Upon the law of the case, there was no doubt what his opin- ion was, for he stated it with wonderful clearness, direct- ness and force. In regard to the discharge of the duties of a judge in lane, his published opinions show that he had a remarkable power in expressing his views clearly and logic- ally, and his reported opinions are models of judicial learn- ing and excellence. By his industry, learning and powerful intellect, he at once took and maintained a high position among the judges of this State. His reputation as a judge is coextensive with the State. But Judge HOGEBOOM'S great- est reputation, is, that he was a pure, upright and honest judge. But we, of this, the native county of Judge HOGEBOOM, feel that we have met with a great loss in his death, not only as a lawyer and judge, but also as a fellow-citizen and neigh- bor. He was affable and kind in all his social relations in life, a cultivated and refined gentleman. In all public matters relating to the interest of the city in which lie resided, although he never took a very active part, his advice was often sought and uniformly cheerfully given, and proved to be eminently judicious. My intercourse with him in social life has been very pleasant. If I may be permitted to speak of such a matter here, I would say that for more than twenty-five years prior to the time of his decease we have attended the same church, and worshipped at the same altar. He was a regular attendant of the Reformed Church of this city, and always to be seen, in his seat in the church, on the Sabbath, unless prevented by sickness or absent from the city. He contributed liberally to the support of the Gospel, and the Reformed Church of this city has received many benefits from him in its tem- poral affairs. This church will mourn his loss. I remember that on several occasions his counsel and advice was sought by the church ; it was freely given and followed, and proved beneficial to the church. 532 ACTION ON DECEASE OF It is a sad but pleasant duty to stand here and testify, as I have endeavored to do, to my appreciation of the character of Judge HOGEBOOM, as a learned and profound lawyer, an able and honest judge, a good citizen, a kind neighbor and a sincere friend. REMARKS OP C. P. COLLIEB, ESQ. ME. CHAIRMAN. It is fit and proper that I should speak of Judge HOGEBOOM upon this occasion. For six years, from 1848 to 1854, he and I were associated as copartners in the practice of the law, in this city. Our business relations were always pleasant, and the bond of good feeling that existed between us while partners, was not ruptured by the dissolu- tion of the copartnership, but remained unbroken, down to the time of his death. It is a mournful pleasure to pay my tribute of respect to the deceased. I have known him in the pursuits of professional life, on the bench, and in social hours, and, in all, I learned to respect, admire and esteem him. Judge HOGEBOOM may be spoken of, with truth, as having been a good and affectionate husband, a kind and indulgent parent, a pure and upright lawyer, judge and citizen. He had that learning, that moral excellence, and that sound judg- ment, that give pre-eminence, and invite the encomiums of all. If the profession is, as one has said, like a forest, with here and there a tall tree towering above those of lesser growth, then was Judge HOGEBOOM a IToge-boom indeed a high tree, as the name signifies, in the language of his fathers. Judge HOGEBOOM possessed, in a great degree, all those characteristics that distinguish a true lawyer, and was pecu- liarly fitted for the bench, which he so ably filled for many years, and down to the time of his death. Endowed with rare intellectual gifts and a cultivated taste, his mind was stored with that knowledge and learning that so well quali- fied him for every position in life. His name will be handed down to posterity as that of a faithful lawyer, an able advo- cate and an honest judge, while his labors will live in hia works, and will not cease to operate upon the minds of men until the course of time is ended MR. JUSTICE HOGEBOOM. 533 REMARKS OF JOHN Y. WHITBECK, ESQ. It is, perhaps, most fitting that upon this sad occasion the elder members of our brotherhood should engross our atten- tion in recalling the greatness of him who is gone, and extol- ling the purity of his public and private life. Most fitting, because some of them were his contemporaries, and are quali- fied from long observation to speak accurately as well as feel- ingly of the many virtues of the deceased. Still, I would be doing violence to my inclinations should I permit this occa- sion to pass without adding my tribute of grief at our loss, and feeble voice in praise of the many excellences of our departed friend and professional brother. Judge HOGEBOOM was indeed a man upon whom nature had lavished many of her choicest gifts. He carried in his very form and stature the grace and stateliness which have marked so many- of the distinguished men of the earth. Of a most commanding presence, and lofty yet easy dignity of demeanor, he impressed every one who looked upon him with the conviction that he was in the presence of no ordinary man. To his grace and stateliness of manner, he added a depth and strength of mind that showed the casket to be in keeping with the jewels which it bore. It has been my choice privilege for some years to be on terms of somewhat close friendship with Judge HOGEBOOM, and frequently to enjoy his society both at the fireside and at table, under his own hospitable roof; and upon all of these occasions I never left him without carrying with me some new and lasting impression of his goodness of heart and greatness of mind. In social life he was an ornament to society, digni- iied, courteous, generous. But in looking back upon him, he seems to me to loom up particularly as one of the giant intellects of our profession. His career on the bench during the past fourteen or fifteen years has demonstrated him to the people of the State as one of the ablest jurists of the age. He evinced, in the perform- ance of his laborious and important duties as a judge, a most profound knowledge of the law, which, in his charges to the fury, or in his written opinions, was always coupled with a 534 ACTION ON DECEASE OF most complete and remarkable control of language precisely fitted to convey his meaning. He possessed also that method of mind, and clearness of mental vision, which enabled him, particularly at the Circuit, and on the spur of the moment as it were, to grapple with the most intricate questions, and brushing aside the cobwebs and technicalities of a case to lay hold and dispose of the vital questions involved. His charges to the jury were brief, pointed, able, and always master pieces of diction and reasoning, and must have often proved to the confused and varying minds of a jury a most welcome aid and guide. My brothers, this brilliant light in our profession has been suddenly extingushed, this master mind, with all its wealth of acquisition, with all its accumulation of legal knowledge, with all its stores of law's subtleties and mysteries, has been removed from us. It is in this sense especially that this community and the State have, in the death of Judge HOGEBOOM, been called to meet a grievous loss. But what is our loss is doubtless his gain, for if our Christianity teaches us anything, it is, that the man who cultivates the noblest of God-given faculties, and goes through a long life of public usefulness with no stain or suspicion of reproach upon it, must enjoy his reward at the last. REMAKES or HON. JOHN E. LONGLEY. Mr. CHAIRMAN : "Lives of great men all remind us We can make our lives sublime, And, departing, leave behind us Footprints on the sands of time. " Footprints, that perhaps another, Sailing o'er life's solemn main A forlorn and shipwreck'd brother Seeing, shall take heart again." In this presence, sir, and amid these surroundings with the sable emblems of funeral grief deepening the dark shadows of the real gloom that overpowers us, and the memories of the distinguished dead crowding in upon the sacredness of this solemn hour, I feel that it would better become me, as one of the humblest of his disciples, to retain my seat, and to weep in silence over the bier of the departed. MR. JUSTICE HOGEBOOM. 585 But when I recollect that, twenty-three years ago this very month, I stood, a mere stripling, at the door of Judge HOGE- BOOM'S office, and was received by him as his pupil, and he became my preceptor how many pleasant things he said and did how, four years later, when I presented myself at the General Term of the Supreme Court, as an applicant for admission to the bar, and he, having been appointed the sole examiner of candidates, certified to what, in the kindness of his heart, he was pleased to consider the sufficiency of my qualifications, and with his own friendly hand swung open the gate of the temple, and invited me to enter how, through all the years succeeding, he remained my steadfast friend, and I his warm admirer, I feel myself compelled to contribute some little twig or leaflet of personal affection for him, as a man, to the magnificent wreath which crowns his reputation as an able and an upright judge. I knew him well in the earlier, and perhaps happier period of his life, when the little circle of his family was rounded and complete, and when the seeming sternness of the counselor and advocate was softened down into the tenderness of a kind husband and indulgent father. And if this real tenderness of spirit did not always manifest itself to the outer world, if at any time his fellow-men have deemed him lacking in that warmth of heart, that inward glow of sympathy and feeling, which lavishes itself unasked for and unsought, and which goes out spontaneously toward everybody and everything, it was because the native dignity of his manners repressed it, and the exalted position which he so long occupied prevented its public exhibition. One must first stand where he stood, upon the dizzy height of fame, before he can comprehend or appreciate the require- ments and the incidents of the position. " He who ascends to mountain tops, shall find Their loftiest peaks most wrapt in clouds and snow ; He who surpasses or subdues mankind, Must look down on the hate of those below. " Tho' far above, the sun of glory glow, And far beneath, the earth and ocean spread, Round him are icy rocks, and loudly blow Contending tempests on his naked head." 53 J ACTION ON DECEASE OF Judge HOGEBOOM'S loves and affections ever shone mildly and sweetly, like the moon, and steady and . constant as the stars ; and although in the broad glare of day they paled into partial dimness before the dazzling sunburst of his prodigious intellect, yet after all, they burned, and glowed and sparkled still. To this inner, better, holier personality of our lamented friend and brother, I dedicate this feeble offering of the heart. For what he achieved in the realm of what men call fame, I honor him ; for what he was to the world at large, I admire him ; but for what he has been to me, who needed such a friend, 1 revere his memory and weep that he is gone. And now, ye blest and heavenly shades of the departed, vouchsafe to us some measure of the goodness and greatness in which he abounded, and grant that we, who are left behind, may emulate the virtues which he practiced while here, and that in the great hereafter we may be permitted to share with him in the glories of the ransomed and the just. REMARKS OF K. E. ANDREWS, ESQ. Mr. CHAIRMAN AND GENTLEMEN. I had been intimately acquainted with Judge HOGEBOOM, as advocate and judge, for many years before his death. He came into the profession with the Revised Statutes, in the year 1829, and his profes- sional career at the bar and upon the bench consequently occupied a period of about forty-three years about twenty- seven years at the bar, and about sixteen years upon the bench. For at least twenty years of the time that he was an advo- cate, in the strifes and contentions of the profession he occu- pied a position which was probably not excelled, if equaled, by any in the county of Columbia. Upon the bench he kept that position ; and his best position, both as a lawyer and as a judge, was conceded by every person who was familiar with his labors, to be an enviable one. He was an indefatigable worker in his profession; he believed in hard labor, and I think we cannot but attribute very much of the success which he attained in his profession to that fact, combined with his masterly intellect. He was MR. JUSTICE HOGEBOOM. 537 himself among the first to concede that the beginning and end of success in the profession of the law is labor and prepa- ration, and that, without the careful preparation of cases, no successful achievements of the lawyer can be obtained. He was possessed of a splendid physical and mental organi- zation, and consequently his professional labors were always cheerfully performed. He seemed to take real pleasure in the performance of duty in every theatre of action in which his professional abilities were called into exercise. In his efforts at the bar, in the examination of witnesses, in his summing up of cases to juries, and in his charges to juries, there was always seen a happiness and satisfaction in his man- ner which cast a glow of sunshine over the severely logical character which was generally manifested in his professional and judicial efforts, and which added very much to the effect of the argument, and of the legal efforts made in the dis- charge of his duties. As a lawyer and judge, while familiar with the cases, yet was he always bringing his legal questions to the test of those great landmarks the settled principles of the law. He believed with Lord COKE, " That the knowledge of the law is like a deep well, out of which each man draweth accord- ing to the strength of his understanding. He that reacheth deepest, he seeth the amiable and admirable secrets of the law." In his efforts, either as lawyer or judge, he had no particu- lar model, but built up the structure of his argument, begin- ning at the foundation, continuing it upon logical principles, and arriving at a conclusion satisfactory to his own mind, and which demonstrated the proposition which he set out to estab- lish. That manner of reasoning is always, I think, character- istic of a really great and well-balanced mind. There was much about his manner of the presentation of his argument in which he was quite original, and in respect to which he was a genius. He was no mere " case lawyer ;" he was a logical lawyer, using cases merely as auxiliaries in the great business which, as a lawyer, he had before him ; happily bringing into the structure of his argument all the graces of ornamentation, and LANSING VOL. VI. 68 538 ACTION ON DECEASE OF reflecting all the sunshine of his own overflowing, happy heart. In his friendships he was faithful, constant and confiding. Men of such natural powers, conjoined to such cultivation as that which Judge HOGEBOOM possessed, are very rare. They are marked and positive benefits to the age in which they live. They set forward the hands on the dial of principle, improve- ment and progress. They add to human knowledge, and the world is better for their having lived. But Judge HOGEBOOM could not always be with us. Tears before the time when his natural powers would have begun to decay, an acute disease seized him, and severed the con- nection between his body and his spirit. In the meridian of his strength, with his armor on, he was transferred to another world. The loss sustained is great great to his family, great to the public, and especially great to the honored profession of which he was so solid an ornament. His name will rank high among the distinguished lawyers and judges whose names grace the annals of the State of New York. And the point of proficiency which he attained in our ven- erable and noble profession will be a high mark for the ambi- tion of those who knew his virtues and aspire successfully to travel the road to professional excellence and eminence. REMARKS OF A. FRANK B. CHACE, ESQ. Mr. CHAIRMAN. I cannot hope, in anything which I may be able to say, to add even a flower to the rhetorical garland which has been so successfully twined by the gentlemen who have preceded me, and laid with willing hands and loving hearts upon the grave of our honored and illustrious friend. Still I am unwilling that this occasion shall pass and I remain entirely silent or merely a mourning spectator. Coming into practice at this bar after Judge HOGEBOOM had left the exalted position occupied by him for a long time within its circle, and taken his seat upon the bench, I was not permitted to know him as a practicing lawyer. My personal acquaintance with him began after he wat MR. JUSTICE HOGEBOOM. 539 upon the bench, and after he had come to be known and loved as the able and astute lawyer, the honest and uncom- promising judge, and the noble and patriotic citizen. It was not my privilege to witness the rising beauties of his sun of life, but rather to be dazzled by its meridian splendors. Meeting this distinguished judge under these circum- stances, and appreciating the wide distance between him and the young lawyer, struggling for footing and recognition within the bar, I can only wonder that it has been my proud privilege to count Judge HOGEBOOM among my personal friends. My intercourse with him, professionally and otherwise, has been marked with many courtesies and much kindness on his part. It was one of the distinguished characteristics of this noble man, that the young practitioner, instead of being frightened into stammering or frowned into silence by austere manners, assumed for judicial dignity, always obtained before him a patient and attentive hearing and received graceful conde- scension and kind courtesies at his hands. His dignity was nevertheless marked and never compro- mised. It was, however, not that assumed dignity which repels and offends, but that graceful dignity of manhood which becomes at once an ornament and an attraction, and Avins the heart while it impresses the judgment. The younger members of the bar in this judicial district have suffered a great and irreparable loss in the death of Judge HOGEBOOM. His was a peculiar mind. He seemed to take the points of a case almost by intuition. The briefest and most cursory statement of facts was seemingly sufficient for his great mind to appreciate a case in all its parts. He never lost the points of the case in the wordy war between counsel, or in his admiration for the eloquence of the advo- cate. This made him peculiarly the friend of the young lawyer. And then his great heart seemed to overflow with sympathy for the pains-taking, faithful young attorney, and he was ever ready with kind words, cheerful counsel and hopeful predictions to urge him on to renewed exertions and 540 ACTION ON DECEASE OF harder work. But I did not rise to pronounce his eulogy. Other and abler minds have shrunk from a task so mighty, and I will emulate their example. My purpose was briefly to express the great grief which the younger members of this bar so keenly feel in the death of our honored and revered friend. It is fitting that we should mourn, for we are indeed bereaved ; but let us not mourn as those without hope. Judge HOGEBOOM was a good as well as a great man, and he has gone 'to his great reward, where we must ere long, perhaps soon, follow him. His sun of life rushed from its meridian and went down in a blaze of glory. He has left us the rich legacy of a glorious example. Mourning his death, let us revere his memory, remember his virtues, emulate his example, and press vigorously on in the great race of life. Well has it been said by one of my brothers, who has pre- ceded me on this occasion, in the language of one of our greatest poets, and I desire to complete the quotation : " Lives of great men all remind us We can make our lives sublime, And, departing, leave behind us, Footprints in the sands of time. Footprints that perhaps another, Sailing o'er life's solemn main, A forlorn and shipwrecked brother, Seeing, may take heart again. Let us then be up and doing, With a heart for any fate, Still achieving, still pursuing, Learn to labor and to wait." Thus pressing on, let us not forget that "better part" which our deceased and lamented friend \vas so careful to assure us, in the closing scenes of his well-spent life, he had secured for himself : Then when our " summons comes to join The innumerable caravan that moves To the pale realms of shade, where each shall take His chamber in the silent halls of death." We may "go, not like the quarry slave at night, Chained to his dungeon, but sustained and soothed, By an unfaltering trust," we may approach our grave, Like one who wraps the drapery of his couch about him. And lies down to pleasant dreams." MR. JUSTICE HOGEBOOM. 541 REMARKS OF HORACE R. PECK, ESQ. MR. CHAIRMAN AND GENTLEMEN. In justice to my own feelings I cannot let this occasion pass without adding a slight tribute to the memory of Judge HOGEBOOM. As a young lawyer I can speak most feelingly of the uni- form courtesy and kindness, the unvarying sympathy and encouragement with which he treated the junior members of the profession. He had an especial fondness for young men. The reason of this may be found in the fact that while the wear and tear of a life of incessant industry prematurely aged his body, his heart and soul enjoyed perennial youth. He never became a fossil. This was a prominent attribute of his greatness. His nature was broad and deep, like a noble river upon which the fisherman's pinnace and the gallant ship glide with equal ease. Naturally fond of society, Judge HOGEBOOM'S peculiar suavity of manner and dignity of demeanor stamped him " a gentleman of the old school." His nature was chivalric ; he had the courage without the exclusiveness of the knight- errant. Never intentionally offending the feelings of others, he insisted that his own should be respected. He could never brook an insult. He was superb even in his hates ; for he hated lies and meanness most. To his profession he was devoted with the ardor of a lover for his mistress. Born with rare talents, education crowned him with genius as a circuit judge. Judge HOGEBOOM was an honest man the best verdict which either his profession or the public can pronounce. The motto of the Chevalier Bayard, the finest gentleman of history, might have been his " sans peur et sans reproche." Knowing him personally quite well for some years, both as magistrate and as man, I say with the utmost sincerity that our friend, who has so recently passed through the change which in blindness we call death, was a refined gentle- man, a warm friend, a just judge, and a great and honest man. My friends, Judge HOGEBOOM was of the breed of the heroes, born to replenish the world with the vigor it needs. " Strong hands that are ready for battle, True hearts that take comfort in life." 542 ACTION ON DECEASE OF When a great and good man dies it is fit that a funeral wail should ring over sea and over land, and ring back to " the tomb on the strand of the dead." Then " Heap lofty his grave, and in hero-song Chant loudly his fame in peace and in strife." But we owe a duty to ourselves. Let not death hinder the journey of life. ." When his work is finished, man yields his breath, The hero-song ends grandly then." And let us remember that " Like to the grass that's newly sprung, Or like a tale that's new begun, Or like the bird that's here to-day, Or like the pearled dew of May, Or like an hour, or like a span, Or like the singing of a swan, E'en such is man : who lives by breath, Is here, now there, in life and death. The grass withers the tale is ended The bird has flown the dew's ascended The hour is short the span is long The swan's near death man's life is done." REMARKS OF HON. C. L. BEALE. MR. CHAIRMAN AND GENTLEMEN OF THE PROFESSION. It had been my purpose to be silent on this solemn occasion, not owing to any want of interest, but from personal indis- position, and it will be with physical feebleness that I shall contribute the " mite " of my few words to add to the impres- sive and melancholy lesson of the hour. The offerings which have been made to the memory of the illustrious dead have been eloquent and appropriate. The garlands which have been laid by all these loving hands upon his bier have, in their varied beauty, fragrance and signifi- cance, crowned the dear departed as with the immortelles of love. His cotemporaries have spoken and imparted the inci- dents of his earlier professional career. His associates upon the bench, through the lips of our honored chairman, have spoken appropriately and eloquently of his judicial life and character. And our younger brothers, the junior members MR. JUSTICE HOGEBOOM. 543 of this bar, have with feeling and signal ability paid their touching tribute to the virtues of their and our ever to be lamented friend. To all that has been said, Mr. Chairman, I would add from the depths of a heart penetrated with profoundest grief, an emphatic, a solemn Amen ! The merit and aptitude of such eulogies, as well as my own illness, admonishes me to forbear, but the loving and gentle memories which have been stirred in my bosom by the solemn admonitions of the moment, urge me irresistibly to add my leaf to the ever green chaplet which we are twining for the brow of the dead. My personal acquaintance with Judge HOGEBOOM com- menced about twenty years since, and for the last fifteen years that acquaintance has been peculiarly intimate and cordial, owing mainly to his own generosity, geniality and urbanity. From the first I was drawn toward him by the " affection of admiration" I had been a witness of his industry and cour- tesy in his office, and of his consummate ability at this bar. I had been edified by his argumentative power and profound learning, as displayed at General Term and in the Court of Appeals, and had sat spell-bound beneath the magic and per- suasive force of his eloquence before juries. At an early period of his acquaintance, I became his junior in litigated cases, which my clients and myself committed to his care and management as counsel, and this relation con- tinued up to the period when he took his place upon the judi- cial bench. During all this intercourse, Judge HOGEBOOM was ever generous, courteous and considerate toward me. In speaking of his character or demeanor as a gentleman, no eulogy would be deemed extravagant by any one who knew him. A descendant of the old Knickerbocker stock, he partook largely of the self-respect, dignified bearing, ease, grace and courtly manner which so eminently characterized that proud, pure race. His mind possessed peculiarly refined instincts, and had been cultivated by a liberal education, and lo social intercourse, and to his professional exertions he brought all the varied treasures of such culture, acquisition and discipline- No one ever approached him, grasped his 544 ACTION ON DECEASE OF hand, crossed his threshold, enjoyed the pleasures of his hospitable table, where, in the language of Curran, " the hori- zon of the board was elevated and expanded to the horizon of man," without forming a high and appreciative estimate of the gentleness and sweet attractiveness of his nature. As so eloquently remarked by the gentleman who immediately preceded me, he had in a marked degree those peculiar characteristics of mind and heart which shrunk from aught that was base, dishonorable or mean. He possessed what Mr. Burke so delicately and with dis- crimination terms, " that chastity of honor which feels a stain like a wound," and while he was carefully considerate of the feelings of others, he always, and with dignity, demanded the same consideration for his own. As a professional gentleman he was for many years the conceded leader of our bar, and we all, who have attained any age or experience in our courts, have witnessed his repeated triumphs at that bar. Not only in this forum, but also in that of adjoining counties, he stood emphatically in the foremost rank of his profession. His efforts before juries, at General Term and in the Court of Appeals, were all mas- terpieces of legal lore, of polished diction, and of logical dis- criminations. In legal argumentation, and in his judicial charges, he exhibited a peculiarly subtile power of analysis, and I have listened with wonder and delighted surprise to many of his arguments in our higher courts, and to that remarkable analytical power which he displayed in what I may, perhaps, somewhat fancifully term his ante mortem dissection of a case, and to his skillful application of appropriate principles of law. In his consideration of legal questions he was " cribbed and confined " by no technicalities, mere adjudications or paramount and decisive precedents, but contemplated and applied broad, far-reaching and all-underlying principles of common and constitutional law. In his addresses to juries, while he appeared at first somewhat lymphatic or apathetic, yet, as he became aroused and interested, his mind glowed with terrible fervor, and grasped and controlled the minds and souls of the twelve with a grandeur, power and effect MR. JUSTICE HOGEBOOM. 545 which was overwhelming ; and especially when his feelings had become interested on behalf of the weak and oppressed, or when the wrongs of the fairer and better sex were to be redressed, the proud, fine chivalry of his temperament, and the aroused energy of his nature, gave him distinguished force and success. As a judge, the shrouding lawn which to-day robes his pulseless clay was not purer than the heart that now lies cold beneath its folds, or the ermine which fifteen years ago was placed upon his shoulders, and which but a few days since was removed by the hand of death. No one ever suspected his probity or impartiality ; no one believed that fear or favor ever actuated him in aught that he said or did or omitted to do. Unapproachable, pure, exalted, the incarnation of justice, he embodied and exemplified the full meaning of that other phrase of Mr. Burke : " The severe neutrality of the impar- tial judge." While thus dignified and impartial, he was, at the same time, in his high position, one of the most urbane, suave and considerate of men, and ever concilatory, patient and full of abounding charity and kind feeling. With regard to his bearing toward the younger members of our profession, this was peculiarly true. Indeed, at times it was almost paternal. Never by harsh word, offensive or cold look, or repelling gesture, did he wound or chill the modest ardor or anxious and timid solicitude of a youthful lawyer's heart. Endowed with all these graces and qualities, he was admirably adapted to preside at Circuit. His judicial reasonings at General Term and in the Court of Appeals stand monumental records to his merit and fame in the books of authorities of our State. His command of elegant, precise and forceful language renders those enduring records not only graceful as Grecian columns, but as strong to sustain the overlying pressure of the mighty structure of human rights. This command of language was, with Judge HOGEBOOM, the result, in part, of careful and exhaustive study. I well remember that, in a not distant social interview with him, conversation turned upon the use of appropriate Ian- LANSING VOL. YI. 69 546 ACTION ON DECEASE OF guage in the arduous duties of the forensic advocate. He remarked to me that the English language had been with him a peculiar study for years, not only in its classics, the works of Shakspeare, Milton, Johnson, Burke and Chatham, but also in those technical works on the definitions and synonyms of the language ; and, taking from his library the work of Rouget upon that subject, he informed me that he had worn out three numbers of the book in their study, and that it was a vade mecum with him wherever he went. The volume of the work which he then presented to me I shall ever cherish as a valued souvenir of the interview. In this study of language he resembled that consummate master of English, John Quincy Adams, who, for forty years, had read ten pages of Webster's Unabridged every morning. In his conduct of criminal, and especially capital trials, perhaps the great qualities of Judge HOGEBOOM'S mind became most conspicuously pre-eminent. Never shall I forget the dignity, propriety and power with which, as a judge at Oyer and Terminer, he conducted the trial of Edward H. Ruloff, in the county of Broome. Although his decision and charge were adverse to my client, he rose hourly in my respectful esteem, until, in his charge and sentence of the prisoner, his judicial eloquence and force became sublime and all-subduing. Remembering, as many of us must do, the elegant tribute to his memory and virtues pronounced at his funeral obse- quies, and the allusion to his judicial style of composition then made, I have deemed it not amiss to present to my brethren here an extract from his charge to the jury in the criminal matter to which I have adverted. In alluding to the nature of circumstantial evidence, and to the nature and power of truth, he used the following language to that jury : "Circumstantial evidence, where the circumstances are numerous, and where they tend directly to a single point, often furnish a body of evidence of the most satisfactory character. Of course they must have these characteristics, in order to have weight or determine your minds conclusively in a particular direction. But if they are of that character if they go to support and corroborate the positive evidence MR. JUSTICE HOGEBOOM. 547 in the case they are often of that nature which will lead your minds inevitably to a particular conclusion. With these facts and circumstances, thus developed in evidence, to lead your minds to a particular result, they furnish but another illustration of the great truth, that 'truth is mighty and will ultimately prevail.' She may be for a time defeated and overcome ; she may be obscured by the clouds of ignorance, of sophistry and of falsehood ; but she will ultimately assert her supremacy, and shine forth jn the undiminished bright- ness of her nature. Coming from God as her source, return- ing to Him as her ultimate aim, she meanwhile walks majes- tic and serene in all the pathways of human action, bringing light out of darkness and order out of confusion, and, sooner or later, asserts her irresistible power in all the transactions of men. " If, in this investigation, your conclusion is favorable to the prisoner, it will be your appropriate and pleasing duty to discharge him from imprisonment. I leave him to the admo- nitions of his own conscience and to tho impressive lessons of the hour. If, after the same patient attention to and solemn consideration of the testimony, you shall be obliged to bring your minds to a different result and declare his guilt, I have no doubt you will do it with the same solemnity, the same fearlessness, the same impartiality which should characterize in all cases the actions of men placed under the solemn respon- sibility under which you act. In this confidence, gentlemen, I commit this case to you for its final disposition." Sentiments of this kind, extemporaneously uttered, show the culture, discipline and power over language, and the noble soul possessed by our distinguished friend. I will now beg leave, Mr. Chairman, to call attention to the language and sentiments of the deceased in passing sentence of death upon the same unhappy prisoner : " We do not desire to add a single unnecessary pang to the painful sensibilities of this hour. The throng of bitter mem- ories which crowd upon the anguished head at such a moment, are of themselves well-nigh enough to overwhelm and crush it. It is, however, not improper to remark, even at such a time, that the killing of Mirrick was perpetrated under cir- 548 ACTION ON DECEASE OF cumstances of peculiar atrocity, and though he is beyond the reach of human sympathy, we do not deem it amiss to record, in this public manner, our sense of his unfaltering fidelity to the interests committed to his care. Nor do we deem it proper to recur to your past history. We only know of it as registered in the judicial annals of our State, and to some slight extent in common tradition. If there be anything in it to stir up painful memories, they are doubtless indelibly impressed upon your mind. The commission of crime carries its own punishment with it, and the agonies of remorse and the sting of a guilty conscience can no more be permanently expelled from the human heart than the vital current which courses through it. These are things of the past. * Let the dead bury their dead.' It is not to the past but to the future that your thoughts should be directed. The past is irrevoca- ble ; no earthly power can reverse its history. The future may have a gleam of hope even for the outlaw and felon. To that future we counsel you to devote the remaining hours of your life. If we have committed no mistake, they must necessarily be few all too few, even if rightly employed and not curtailed by the inexorable demands of justice, to make fitting atonement for the misdeeds of the past. Let the remnant of your life be devoted to that task. There is mercy in Heaven for the penitent and the contrite. We may not be able to bestow it here, but in that final tribunal, whose judgment cannot be reversed, and from whose decis- ions no appeal can be taken, the secrets of all hearts shall be made known ; the untold history of all lives shall be revealed, and our doom forever sealed." I read these extracts not only as specimens of the peculiarly ornate, yet chaste and elevated style of Judge HOGEBOOM, but as showing how an all-pervading sense of moral responsi- bility ever possessed his heart and characterized his actions. There was no stain upon the fair fame of the deceased hia moral, as his social and professional life, ever moved in a pure and elevated sphere, and he was good as he was great. It is also sweet to know that, when the last great trial came for him, and when face to face with the dark monarch who never relents, whose " golden scepter that he may live " is MR. JUSTICE HOGEBOOM. 549 never held out, our departed friend met the final enemy with, all the hope, courage and fortitude which Christian confi- dence can give to the human heart. And thus he passed to his great reward. And while we cherish his memory as an able advocate, an erudite lawyer, an upright, consistent and spotless jurist, we also cherish that dearer memory of a true friend, a patriotic citizen and a cultured, chivalric, Christian gentleman. And, brethren of our noble profession, desolated as we are by this dread bereavement, heart-sore and heart-heavy, and (in the language of one of our most refined, elegant and tender cotemporaries) " while we may yet wander darkling in this hour of night, let us gather up whatever of strength may be left to our souls in this solemn and sweet assurance that our friend is already in the higher paths, ascending to the courts of a superior life, and is alike sacred in the influence, and beautiful in that mystery of the futurity which at once enshrouds and adorns him." REMARKS OF HON. JOHN CADMAN. MR. CHAIRMAN AND BRETHREN OF THE BAR. I came here more to listen than to speak as one among the comparatively younger members of the profession. I hoped and expected to listen on this occasion to more of the older members, those whose career has been more immediately cotemporaneous with that of our illustrious brother who is dead ; and among all the sad thoughts that cluster around this melancholy occasion, the question has forced itself upon my mind, are they, too, pass- ing away ? and are we to behold no more the familiar, cheer- ful, loved and honored faces of Gaul and "Tobey among us ? And, it certainly cannot be regarded as out of place here to express a wish and earnest prayer that for many years to come this idea shall not be made a reality. For more than twenty years I have known and honored and loved HENRY HOGEBOOM, and during all that time he has been one of the very few whose every act and word has been regarded by me as a model and example worthy of imitation. And if any of us, at any time, in striving to imitate his exam- ple, have, in our imagination, attained a position where HENRY 550 ACTION ON DECEASE OF HOGEBOOM has once stood, we have still bad to look for him higher up and further on. And so he has continued to lead us on to higher hopes and nobler aims, until he lias himself passed out of our light to a higher and nobler field of labor, of which we know but little save by faith. We may justly be proud and rightfully boast of the long line of illustrious names that in the past have belonged to the Columbia county bar, and which now occupy high places on the scroll of fame in the history of our country, and 'tis well that we meet on an occasion like this to enumerate and eulo- gize the many virtues of our departed brother. But nevertheless, it is, in my opinion, a common fault, that while we extol the virtues of the dead and the glories of the past none too much, we are all too apt to overlook the sub- stantial worth and value of the present, and the glorious hopes and prospects for the future. 'Tis well that we do with appropriate ceremonies bury our dead out of our sight, and record their names with appropri- ate eulogies upon our records. Yet, when we have fully per- formed all these sacred duties which /we owe to the dead, it is better that we should cease to mourn, and turn our atten- tion once more to the living present and see if we c:m fill the vacant places. I am not of those who believe that all that is virtuous and noble and good belongs to the dead past ; or that we are doomed to rest under the degrading imputation of being degenerate sons of these noble sires. No, my brethren, let ns banish such thoughts if we have them, and once more buckle on the armor and resolve to imitate the best examples of our illustrious dead by doing all our duty here. And then I believe there are those sitting around me here young men, more than one, who, when they shall have finished their course, will leave names that shall in the future be mentioned here along side of Elisha Williams, Martin Yan Buren, Joseph D. Monell, Ambrose L. Jordan, Killian Miller and Henry Hogeboom. MR. JUSTICE HOGEBOOM. 551 REMARKS OF "W. C. BENTON, ESQ. " No wanting of fire, no quenching of ray, But rising, still rising, when passing away." "For the stars on our banner, grown suddenly dim, Let us weep in our darkness, but weep not for him, Not for him, who departing, left thousands in tears ; Not for him who has died full of honor and years ; Not for him who ascended Fame's ladder so high, From the round at the top he has stepped to the sky." The great lawyer, the great jurist, the man of great brain and great culture his mind stored with the deepest lore of the law, full of the nicest distinctions and the subtlest analysis ; the hero of many a great conflict in the forum; the great intellect holding on high for years with the nicest and purest balance the scales of justice; the urbane, polished gentleman and noble Christian man has fallen fallen in the zenith of his powers in the height of his glory. Where is there left among us the mind so broad and capa- cious so richly stored with legal and classic learning the brain so teeming with nice distinctions so rich in elaborate analysis ; where the gentleman, so chivalric in his devotion to all that is pure and good and noble in man or woman, who stands so like one of the old knights in the best days of chiv- alry, clad in complete armor sans peur sans reproche, with lance in rest ever ready to shield the right and to oppose the wrong ? It is somewhat difficult, in a character which presents so many sides of highest polish, to select that which all will agree shines the brightest. Perhaps the most remarkable of all his mental traits, amid all his store of legal principles, and the great depth and breadth of his erudition, was his per- fect clearness the sharpness and nicety of his distinctions, and the ease, weight and power with which, in charging a jury or summing up a lengthy and important cause, he made the most perfect analysis of the greatest mass of evidence, and the clearest explanation and definition of every issue unfolded every proposition of law or fact, all in the most elegant, pol- ished and perfect diction, and finally submitted the case to 552 ACTION ON DECEASE OF the jury in a light as clear and lucid as the purest water under the summer sunshine. But why speak further of his great mental or moral quali- ties ? Many views have been taken of his character by others, and none can be complete. We have known him better than we can describe him feel what he was far better than we can tell. We can only in deep sorrow mourn his loss, and drop a flower upon his grave. Standing by that quiet grave on the green hillside of our beautiful cemetery, gazing far off on the grand panorama of those eastern hills, we shall often contrast the glory and gran- deur, the triumph, the excitement, the labor and unrest of his life with the quiet of his sleep. " His part in all the pomp that fills The circuit of the summer hills Is that his grave is green." He has left behind him the memory of his greatness, his nobility, his achievements and his virtues a long train of light the last level rays of the setting sun ; but here his rest is sweet and still. With the green grass growing above him with the rain and the sunshine alternately beating upon his grave he awaits the resurrection of the just to the life eternal. " When Spring, with dewy fingers cold, Returns to deck that hallowed mould, She there shall dress a sweeter sod Than Fancy's feet have ever trod ; By fairy hands his knell is rung By forms unseen his dirge is sung. There Honor comes a pilgrim gray To bless the turf that wraps his clay ; And Freedom shall awhile repair To dwell a weeping hermit there." The resolutions were thereupon unanimously adopted. On motion of J. B. LONGLEY, Esq., Jtesolved, That the Committee on Resolutions be consti- tuted a committee to attend to the publication thereof. On motion of Hon. C. L. BEALE, Jtesolved, That the members of the bar wear the usual badge of mourning, consisting of a knot of crape upon the MR. JUSTICE HOGEBOOM. 553 left breast, during the present term of the Circuit Court now in session. On motion, Resolved, That a copy of these proceedings be published in the county papers. On motion, the meeting adjourned. THEODORE MILLER, Chairman A. FRANK B. CHACE, Secretary. On Tuesday morning Judge MILLER presented the resolu- tions to the Court and moved they be spread upon its minutes. Judge DANFORTH received the resolutions and spoke as follows : It is appropriate and becoming that official record be made of the expression of esteem for the late Judge HOGEBOOM, which is now presented on the part of the bar of Columbia county. The Court, therefore, readily grants the request that the resolutions be entered at large on the minutes, and adds its concurrence with the sentiments which they contain. HENRY HOGEBOOM was a Christian gentleman, an eminent jurist and a just judge. His mind, by nature of the highest order, was developed, trained and strengthened early in life by earnest and laborious study, and later at the bar by con- tact and contests with the first legal minds of the State. He was able and successful as a lawyer, and came to the bench learned, clear-minded and discriminating. He won golden opinions for his courtesy, patience and ability. His felicity of expression was remarkable. His oral opinions were clear, concise and of beautiful diction; but through his published opinions, which are his enduring monument, his praise is in all our libraries. In personal character and manners Judge HOGEBOOM was pure, unselfish, kind, gentle, cordial to his friends, a light and ornament in the social circle. It was my fortune to know him for twenty-five years as lawyer, judge, master in chancery, legislator and justice of this court. I have enjoyed his hospitality at his home and have welcomed him in mine. During all these years I overlooked up to him as a good and LANSING VOL. VI. 70 554 ACTION ON DECEASE OF MR. HOGEBOOM. great man and a delightful associate. As we loved him in life, so we mourn him in death. Until the last he faltered not in duty not in will but only in strength " Like a tree, That with the weight of its own golden fruitage Stoops gently to the dust." Without a cloud, in full brightness, his sun went down only to rise again amid the splendors of eternal day passing directly from his well-done duty on earth to the repose and reward of the Kingdom of Glory. His loss will be long and deeply felt by the bench and by the bar, and by all who knew him. The clerk will enter the proceedings presented, with this memento by the court. INDEX. ABORTION. See WITNESS, 4. ACCIDENT. See NEGLIGENCE, 5, 6. ACCIDENT INSURANCE. See INSURANCE, 5, 6, 7. ACCOUNTING. See COUNTER-CLAIMS, 3. EXECUTORS AND ADMINISTRA- TORS, 4, 5. TRUSTS AND TRUSTEES, 7, 13. ACCOUNTS. See EVIDENCE, 18, 20, 21. EXECUTORS AND ADMINISTRA- TORS, 4, 5. ACTION. See ARBITRATION AND AWARD, 1,2. ASSESSORS, 8, 9, 10. COMMON CARRIER, 7. COUNTER-CLAIM, 1. COUNTY TREASURER, 1 to 4 DEED, 7, 8. EQUITABLE ACTION. EVIDENCE, 2, 6. EXECUTION, 1 to 5. INNKEEPER. INSURANCE, 15, 16. See JUSTICE OP THE PEACE, 1. LANDLORD AND TENANT, 4. LINE FENCES, 1. MANDAMUS, 2, 3. MISTAKES OP LAW AND FACT, 3. NEGLIGENCE, 2, 3, 4. NUISANCE, 2. PARTITION OP REAL ESTATE, 1, 2,3. PLEADING, 2 to 6. PRINCIPAL AND AGENT, 4, 5, 6, 8. PRINCIPAL AND SURETY, 1, 2. SERVICES. TAXES, 1. TRUSTS AND TRUSTEES, 7 to 15. WARRANTY OP CHATTELS, 1, 2, 3. ADJOINING OWNERS. See DEED, 7, 8. ADJOURNMENT. See PARTITION OP REAL ESTATE, 10. ADMEASUREMENT OF DOWER. See DOWER. ADMINISTRATOR WITH THE WILL ANNEXED. See TRUSTS AND TRUSTEES, 14. ADMIRALTY JURISDICTION. See JURISDICTION, 1. 556 INDEX. ADVERTISEMENT. See FORGED CHECK, 3. AFFIDAVIT. See ASSESSMENT ROLL, 1 to 4. ASSESSORS, 3 to 8. AFFIRMANCE. See BOND, 1. AFFIRMATIVE RELIEF. See COUNTER-CLAIM, 1. AFFIDAVITS. See RAILROAD MUNICIPAL BONDS, 2 to 5. AGREEMENT. See COMMON CARRIER, 1 to 7. CONTRACT. ALBANY COUNTY. See CRIMINAL LAW, 7. ALTERATION. See PRINCIPAL AND SURETY, 1, 2. ANSWER. See COUNTER-CLAIM, 3, 4. PLEADING, 1. APPARENT TITLE. See ASSIGNMENT, 1, 2. APPEAL. , 1, 2. DAMAGES, 3. DOWER, 4, 5, 6. PRACTICE, 1. WITNESS, 5, 6. APPENDIX. IN MEMORIAM, HENRY HOGEBOOM. APPLICATION FOR INSU- RANCE. See EVIDENCE, 7,8. APPLICATION OF PAYMENT. See STATUTE OP LIMITATION, 2, 3, 4. APPURTENANCES. See EASEMENT, 2, 3, 4. ARBITRATION AND AWARD. By an award made upon submis- mission to arbitration, by plaintiff and defendant, the defendant was bound to make certain excavations provided the plaintiff contributed one-third of the expense of so do- ing. It appeared that defendant made, after the award, a portion of the required excavations and call- ed on plaintiff to contribute one- third of the expense, and plaintiff refused to do so. That defendant then offered to make all the exca- vations which plaintiff should re- quire to be made if he would pay one-third of the expense, and plain- tiff refused to pay anything on ac- count of such excavations, and notified defendant that if he made them he would never pay any por- tion of the expense. Held, that the things to be done by the respective parties under the award were in the nature of con- current acts or covenants, and that under the circumstances the de- fendant was justified in refusing further to perform the award, and an action for non-performance could not be maintained. Perkins v. Giles. 437 INDEX. 557 ASSESSMENT OF TAXES. See ASSESSORS. ASSESSMENT ROLL. 1. To render an assessment roll ille- gal by reason of defects in the affidavit of the assessors annexed thereto, the defects must be of substance and not of form merely. The omission of words not essen- tial to the substance of the affida- vit prescribed by statute is not a fatal defect. National Bank of Chemung v. City of Elmira. 11G 2. Nor is it a fatal defect if the affi- davits have no venue. Id. 8. Nor if the affidavit was sworn to before an officer different from the one prescribed by the statute, but duly authorized to administer oaths. Id. 4. Assessors having jurisdiction, their action cannot be attacked collaterally. Id. See RAILROAD MUNICIPAL BONDS, 4. ASSESSMENTS. 1. By the Brooklyn city charter (Laws 1854, chap. 384, tit. 4, 24, etc.), the assessors for street assesk- ments, after hearing parties interested, are to make a report, with the objections presented to them, which the common council are to refer to a com- mittee, who, after a hearing pur- suant to notice published, are to report to the common council. Held, that the omission of the committee to publish notice pf hearing was fatal to the assess- ment. In the matter of the petition vfNatfianiel Fox. 92 2. Held, also, that the act of 1871 (chr.p. 483), limiting the authority of the court, in a case of irregular- ity, to a reduction of assessments to the extent of its increase by the irregularity, though retroactive, was inapplicable. Id. 3. A local assessment for street improvements is not a tax, within the meaning of article 7, section 13, Constitution, which requires every law imposing a tax to state the tax and its object, &c. Id. 4. The statutory requirement in the charter of Brooklyn ( 5, &c., tit. 4), that a district of assessment shall be laid out preliminarily, is a restriction merely on the power of the common council in respect to work ordered by them. Id. 5. Commissioners having an option as to the kind of pavement to be used for streets, but required to give the work after advertising for proposals to the lowest bidder, may determine the particular kind to be laid down, by inviting pro- posals for different kinds, and thereupon awarding to the lowest bidder for the kind selected. Id. 6. The resignation of commis- sioners appointed by the statute of 1868 (chap. 460), authorizing re- pavement, &c., of a street in Brooklyn, and their employment on and compensation for part of the work authorized, will not, in the absence of proof of fraud or injury to the public interests, vitiate the assessment, but the sums embraced in their assessment for their compensation is to be de- ducted from the assessment under the law of 1871 (chap. 483). Id. 7. Whether the designation, by the common council of Rochester, of the portion of that city deemed to be benefited by a public im- provement upon which they have determined, and their order direct- ing the assessment upon all the owners and occupants of lands and houses within the portion so designated (see charter, L. 1861, 191, 192, &c.), prohibits the assessors from omitting from assessment such parts of the de- signated territory as they regard as receiving no benefit, quere. Has- san v. T/ie City of Rochester. 185 8. And whether the question may be raised in an action to have the tax declared void, and to restrain 558 INDEX. its collection, the common council having confirmed it. Id. 9. But 208 of the charter, which declares all assessments for local improvements valid, notwithstand- ing irregularity, omission or error in the proceedings relating to the same, renders the assessments valid although such omission is made. Id. 10. Under the charter of Kochester city, which authorizes the appor- tionment of an excess of sums received for assessments for city improvements ( 207, Laws 1866, chap. 148), such assessments may be collected beyond the actual cost of the improvement, if within the estimate made pursuant to section 191. (Id) Fisher v. City of Rochester, 225 11. The city cannot credit itself with materials taken from the street by its .contractor in paying him for the work. They belong to the owners of the fee of the street. Id. See ASSESSORS, 8 to 12. ASSESSORS. 1. A writ of certiorari issues to cor- rect an erroneous assessment, made by the assessors. People v. Assess- ors of Village of Mechanicville. 105 2. The application of the rule for the assessment of property belonging to corporations, in People v. Assess- ors of Brooklyn (39 N. Y., 81), is not affected by the fact that the real estate of the corporation is entirely within the assessors' juris- diction. Id. 3. When the evidence presented to the assessors by an applicant for the reduction of assessments is uncontradicted and the facts clear beyond dispute, they must be governed by such evidence. Id. 4. And they should hesitate to dis- regard the positive affidavit of the applicant, and direct proof. Id. 5. But where from information re- ceived from others and the affi- davits they are led to disbelieve the sworn statements of the appli- cant, the information is a proper subject for their consideration. Id. 6. Whether the omission to inform the applicant ofexparte affidavits, considered by them, would not affect the assessment, quere. Id. 7. But such affidavits are not to be regarded as a part of the proceed- ings of the assessors, upon certio- rari brought to review such pro- ceedings, if it does not appear that they were read as evidence by the assessors, and considered by them in making their decision. Id. 8. After jurisdiction acquired, assess- ors act judicially in determining upon the amount of the assess- ment, the right to exemption and the liability of the property to assessment, and are not liable for error in the determination. Pal- mer v. Lawrence. 282 9. But assessors must make their assessment at the peril of being made personally responsible if they assess persons who are not inhabitants of their town. Id. 10. Accordingly, where trustees of a school district erred in determin- ing that the plaintiff was assess- able as an inhabitant of their school district where he had taken up his abode temporarily, and assessed him for school purposes, they were held liable for sale of his property under their warrant for collection of the tax. Id. 11. The cases where inferior tribu- nals and officers of limited juris- diction are required to proceed upon proofs presented to them, and those in which they act ex parte, in determining the question of their jurisdiction, distinguished. Id. See ASSESSMENT ROLL, 4. ASSIGNEE IN BANKRUPTCY See ATTACHMENT, 8. BANKRUPT LAWS, 1, 2. INDEX. 559 ASSIGNMENT. 1. The owner of a certificate of in- debtedness to him for $10,000 by the State made a written transfer upon the certificate of " the within described amount, say $10,000." Held, that he could not recover possession of the certificate from the assignee of his transferee upon the ground that the latter had agreed to return it in certain con- tingencies which had occurred, and of fraudulent representations in obtaining the transfer, the assignee having no actual know- ledge of the agreement or fraud. Mocre v. Miller. 396 2. The case of McNeil v. Tenth National Bank (46 N. Y., 325) held applicable and followed. Id. See CREDITOR'S BILL, 2 EVIDENCE, 11. MORTGAGE, 1. NOTES AND BILLS, 9. ASSOCIATION. See COMMON CARRIER, 7. ATTACHMENT. 1. In cases where an attachment is issued, sale of the attached pro- perty under execution upon judg- ment in the action confers no greater title to it than the debtor had at the time the judgment was docketed. Lamontv. Cheshire. 234 2. And (per MULLIN, P. J.), a special execution should be issued in at- tachment cases, directing the sale of the debtor's interest in the at- tached property as of the day of the levy of the attachment. Id. 3. The clause of section 132 (Code), by which subsequent purchasers and incumbrancers are bound by all proceedings in the action taken after the filing of the Us pendens, to the same extent as if they were parties to the action, is not appli- cable to attachment cases. (Per MULLIN, P. J.) Id. 4. An attachment upon shares of bank stock, and other property in- capable of manual delivery, can only be executed' where the pro- perty is held by a corporation or association, by leaving a certified copy of the warrant with the offi- cers or managing agent of such association or corporation, men- tioned in section 235 of the Code. Pardee v. Leilch. 303 5. It is not a good execution of an attachment, under that section, if the warrant is left with a person not an officer or managing agent of the association, who forwards it by mail to such an agent, by whom it is received. Id. 6. It is ground for setting aside a sale of bank shares, under execu- tion issued upon a judgment in an action, that the shares have not been attached at the commence- ment of the action. Id. 7. The proper and only remedy of the judgment debtor, whose shares have been unlawfully sold under the execution, is by motion to set aside the sale. Id. 8. Where an assignee in bankruptcy of such judgment debtor has been appointed, he represents not only the debtor but also his creditors, and therefore is the proper person to make such motion. Id. 9. One who has, by assignment from the purchaser at the sale, become vested with the interest of such purchaser in the property sold, is a proper and necessary party to such motion. Id. See Lis PENDENS, 1 to 5. AUTHORITY. See PARTNERSHIP, 1 . PRINCIPAL AND AGENT, 1, 10, 11. AWARD. See ARBITRATION AND AWARD. INDEX. BANKING CORPORATION. See PRINCIPAL AND AGENT, 4, 5, 6. BANKRUPT LAWS. 1. An assignee in bankruptcy may recover assets which the bankrupt has fraudulently concealed from his creditors, although the appli- cation for discharge was granted after opposition on the ground of the same fraudulent concealment. Jones v. MilbanJc. 73 2. The proceedings on application for the bankrupt's discharge are, it seems, conclusive only in that proceeding. Id. 8. In an action upon a contract for the recovery of damages for an alleged breach, a trial was had and a decision rendered in favor of the plaintiff and judgment ordered thereupon. Before the trial and decision a petition in bankruptcy was filed by the defendant, and, after the actual entry of the judgment, defendant obtained his discharge in the bankruptcy pro- ceedings. Held, that the defend- ant was discharged from the judgment by the discharge in bankruptcy. Monroe v. Upton. 255 4. The defendant, having had no opportunity to plead his discharge in the action, a motion to set aside an execution issued upon the judg- ment, and for a perpetual stay thereof, was his proper remedy. Id. See ATTACHMENT, S. INSURANCE, 17. BANKS AND BANKING. See FORGED CHECK, 1, 2, 3. BILL OF PEACE. See EQUITABLE ACTION, 1. BILL OF LADING. See COMMON CARRIER, 11. EVIDENCE, 3.1 BILL QUIA TIMET. See EQUITABLE ACTION, 1. BILLS OF EXCHANGE. See NOTES AND BILLS, 8, to 11. BONA FIDE HOLDER. See ASSIGNMENT, 1, 2. FORGED CHECK, 1, 2, 3. INSURANCE, 16. NOTES AND BILLS, 1, 2. PRINCIPAL AND AGENT, 6. BOND. 1. The satisfaction of a judgment affirmed in the Court of Appeals discharges the sureties upon the appeal bond, and entitles the ap- pellant to a return of securities delivered as security against lia- bility on the bond. Gove v. Law- rence. 89 2. Proof of fraud or mistake, to which the surety was privy, in procuring the satisfaction, might enable him to retain the securities. Id 3. An agreement by one member of a copartnership with a trustee of the firm to divert securities belong- ine to the firm, in the hands of the latter, to the individual use of the former, is not valid. Id. See COUNTY TREASURER, 3. BOUNDARY LINE. See DEED, 1 to 4. BREACH OF CONTRACT. See DAMAGES, 1, 2. INDEX. BREACH OF WARRANTY. 561 See WARRANTY OF CHATTELS, 1, 2, 3. BROKER. 1. A broker who, without notice to his principal, disposes of stock of his principal deposited with him as security against the liability in- curred by him in making a sale known as a short sale of coin on behalf of the principal, is liable to such principal for the conversion of the stock, after a demand made and refusal to deliver the same, and tender of the amount due upon the transaction in which loss has occurred. Lawrence v. Maxwell. 469 2. Evidence is immaterial, in an ac- tion for such conversion, tending to show a custom existing among brokers, in the city in which the transaction occurred, to use the stock held by them as security in the manner in which the stock was held by the defendant. Id. 3. Evidence is also immaterial in such action to show that the de- fendant had previously held stock of the plaintiff as security, which he had used in a similar manner without objection. Id. 4. The just and established rule of damages in such a case is the high- est price of the stock between the date of the demand or conversion and the day of trial. Id. See STOCKBROKER. BROOKLYN. See ASSESSMENTS, 1 to 7. \ BURDEN OF PROOF. See COMMON CARRIER, 1, 2, 3. EVIDENCE, 15. NOTES AND BILLS, 2. STAMPS, 2. LANSIXG Vou VI. 7t BY-LAW. See RELIGIOUS CORPORATION, 2,3,4. CANAL BRIDGES. See CANAL CONTRACTOR. CANAL CONTRACTOR. In order to render a canal contractor liable for damages resulting from defects in a canal bridge, it ifl not necessary to establish either that the bridge was so defective as to be apparently so to everybody, or that notice of its defective and unsafe condition had been brought to the contractor or his agents. It is sufficient if it appears that the defects were such as the con- tractor might, by reasonable ex- amination and tests, have dis- covered, and the question of his negligence in not making such discovery is one for the jury. Stack v. Bangs. 2(52 CAPACITY TO SUE. See PLEADING, 1. CASES AFFIRMED, OVER- RULED, DISTINGUISHED, ETC. Coclirane v. Dinsmore (Court of Ap- peals, unreported), considered and distinguished. Westcott v. Fargo. 319 Corning v. Southland (3 Hill., 352), explained and approved. Me- Kinley v. lucker. 214 McKinley v. lucker (59 Barb., 93), overruled. McKinley v. Tucker. 214 Delamater v. The People (5 Lansing, 332), approved and followed. New- man v. The People. 460 McNeil v. Tenth National Bank (46 N. Y., 325), followed. Moore v. Miller. 396 562 INDEX. People ex rel. Ditcher v. St. Stephen's Church (3 Lansing, 434), reversed. Same case on appeal. 172 People v. Assessors of Brooklyn (39 N. Y., 81), explained. People v. Assessors of MecJianicmUe. 105 WasJiburn v. Jones (14 Barb., 193), approved and followed. Mowers v. Fetters. 112 CASHIER. See PRINCIPAL AND AGENT, 4, 5, 6. CAUSE OF ACTION. See ACTION, CERTIFICATE OF INDEBTED- NESS. See ASSIGNMENT, 1. 2. CERTIFIED CHECK. See FORGED CHECK. CERTIORARI. See CRIMINAL LAW, 3. CESTUI QUE TRUST. See PARTITION OF REAL ESTATE, 12. TRUSTS AND TRUSTEES, 7, 12. CHARTER. See ASSESSMENTS, 7, 8, 9. MANDAMUS, 1. RELIGIOUS CORPORATION, 1 to 5. CHECKS. See FORGED CHECK. CHURCH CORPORATION. See RELIGIOUS CORPORATION. CITIES. See ASSESSMENTS, 10, 11. CITIZENSHIP. See REMOVAL OF CAUSES, 1, 2, CITY OF BROOKLYN, See ASSESSMENTS, 1 to 7. CITY OF LOCKPORT. See MANDAMUS, 1 to 4. CITY OF ROCHESTER See ASSESSMENTS, 7, 8, 9, 10, 11* CIVIL DEATH. See CRIMINAL LAW, 9", CLAIMS TO REAL PROPERTY. See EQUITABLE ACTION, 1. CODE OF PROCEDURE. See ATTACHMENT, 1 to 4. Lis PENDENS, 1 to 5. COLLATERAL MATTER. See WITNESS, 3, 4. COLLECTOR. See TAXES, 1. COMMERCIAL PAPER. See PARTNERSHIP. PRINCIPAL AND AGENT, 1. INDEX. 563 COMMISSIONERS TO ADMEAS- URE DOWER. See DOWER, 1, 2, 3. COMMISSIONERS. See PRINCIPAL AND AGENT, 8, 9. RECEIVER, 1. COMMON CARRIER. I. In an action to recover from an express company the value of goods lost by them, it appearing that the goods had been delivered to defendant at its regular place of business, and a receipt therefor given to plaintiffs, and that they were entered upon a shipping bill for their destination, which they never reached, and defendant could give no account of them after such delivery to it, Held, that these facts were sufficient to justify a finding of loss by negli- gence on the part of the company. , Westcott v. Fargo. 319 8. Under such circumstances the plaintiff was not bound, it seems, to establish affirmatively that the loss occurred by defendant's neg- ligence, but the burden of proof was upon defendant to show the absence of negligence on its part. Id. 3. Cochrane v. Dinsmore (Court of Appeals, unreported), considered and distinguished. Id. 4, Plaintiffs had been in the habit of doing "business with defendant, and had been furnished by defend- ant with a book of its blank receipts, from which the receipt for the goods, valued at more than fifty dollars, had been taken and sent to defendant to sign when delivered. The receipt contained n stipulation that the carrier's lia- bility for loss or damage should not exceed fifty dollars, unless the true value should be stated in the receipt. A blank left in the receipt for the value was not filled and it appeared that neither defendant, nor it* agent who received and receipted the package, knew that the value of the goods exceeded fifty dollars. Held, that plaintiffs were bound by the stipulation contained in the receipt, but that the loss of goods, as it proceeded from negligence, was not covered by it, it not being stipulated that the defendant should be exempted from liability for loss arising from negligence. Id. 5. Held, further, that this rule would apply, although the stipulation provided that defendant should only be liable as forwarder. Id. 6. Held, further, that an exemption from liability by the stipulation in the receipt, unless the claim was presented within thirty days from the accruing of the cause of action, did not apply to a loss by negli- gence; and, moreover, that such presentation was not a condition precedent to the right of action, and, as a limitation, should have been set up by answer. Id. 7. It is no valid objection to an action against a joint-stock com- pany, that the plaintiffs are corpo- rators or members of the company. Id. 8. The defendants were common car- riers, and also had, at one terminus of their route, an elevator through which they received merchandise for transportation, and which they also used as a warehouse for stor- age ; having received at the elevator from a connecting carrier the plaintiffs' grain, consigned to a point beyond the other terminus of their line, without directions or agreement for its storage, Held, that they were liable to the plain- tiffs as common carriers and not as warehousemen. Rogersv. Wheeler. 420 9. A practice of plaintiffs to bag grain, shipped to them over defend- ants' line, at the elevator as a mat- ter of convenience, not founded on any understanding or agreement between plaintiffs and defendants, held not to affect the defendants' liability as common carriers. Id. 564 INDEX. 10. Letters of the plaintiffs sent to the defendants in regard to a for- mer shipment of grain, directing the forwarding of part of such shipment, and containing no direc- tions as to the residue, construed, and held not to show an under- standing that the grain in question should be held in store for orders. Id. 11. Nor does the evidence of an agent of the defendants, that the defend- ants' grain was stored until ordered forward, and that in storing it he acted as agent for plaintiffs, the only authority for so acting being derived from the bills of lading, by which the grain was consigned to the plaintiffs at its destination under the care of such agent at the elevator. Id. 12. Where the only tendency of cer- tain incompetent testimony was to establish a fact which the referee expressly negatived by his find- ings of fact, Held, that there was no error for which the decision could be disturbed. Id. 13. The consignment to care of " A. B., agent," it appearing that he was agent only for the defendants, and solely in their employ, was a consignment in effect to the de- fendants. And that the defend- ants had previously received and carried the plaintiffs' goods simi- larly consigned is evidence of an understanding by defendants that it was to their agent for their benefit. Id. COMMON COUNCIL. See ASSESSMENTS, 1, 4, 7, 8, 9. MANDAMUS, 1 to 4. COMPENSATION. /See RECEIVER, 1. COMPLAINT. COUNTER-CLAIM, 1. PLEADING, 1 to 6. KAILROAD MUNICIPAL BONDS, 1. CONCURRENT COVENANTS. See ARBITRATION AND AWARD, 1, 2. CONDITION. See COMMON CARRIER, 6. EVIDENCE, 1. INSURANCE, 12, 17 to 21. CONDITION PRECEDENT. See COMMON CARRIER, 6. INSURANCE, 1. CONSIDERATION. See EQUITABLE ACTION, 2. EVIDENCE, 11. MISTAKES OF LAW AND FACT, 1. CONSTITUTION CONSTRUED. 1. The legislature has power, under the State Constitution (art. 11, 1), to create courts-martial for the discipline of the militia. People ex rel. Underwood v. Daniels. 44 2. And under the Constitution of the United States (art. 1, 8) and legislation of congress, it is ob- ligatory on the States to provide for such courts as part of their militia system. Id. 3. Article 6 of the State Constitution has no reference to military courts, but applies exclusively to those of civil judicature. Id. 4. The provisions of section 2, article 1, of the State Constitution, in regard to the right of jury trial, are not applicable to trials by court- martial. Id. 5. Nor are those of 2 R. S., 274, 1, regarding the publicity of the courts. Id. 6. Nor is section 6, article 1, of the State Constitution, regarding the right to appear by counsel. Id. See ASSESSMENT, 3. CRIMINAL LAW, 8. INDEX. 565 CONSTITUTIONAL LAW. See ASSESSMENTS, 3. CONSTITUTION CONSTRUED. CONSTRUCTION OF AWARD. See ARBITRATION AND AWARD. CONSTRUCTION OF CON- TRACT. See CONTRACT, 1 to 5. MORTGAGE, 1. CONSTRUCTION OF WILL. See EQUITABLE ACTION, 1. CONSTRUCTIVE NOTICE. See LIB PENDENS, 3, 4. See WILL, 1. CONTRACT. 1. Plaintiff contracted with defend- ants to work for them for three years at a specified price, and was to have the right to use the house upon 1 the premises where he was was to labor, for himself and family to live in, for the same term. And it was further agreed between them as follows : " That should the party of the first part (the defendants) sell the premises before the expiration of this con- tract, they are to pay the said P. (the plaintiff) the sum of three hundred (300) dollars, provided said P. cannot make a satisfactory bargain with the purchaser to stay on the premises." Before the expiration of the three years the defendants sold and conveyed the premises and put the purchaser into possession. Plaintiff con- tinued on the premises in the em- ploy of the purchaser; and the house, up to the tune of trial of this action, which was brought to recover the stipulated sum of $300. When the purchaser went into possession, he proposed to plain- tiff to continue him hi his employ, on the terms prescribed in the contract, and plaintiff refused to accept such proposition, but offered to stay for the residue of the term, on other terms and con- ditions which he submitted in writing to the purchaser, who re- fused to accept the same, and plaintiff continued to work for the purchaser, without any specific agreement between them as to the terms of his employment up to the time of the trial. Held, that plaintiff having continued to remain on the premises and work for the purchaser, and being entitled to receive for his services what they were worth, must be deemed to have made with the purchaser a contract satisfactory to himself, and there- fore he could not recover. Pullar v. Boston. 247 3. As plaintiff had been offered by the purchaser the same terms con- tracted for by him with the de- fendants, he would, it seems, be deemed in law to have refused a "satisfactory" offer within the scope and meaning of the contract provision. Id. 4. Held, also, that the intention of the parties to the contract was to indemnify the plaintiff against loss and damage in case he should be thrown out of employment, and a place to live in on the premises by means of defendants' sale of them before the expiration of the term, and to fix and settle the measure of such loss and damage in such event ; and not to enable the plaintiff to speculate or make a profit to himself by exacting better terms, or such other terms as he might choose to dictate. Id. 5. A contract to employ an agent for a year, if he " could fill the place satisfactorily," may be ter- 566 INDEX. minated by the employer when, in his judgment, the agent fails to meet the requirement of that con- tract. Tyler v. Ames. 280 See ASSESSMENTS, 6. ASSIGNMENT, I, 2. COMMON CARRIER, 1 to 14 DAMAGES, 1, 2. EVIDENCE, 2, C. INNKEEPER. INSURANCE, 1 to 4, 8, 9, 10. MORTGAGE, 1. NOTES AND BILLS, 9. PRINCIPAL AND AGENT, 2, 3 r 4, 5,6. PRINCIPAL AND STJBBTT, 1, 2. REFORMATION OP CONTRACT. STATUTE OF LIMITATION, 2, 3, 4. STOCK BROKER. 1 to 6. TRUSTS AND TRUSTEES, 1, 2. CONTRACTOR See ASSESSMENTS, 1 CONTRIBUTORY NEGLI- GENCE. See NEGLIGENCE, 2, 3, 4, 6. CONVERSION. See BROKER, 1. CONVEYANCE. See DEED. EQUITABLE ACTION, 2, 3. CONVICTION. See CRIMINAL LAW, 9. i ' COPARTNERSHIP. See PARTNERSHIP. CORPORATE ACT. e PRINCIPAL AND AGENT, 4, 5, 6, CORPORATIONS. See ASSESSMENTS, 7, 8, 9. ATTACHMENT, 4, 5. COMMON CARRIER, 1 to & PRINCIPAL AND AGENT, 4, 5, 6. MANDAMUS, 3. PLEADING, 3, 4. RELIGIOUS CORPORATION. COSTS. Where two actions are tried to- gether, costs are taxable in both, except, perhaps, it seems but one trial fee should be allowed. Hilde- brant v. Crawford. 507 See DowER r 6. COUNTER-CLAIM. 1. In an action to restrain the in- fringement of a trade-mark and for damages, a cause of action in favor of the defendant against the- njaintiff for infringing the same trade-mark, claimed in the com- plaint to have been violated by the defendant, is not a subject of counter-claim. Accordingly, affir- mative relief to the defendant in the action, restraining the plaintiff from using the trade-mark claimed in his complaint, and damages for use of the same, is erroneous. Glen & Hall Manufacturing Co. v. Hall. 158 2. A claim of defendant against plaintiff, arising out of partner- ship transactions between them, the partnership being terminated before the commencement of the action, may be set up as a counter- claim in an action, on contract, and the amount due defendant as such partner may be ascertained by an accounting between the parties. Clift v. Northrop. 330 3. The answer set up, in relation to such counter-claim, that the part- nership terminated at a certain day, which Was several months before the commencement of the action. That plaintiff conducted the business and acted as financial INDEX. 567 manager, and had possession of the funds and all payments, and that he had in his possession all the capital and profits of the busi- ness. Held, it sufficiently appeared from these allegations that the counter-claim was in existence at the commencement of the action. Id. COUNTY TREASURER 1. A county treasurer is liable to the county for interest received on deposits of county funds. Super- visors of Richmond Co. v. Wandel. 33 2. His liability arises not only from his fiduciary relation, but from the fact that the interest belongs to the county, and comes into his hands as county treasurer. Id. '3. Accordingly held, that his sure- ties for the faithful execution of the duties of his office, and for payment, according to law, of all moneys coming into his hands as county treasurer, were liable on their bond for such interest Id. 4. Boards of supervisors do not act judicially hi passing upon the annual accounts rendered by county treasurers. Id. 5. Nor have they any power, in pass- ing upon his accounts, or other- wise, to sanction the withholding by him of any moneys belonging to the county, or to discharge him from liability therefor. Id. 6. Nor will their acts or omissions have the effect to discharge his sureties, as such, in respect of such liability. Id. COURT OF APPEALS. See BOND, 1. COURT OF SESSIONS. See CRIMINAL LAW, 7. COURTS-MARTIAL. See CONSTITUTION CONSTRUED, 1 to 7. COVENANT OF QUIET ENJOY- MENT. See DEED, 5. COVENANTS. See ARBITRATION AND AWARD, 1, 2 CREDIBILITY. See WITNESS, 1, 2, 5, 6. CREDITOR'S BILL. 1. In an action, in the nature of a creditor's bill, to reach property in the hands of a third person alleged to be held for the debtor's benefit, the decision of a referee upon ap- peal on the exceptions to findings of fact, is to be considered at General Term in view of all the evidence, and to be reversed or affirmed according to the conclu- sion of fact which shall be arrived at by the court. Shepherd v. Hill. 387 2. A debtor made a general assign- ment of his goods (in 1861), some of them purchased on credit from the plaintiff. The assignee sold the assigned property in bulk to a third person, a farmer, for whom the debtor then claimed to act as agent in the management of a mis- cellaneous business, but of such a character and under such circum- stances as led to a conclusion that the agency was fraudulent and the business his own. During the al- leged agency real estate was con- veyed to his wife, and he made a deposit to her credit, and con- tinued to make like deposits after he claimed to have terminated his first agency, when he assumed to act as agent for his wife, who had no property except such as came to her from her husband after he :VI8 INDEX. had incurred the debt. In a credi- tor's action to reach the interest standing in the wife's name in the real estate, the court reviewed the question of fraud upon the evi- dence and reversed the decision of the referqe, which was for the de- fendant, and ordered a new trial. Id. CRIMINAL. See WETNESS, 1,2. CRIMINAL LAW. 1. Section 22, 2 R. S., 740, has not abolished the common-law record in criminal cases, as is shown by 4, 2R. S., 738; 10 id., 739. Gralmm v. TJie People. 149 2. But the statute does not require a formal common-law record of Judgment to be filed in the first instance or returned upon writ of error. Id. 3. The return to a writ of error in a capital case, failing to show that the prisoner had been asked if he had anything to say why sen- tence should not be passed, certio- rari to the Oyer and Terminer or clerk, as counsel should be ad- vised, was granted to bring up such proceedings as might remain in that court or the records there- of. Id. 4. If during his term of punishment a prisoner escapes from jail or State prison, where he is confined upon conviction of crime, he may be retaken after the term and held to answer for the residue of the time for whioh he was imprisoned, under the provisions of 20, 2 R. S., 685. Haggerty v. The People (No. 1). 332 5. The clause of that section which directs the prisoner's imprison- ment until tried for an escape, or discharged on failure to prosecute therefor, is not a limitation of the time of imprisonment upon his first offence, but is, it seems, in- tended to provide for his retention for additional punishment for the escape. Id. 6. A prisoner, escaped during his term of imprisonment, and re- taken after the time for which he was imprisoned has expired, may be returned to State prison, for a time equal to the remainder of his term unserved, by the court which sentenced him, upon information or suggestion on behalf of the people and trial of the question of his identity and escape. Id. 7. The Court of Sessions of Albany county has jurisdiction to direct such reimprisonment of a criminal upon whon it has passed sentence. Id. 8. The provision of the Constitution (art. 1, 6) which declares that "no person shall be held to answer for a capital or other infamous crime * * * unless on presentment or indictment of a grand jury," does not affect the remedy by " information " to enforce punish- ment already due under sentence. Id. 9. One who was convicted of a felony, and imprisoned, upon sen- tence, in the State prison for a term of years, escaped before the expiration of such term, and, after it would have expired, had he re- mained in custody, committed an- other felony. On being arrested and brought before the court which imposed the original sen- tence, that court ordered the exe- cution of the remainder thereof. The accused, notwithstanding the objection that he was civilly dead, was put upon trial for the second felony, convicted thereof and sen- tenced therefor, the second term to commence at the expiration of the first. Held, that there was no error, and the conviction affirmed. Haggerty v. The People (No. 2). 347. See NUISANCE, 1. WITNESS, 1, 2, 3, 4. CRIMINAL RECORD. See CKIMINAL LAW, 1, 2, 3. INDEX. 569 CROPS. N See LANDLORD AND TENANT, 3 to 6. CUSTOM. See BROKER, 2. EVIDENCE, 7, 8. CUSTOM-HOUSE PERMITS. See EVIDENCE, 10, 13. CUSTOM-HOUSE REGULA- TIONS. See EVIDENCE, 10, 14. DAMAGES. 1. Estimates of probable sales furnish no proper criterion for fix- ing damages ; actual damages, and actual loss of profits, only can be recovered.' Washburn v. Hubbard. 11 2. Accordingly, in an action for breach of a contract to continue the plaintiff as the defendants' agent for the sale of car-springs, and allow him commission on sales, Held, that evidence of the amount of profits which might have been made during the term of the con- tract, based upon a calculation of the probable amount of sales during such term, was inadmis- sible to establish the plaintiff's damages. Id. 3. The measure of damage recover- able from a commercial factor or agent who sells goods, intrusted to him for sale at a specified price, at less than the price authorized, is the actual damage sustained. Hinde v. Smith. 464 4. Accordingly, in an action against a factor to recover for such a sale, where no increased market value for the goods was shown over the price realized, Hdd, that there was no damage and could be no recovery. Id. LANSING VOL. VI. 72 5. A referee's error in computing too great a sum as due the plain- tiff is not necessarily ground for reversal of his judgment, where the court can make the computa- tion correctly and direct a proper abatement. Id. See BROKER, 4. CONTRACT, 4. COUNTER-CLAIM, 1. LINE FENCES, 1. See PRINCIPAL AND AGENT, 9. DEED. 1. A line given in a deed as running from one monument to another, is, in the absence of further descrip- tion, presumed to be a straight line. Kingsland v. Chittenden. 15 2. The rule which carries land, bounded upon a stream or pond, to the middle thereof, applies only where the grant is in terms bound- ed on the stream or pond gene- rally. Id. 3. It is founded on the presumed intent of the grantor, and can never be applied when the presumption is repelled by the language of the grant. Id. 4. A map made for the owner of an entire tract, and referred to in the deeds of parcels thereof, is admis- sible evidence between the subse- quent grantees upon a question as to their boundaries. Id. 5. Under a conveyance of land, with covenant for quiet enjoyment, re- serving the right to enter on a cer- tain part thereof and dig and take the clay and sand fit for brick making, Held, that the grantor was not at liberty to remove the lateral support of the land granted, in the exercise of his right to take the clay and sand from the part specified. Ryckman v. Gillis. 79 6. Also, that the property in the clay and sand was excepted from the conveyance, and the provision in respect to entry for their removal 570 INDEX. did not change the nature of the grantor's title to them. Id. . A. conveyance of land to a rail- road company, " for the uses and purposes of said railroad, and for no other or different purpose," de- scribed two parcels; the descrip- tion of the second commencing " together with a piece for mate- rials of five hundred and thirty feet in length, &c." A map was annexed to the deed and referred to in the description, on which sucli second parcel was laid down and designated "for materials." Held, that these words did not exempt the company from liability to the grantor for damages caused by his negligently digging away a part of such secondly described lot, so as to cause his adjoining land to fall in, and seriously to impair its value. Ludlow v. Mud- son Biv. E. E. Co. 128 . The cause of action for damage did not accrue until the caving away of the land took place, from which the injuries resulted. Id. See DOWER, 1, 2. EASEMENT, 2. 3, 4! EQUITABLE ACTION, 1, 2, 3. MORTGAGE, 1. TRUST AND TRUSTEES, 1 to 7. DEFENCE. See COUNTER-CLAIM, 1. EVIDENCE, 9, 15. MISTAKES OP LAW AND FACT, 1. NOTES AND BILLS, 1, 2. STOCKBROKER, 3, 4. DELIVERY. Bee NOTES AND BILLS, 3, 9, 10. DEMURRER. See MISTAKES OP LAW AND FACT, 1. PLEADINGS, 4, 5. REFORMATION OP CONTRACT, 1,2. DENIAL. See EXECUTORS AND ADMINISTRA- TORS, 2. DEPOSITS. See MILLS DEPUTY SHERIFF. See EXECUTION, 1 to 5. DESCRIPTION. See DEED, 1 to 4. DESTRUCTION BY MOB. See TENANTS IN COMMON, 1 DEVISE. 1. A devise to testator's widow for life, "and from and after" her death to all his children in equal shares, creates a vested remainder in fee to the children to vest in possession on termination of the life tenant's estate. Livingston v. Green. 50 2. An additional provision, that if any child should die leaving heirs, they should receive their parent's portion, furnishes no evidence of intent that the remainder should not vest. Id. 3. Nor does an omission to provide for the case of any of the children dying without issue. Id. See EQUITABLE ACTION, 1. DISCHARGE IN BANKRUPTCY See BANKRUPT LAWS, 1, 2, 3. DISCRETION. See CONTRACT, 5. INDEX. 571 DITCHES. tf MILLS, 2,3. DOMICILE. 1. A-soldier may abandon his domi- cile and acquire a new one, as other persons. Ames v. Duryea. 155 2. His purchasing or renting a dwelling, to which he removes his family and in which he lives, is evidence of a change of domi- cile, in the absence of facts mani- festing an intention not to remain permanently in such dwelling. Id. 3. So the removal of his family to a place where they take board is evidence of like change. Id. See RESIDENCE. DOWER. 1. A widow is entitled to have set off to her as her dower, by metes and bounds, to be held by her in severally, the one-third part of land of which her husband has been seized in fee in severally, during coverture, and has con- veyed an undivided portion to another person, she not joining with him in the conveyance. Smith v. Smith. 313 2. She is also entitled to have set off to her, by metes and bounds, as her dower therein, the one-third part of lands conveyed to the hus- band and a third person, as tenants in common during co- verture, and so held by them at the time of the husband's death, to be held by her as tenant in common with the other owner. Id. 3. Although the statute hi relation to proceedings for admeasurement of dower does not require any notice to be given of the meetings of the commissioners, yet such notice is customary and proper, and should be given ; but where it appears that a party interested, who complains of the omission to give such notice knew of such meetings, and that no injustice had been done him by the de- cision, Held, that the commission- ers' report should be confirmed, notwithstanding no formal notice of their meetings had been given. Id. 4. No appeal can be taken, under the provisions of the Revised Statutes, from an order confirming such a report, unless the com- missioners are appointed by the County Court or a surrogate ; but an appeal to the General Term from the order of the Special Term, confirming the report of the commissioners appointed by the Supreme Court upon petition, may be upheld under the pro- visions of chapter 270, Laws of 1854, which allows appeals to be taken in any special proceeding from an order or final determina- tion made at Special Term to the Grand Term. Id. 5. Such an appeal does not, how- ever, stay the proceedings, with- out the order of the court or a judge thereof. Id. 6. The costs of an appeal from the order confirming the report in such proceedings, where the ap- pointment has been made by the Supreme Court, are not those given by the Revised Statutes, but are regulated by the provisions of chapter 270, Laws of 1854 Id. See EQUITABLE ACTION, 2. TRUSTS AND TRUSTEES, 6. DUTIES. See EVIDENCE, 10. EASEMENT. 1, The right to use ground contigu- ous to a saw-mill, lor the piling of logs, may be gained by prescrip- tion. Voorhees v. Burchard. 176 2. And it passes by conveyance of the mill as appurtenant thereto. Id. 572 INDEX. 3. Evidence of the intention of the parties to the deed, that the grantee should not acquire the easement, cannot prevail over a conveyance of the mill and its appurtenances. Id. 4. Evidence is admissible to restrict the right to such premises as are reasonably necessary for the enjoy- ment of the easement. Id. See MILLS, 1 to 6. EJECTMENT. See MILLS, 5. ELECTION. See REFORMATION OF CONTRACT, 2. EMPLOYER AND EMPLOYE. See CONTRACT, 5. ENCROACHMENT. 5. ENTRIES. See EVIDENCE, 13, PRINCIPAL AND AGENT, 5. EQUITABLE ACTION. . Certain real estate was devised to J. C. S., a daughter of testator, "subject to the following condi^ tion and contingency : That said gift is made and given to her and her direct lineal descendants, should she have any, in fee simple absolutely ; but in the event that she shall die, leaving no children, or descendants of any children, then * * * to the children of the survivor or survivors of my children (naming them) equally, share and share alike,'' &c. J. C. 8. deeded the premises to plaintiff in fee, who, having been in pos- session more than three years, brought this action to obtain a construction of the will as to the title said J. C. S. obtained under such devise, making J. C. S."~and her children (some of whom were infants) parties defendants, and alleging that her. estate was a fee simple absolute. J. C. S. did not answer the complaint. The adult children answered, setting up that they, under said will, with their brothers and sisters, were seized of an estate hi fee simple subject to the life estate of their mother (J. C. S.), and asking that the court so decree. The infants by their guardian put in the usual general answer, submitting their rights to the court, and also making the same claim as the adults in relation to their rights under the will. Held, that the complaint was properly dismissed. Such action cannot be maintained in equity, either as a bill quid timet or in the nature of quia timet, nor as a bill of peace, nor at law under the statute, the complaint containing no allegation that the defendants unjustly with- held possession of the premises from plaintiff, but contained allegations contradictory thereto as to the defendant J. C. S., and showing the fact of the infancy of others of the defendants. Bailey v. Southwick. 356 2. Plaintiff, a married woman, was the owner of certain real estate, a large part of the purchase-money of which had been furnished by her husband, and he had also expend- ed large sums for its improvement and repair. It was also heavily incumbered. The husband died, leaving plaintiff his widow, and children by a former marriage, and having upon his death-bed re- quested the defendant to take said property and do the best he could therewith for his wife and children, and requested him to tell plaintiff that he wished her to convey the property to defendant, that he might manage it for her benefit and that of his children. After the hus- band's death, defendant informed plaintiff of the request made by INDEX. 573 him, and defendant conveyed the property to plaintiff, the only con- sideration of the conveyance being her husband's request and the verbal and implied promise of de- fendant that he would conform with such request. After such conveyance, defendant expended large sums in discharging liens and incumbrances upon the property, existing at the time of the convey- ance, and in paying for repairs and improvements thereto, com- menced in her husband's lifetime. Held, in an action brought to obtain a reconveyance of the pro- perty, that plaintiff was not entitled to such relief, and yet that a judg- ment rendered for the defendant was erroneous and must be re- versed and a new trial ordered ; that defendant was entitled to be reimbursed the amounts expended by him under the conveyance in good faith, hi paying liens and in- cumbrances, and in making repairs and to be subrogated to the rights of creditors of the husband, whose debts he had paid, and to a reason- able compensation for his services ; that he should also be held to account for the rents and profits received by him ; that the respec- tive rights of the parties interested, including any question as to the widow's right of dower, should be ascertained upon the new trial and settled upon equitable principles. Collins v. Collins. 368 3. Held, further, that the children of the intestate had interests in the estate, the rights to and the extent of which could only be deter- mined by their beirfg made parties to the action, and that they should therefore be brought into the action as such parties. Id. See COUNTER-CLAIM, 1. PARTITION OF REAL ESTATE, 1, 2,3. TRUSTS AND TRUSTEES, 7 to 13. EMPLOYER AND EMPLOYE. See SERVICES. EQUITABLE RELIEF. See COUNTER-CLAIM, 1. EQUITABLE ACTION, 1. 2, 8. ESCAPE OP PRISONER. See CRIMINAL LAW, 4 to 9. ESTOPPEL. See ASSIGNMENT, 1, 2. BANKRUPT LAWS, 1, 2. NOTES AND BILLS, 5, 6. NUISANCE, 1. EVIDENCE. 1 . Evidence is admissible, in an action on a fire insurance policy, to show waiver, by the insurer's agent, of a condition that any other insur- ance shall be by a consent of the company written on a policy. Whitwell v. The Putnam Fire Ins. Co. 166 2. In an action to recover back money paid upon a contract be- tween plaintiff and defendant for the sale and delivery of grape roots, on the ground that the contract was rescinded, the roots having turned out dead and worthless, it seems that evidence that an agent of the defendant, who made the contract and delivered the roots, requested the agent of the plain- tiff, who received them, not to undo the wrappers in which they v/ere inclosed, as the former was aoout to do for the purpose of examining them, as it was a cold night and he would not be responsible if they turned out not to be right, was admissible as a part of the res gestcR of the delivery and accept- ance, and showing a good reason for the acceptance at the time and payment of the purchase-price, wfthout examination in respect to the condition of the rocta. Stone v. Frost. 440 574 INDEX. 3. The fact as to whether a root or other vegetable substance is dead or not is matter of such common observation and experience that it does not require an expei t to tes- tify in regard to it, and the same may be said ia regard to the ques- tion whether a dead grape root has any marketable or other value. Id. 4. The roots being dead when de- livered and of no value whatever, no necessity existed, it seems, for returning, or offering to return them before bringing the action. Id. 5. The plaintiff wrote to one who had acted as defendant's agent, in making the contract and deliver- ing the roots, that the roots were dead and worthless, and requested him to come and take them away and pay back the money, or if he would not, to lay the letter before defendant. Shortly afterward de- fendant answered the letter, ac- knowledging its receipt from his agent, and refused to comply with the request, insisting that the roots were in good condition. Held, sufficient evidence from which the jury might have found a notice to defendant that the vines were worthless, and an offer to return them. Id. 6. Held, also, as matter of law, that this letter and reply constituted sufficient notice to defendant, of the worthlessness of the roots and offer to return them, to sustain the action. Id. 7. In an action against a marine insurance company, plaintiffs claimed a recovery by virtue of a written application by plaintiffs to defendant "for not less than $10,000," marked "binding" by the company. Held, that in order to establish a contract between the parties, evidence was admissible to show that a custom existed between the plaintiffs and several insurance companies, including the defendant, in cases where the value of property upon which insurance was desired was not known at the time of the applica- tion, by which custom applicjitions were made like the one mentioned, to the various companies, for in- surances in sums in the aggregate amounting to what plaintiffs sup- posed might be the actual value of the property at risk, and that such applications were accepted and made binding for such indefi- nite sums, with the understanding that when the value of the pro- perty at risk should be ascer- tained, the amount so insured by the respective companies should be declared and apportioned so that the amounts actually insured should bear the same proportion to the property actually at risk as they bore to the aggregate of all the indefinite insurances thereon ; and that after the amount had been so ascertained and fixed, a policy in the form then in use was issued by the respective compa- nies for the precise sum so fixecf and adjusted ; and that in this casn the plaintiffs, not knowing the ac tual value of the property, had made insurances in like manner with certain of the other compa- nies upon the property, in various sums. Fabbri v. Mercantile MuJ. Ins. Co. 337 8. Held, also, that the contract cre- ated by the acceptance of the application, as explained by evi- dence of the practice mentioned, would render the defendant liable for a proportionate amount of the loss to the amount insured, not- withstanding a clause contained in the policies used by defendant, to the effect that if the insured made any other insurance upon the property, prior in date to the policy, then the defendant should be answerable only for so much as the amount of such prior insur- ance might be deficient toward fully covering the property in- sured, and there were other prior insurances effected by the other companies sufficient to cover the actual loss. Id. 9. A cask of wine, shipped with de- fendants, was received by them in good order, and they undertook for a reward to deliver it at its destination, stipulating against lia- bility by loss from leakage, dam- age from stowage, straining or other peril of the seas. The cash; INDEX. 575 arrived In good condition, but without any contents. In an ac- tion brought to recover for the loss, the defendants set up as a defence that the wine had leaked out, and also contested the alleged value. Held, that evidence of a stevedore as to his experience of the effect of heavy weather on fluids in casks during a sea voy- age, and also as to the condition of the other casks containing fluids that came out of the vessel at the same time as this one, was properly excluded. Arend v. Liverpool, If. T. and Ph. Steamship Co. 457 10. Also that a motion for a non- suit, on the ground that plaintiff had not shown that the govern- ment duties had been paid on the wine, and a custom-house permit obtained to land it, was properly denied. Id. 11. Also, the cause of action having been assigned by the owner of the wine to plaintiff, that a question put to the assignee as a witness, as to the consideration of the as- signment, was properly overruled. Id. 12. Also, that a question whether this wine did not often deteriorate coming to this country was pro- perly excluded. Id. 13. A custom-house officer, who kept an entry of an application for a permit to land this cask of wine, was asked what he found in his memorandum as to the valua- tion of this cask. Held, properly excluded, there being no evidence to connect the importer with the memorandum. Id. 14. A witness acquainted with cus- tom-house business and regulations was asked to state under what circumstances and on what regu- lations free permits are given at the custom department. Held, properly excluded. Id. 15. Held, also, that the cask having been received in good order, the defendants were bound to show that the loss occurred within some clause of the bill of lading exempt- ing them from liability ; and that proving that the ship had a tem- pestuous voyage, that the cargo was well stowed, and that the hatches were properly secured, &c., did not tend to shift the bur- den of proof. Id. 16. Parol evidence is admissible of the contents of a letter, it appear- ing that the person in whose pos- session it is, is out of the country. Tucker v. Woolsey. 482 17. Parol evidence is admissible in an action for the foreclosure of a mortgage, payable in money, as- signed by the mortgagee as col- lateral security for the payment of his indebtedness to the assignee, that it was agreed that such in- debtedness was to be paid in pro- duce. Hildebrant v. Crawford. 502 18. A statement copied from a book of account and compared there- with is, upon loss of the book, ad- missible to prove the account. Id. 19. A witness may not testify to the reason others had for their con- duct; such testimony is but the expression of an opinion. Filkins v. Baker. 516 20. A witness may refresh his memory from a copy made by himself, of his memorandum, on proof that the original memoran- dum is lost. Id. 21. Items of charge for labor and services, made up from memo- randa in detail previously taken daily, and at the end of the week written out by direction and in the presence of the witness, are avail- able as original memoranda. Id. 22. Testimony given without objec- tion cannot, it seems, be stricken out upon motion made after the whole evidence is in. Id. See ASSESSORS, 3 to 8. BANKRUPT LAWS, 2. BROKER, 2, 3. COMMON CARRIER) 1, 2, 3, 10 to 14. DAMAGES, 2. DEED, 1 to 5. DOMICILE, 2, 3. 576 INDEX. See EASEMENT, 3, 4. INSURANCE, 2, 3, 4. LANDLORD AND TENANT, 4, 5. NEGLIGENCE, 3, 4. NOTES AND BILLS, 1, 2. PRINCIPAL AND AGENT, 13. RAILROAD MUNICIPAL BONDS, 2 to 5. RESIDENCE, 1. STAMPS. STATUTE OF LIMITATION, 4. WITNESS. EXCEPTION. See DEED, 5, 6. i EXECUTION. 1. If the plaintiff in an execution treats it as properly in the officer's hands after the return day, he waives his existing right of action for its non-return. McKinley v. Tucker. 214 2. Instructions to the deputy after the return day, implying a consent that he may retain the execution, make the deputy the party's agent and discharge the sheriff from an accrued cause of action for its non- return. Id. 3. Thus where, after the return day, the plaintiff directed the deputy to take notes and hold them till due, and then apply them on the execution, Held, a recognition that the execution was rightfully in the deputy's hands, consent for his retaining it until maturity of the notes, and a waiver of the accrued right of action for non- return. Id. 4. Corning v. Southland (3 Hill, 552), explained and approved ; McKin- ley v. Tucker (59 Barb., 03), over- ruled. Id. See ATTACHMENT, 2, 6, 7, 8, 9. BANKRUPT LAWS, 4. EXECUTORS AND ADMINIS- TRATORS. 1. If, upon the presentation of a claim, an executor does not admit or reject it, he must be regarded as disputing it. Cooper v. Felter. 485 2. A denial of allegations, in a peti- tion to the surrogate, cannot be regarded as allegations of new matter. Id. 3. It will not be presumed that a claim, against the testator for rent, is for the benefit of his estate ; and where no proof of actual benefit is made or stated in the petition upon which the surrogate assumes to hear the claim, it is error if he adjudge it a preferred claim under the statute. Id. 4. Section 6 of the act of 1870 (chap. 359) gives no authority to surro- gates to try the claims of creditors which are disputed by an exe- cutor. Id. 5. That section ( 6) refers to ac- counts of executors or administra- tors rendered to the surrogate, and was not intended to deprive them of the right of trial of claims, disputed by them, by jury. Id. See TRUSTS AND TRUSTEES, 10, 11, 13, 14. EXPERT Bee EVIDENCE, 3. EXPRESS COMPANY. See COMMON CARRIER, 1 to 8. FACTOR. See DAMAGES, 3, 4. PRINCIPAL AND AGENT, 7, 8, 9. JUSTICE OF THE PEACE, 1, 3, FEDERAL COURTS. See JURISDICTION, 1. REMOVAL OF CAUSES, 1, 2. INDEX. 577 FELON. See WITNESS, 1, 2. FELONY. See CRIMINAL LAW, 9. FENCES. See LINE FENCES, 1. FICTITIOUS PAYEE. See FORGED CHECK, 2. FINDING OF FACT. See COMMON CARRIER, 1, 12. FIRE INSURANCE. Sec INSURANCE, 11 to 15 ; 17 to 22. ^FORECLOSURE. See Lis PENDENS, 2. TRUSTS AND TRUSTEES, 2, 3. FOREIGN CORPORATION. See PLEADING, 2 to 6. FOREIGN LAWS. See USURY, 1. FOREIGN STATUTES. See STATUTE OF LIMITATIONS, 1. USURY, 1. LANSING VOL. VI. 73 FORGED CHECK. 1. A bank is liable to a bona fide holder in the ordinary course of business upon a forged check pur- porting to be drawn upon it, pay- able to order, and which it has certified. Hagen v. Bowery JX