author: Marvin, J. Wright, J.

text:
    Brace v. New York Central Railroad Company.
    The statute requiring railroad corporations to maintain cattle guards at road crossings applies as well to streets which are crossed,by railroads in Tillages as to country highways,

      It seems, however, that where a village street crosses a railroad running along another street, the corporation -is not to construct cattle guards longitudinally along its track so as to impede the passage along the street crossing it.
    Appeal from, the Supreme Court. Action to recover the value of a horse, killed by the defendant’s locomotive; in the unincorporated village of Grasport, in the town of Royalton, Niagara county. At the trial, these facts appeared:
    The village is some six miles east of Lockport, upon the Erie canal, and the defendant’s road passes through it. There is a highway or street, called the “ Town Line Road,” running north and south, across the railroad, the “State Road,” so called, and the canal; and it is the principal street or highway. The canal, State road, and railroad, run nearly east and west, the State road being some six or eight rods south of the canal, and the railroad some fifteen or sixteen rods south of the State road. The defendant’s depot is some twenty-five rods east of the “Town Line Road,” and immediately east of a north and south road or street, which is some forty rods in length ; its south end is connected with the State road, by a road or street south of the railroad, at the crossing of the latter, some fifteen or sixteen rods. The village contained thirty-seven houses, and a population of between two and three hundred, a portion of which is on the north side of the canal. There was no cattle guard upon the east side of the Town Line road. There had been one, but as it was inconvenient for foot passengers, passing from the Town Line road, along the railroad, to the depot, it had' been filled up. The plaintiff’s horse broke out of a lot, some miles south of the crossing, and ran rapidly along the Town Line road, and approached the crossing as the train was coming from the west, and being frightened, turned on to the railroad track, and was overtaken and killed some six rods from the street or highway. The defendant offered to prove, by a witness, that he and two other men in the employment of the defendant were stationed at that crossing, for the purpose of preventing horses and cattle from going on to the track, and that they were at the crossing at the time the horse was killed, and endeavored to keep him back and prevent his going upon the track, but were unable to do so, on account of the great speed with which he approached the track. Upon objection, the evidence was excluded, and the defendant excepted. The defendant offered to prove, that complaints were made by the inhabitants of the village, that the cattle guard was a nuisance, and that in consequence of persons falling into it and being injured, while passing between the street and depot, the defendant caused it to be filled up. Upon objection, this evidence was excluded, and the defendant excepted. The only ground upon which the plaintiff claimed to recover was, that the defendant was bound to construct and maintain a cattle guard at the crossing, at the east line of the Town Line road or street. The court directed a verdict for the plaintiff, and the defendant excepted. Judgment was rendered on the verdict, and the defendant appealed to this court. The cause was submitted on printed arguments.

      Woods & Murray, for the appellant.

      Gardner & Lamont, for the respondent.
   Marvin, J.

By the statute, the defendant was required to “ construct and maintain cattle guards at all road crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad and it is declared, that until such cattle guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engineers, to cattle, horses or other animals thereon.” (Sess. Laws 1850, p. 233, § 44.)

The position of the defendant’s counsel is, that the “ Town Line Road ” was a street, and that the statute has no application to a street, in a city or village. No statutory exemption is referred to, but this is the construction sought to be maintained of the words, “ all road crossings.”

. The Town Line road, so called, was a highway, and had existed as such, in the language of one of the witnesses, as long as he could remember. It did not cease to be a highway when a small village, grew up along its sides, nor when it crossed the canal, and extended on to other streets, opened for the use of the villagers. It was a highway, and, within the meaning of the statute, a road. The terms, highway and road, are constantly used as synomymous. They are so used in the chapter of the Revised Statutes, “ Of Highways,” &c. But, if we should call the highway, at the place of the crossing in question, a street, the liability of the defendant would not be changed. It would still be a road, within the meaning of the statute. Strictly, a street is a paved way.or road, but the term is used for any way or road in a city or village. It is defined by Bouvier (Law Diet.), “ a road in a village or city and see Webster’s Dictionary. Thus, a highway is a road, and a street is a road; and as the statute requires railroad corporations to construct and maintain cattle guards at all road crossings, it includes streets in villages and cities. The defendant in this case did construct cattle guards at this crossing, on each side of the road, and the one upon the west side still remained; but, as the inhabitants residing upon the Town Line road, were in the habit of passing from the road on to the railroad, and from thence along the railroad to the depot, some twenty-five rods, and from the depot back to the road, upon the same route, they complained of the cattle guard as a nuisance, and the defendant caused it to be filled up. It is not necessary to say, that such cattle guard was not a nuisance. The law expressly required its construction and maintenance. It may be well tó call attention to the statute, declaring that “ it shall not be lawful for any person, other than those connected with or employed upon the railroad, to walk along the track or tracks of any railroad, except where the same shall be laid along public roads or streets.” (§ 44.) The inhabitants had no right to walk along the track, and it was unlawful in them to do so.

The defendant’s counsel refer to Vandekar v. The Rensselaer and, Saratoga Railroad Company (13 Barb., 390), and Parker v. The Same (16 Barb., 315). In the former case, there was no “ road crossing,” and the question we are considering was not involved. The opinion was expressed, however, that cattle guards, in the streets of a city or village, would be nuisances ; in which opinion I fully concur, understanding that the cattle guard is constructed across a street which crosses another street in which the railroad -is constructed. Such cattle guard would arrest all travel along 'the street across which it should be constructed. This would be very different from the construction of a cattle guard across the railroad and along the outer margin of the street, the railroad not being constructed along, in a street. The opinion was also expressed, that the statute makes an obvious distinction between roads and streets, referring to the sections of the statute relating to the ringing of bells and 'putting up boards to give warning, in which both words are used. In the other case, the question was fairly up, as the railroad was not constructed along or upon a street where the cow was killed, but it crossed Washington street, in the village of Saratoga Springs, and there were no cattle guards at this crossing. It was held, that the general railroad act, requiring railroad companies to construct cattle guards at all railroad crossings, did not apply to streets in cities and villages, and that it was so decided in Vandekar v. The Rensselaer and Saratoga Railroad Company, supra. In support of this position, sections 39 and 40 of the general railroad act of 1850 are referred to, as indi eating the intention of the legislature to make a distinction between the words, streets and roads; and that it was not its intention to include streets, by the words, “ all road crossings,” as used in section 44. Section 39 relates to the ringing of a bell when the railroad shall cross any traveled public road or street, or the sounding of a steam whistle at the place where the railroad shall cross any such road or street, except in cities ; and section 40 relates to the placing of boards across each traveled public road or street, where the same is crossed by the railroad, having upon them the words, “Railroad crossing; look out for the cars.” This section is not to apply to streets in cities and villages, unless the corporation shall be required to put up such boards, by the officers having charge of such streets. In my opinion, no' inference can be drawn from the word street, in those sections, that the legislature intended, by the use of the words, all road crossings, in section 44, to make a distinction between a road and a street, and to exclude the latter from the requirement of the 44th section, touching cattle guards. As we have seen, a street is a road in a village or city; and a road, in a city or village, is usually and properly called a street; though in the act of 1847 (ch. 426), “to provide for the incorporation of villages," the term road is generally used, instead of street (§§ 45, 57, subd. 23; § 58, subd. 3 and 5, &c.); and the words, street and highway, are also used, meaning the same thing.

If we consider the evil and danger against which the legislature intended to provide, I think we shall not hesitate to so Construe the act as to include the crossing of roads or streets in villages. The object of the legislature, in the provisions relating to fences and cattle guards, was to exclude from the railroad all animals.

Experience had shown, that an animal upon the track is in great danger of being killed or maimed; and further, as to most animals, they greatly endanger, not only the property of the railroad company, but the limbs and lives of passengers. (See opinion of Denio, J., in Corwin v. The N. Y. and Erie R. R. Co., 3 Kern., 53.)

" The purpose of cattle guards at road crossings is to prevent cattle and animals getting on the railroad, and they are quite as important in villages as they are in the open country, and, indeed, more so; for I apprehend that cattle and animals are more liable to be turned from the road or street, in a village, on the railroad, if there is no obstruction, than in the open country, where they are less liable to be turned aside. These cattle guards are not in the street, or ought not to be. They do not, in the least, encroach upon or obstruct the highway or road. They are constructed at the sides of the highway, across the railroad bed, the rails spanning them, thus providing a way for the cars over them, and there are ditches or excavations of sufficient depth or width to prevent cattle or animals from getting on the railroad.

One of the positions of the counsel for the plaintiff, is that Gasp or t was not a village, and that the Town Line road could, therefore, in no sense, be styled a street. It is true that Gasport was not incorporated, nor did it contain the requisite number of inhabitants (300) to authorize it to become incorporated, under the general act to provide for the incorporation of villages. But I prefer to put our decision upon a broader reading of the statute, as already indicated. The judgment should be affirmed.

Wright, J.

There is a single question in this case, viz.: whether the duty was enjoined by law on the defendants to maintain a cattle guard at the crossing, near where the plaintiff’s horse was killed. The general railroad act of 1850 provided that corporations formed under the act should “ construct and maintain cattle guards at all road crossings, suitable and sufficient to prevent cattle and animals from getting on the railroad; and' until such cattle guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses or other animals thereon; and after such guards shall be duly made and maintained, the corporation shall not be liable foany such damages, unless negligently or wilfully done.” (Laws of 1850, chap. 140, § 44.) In 1854 this section of the general act was amended so as to require all railroad companies “ to construct, when the same has not already been done, and thereafter maintain cattle guards at all road crossings, suitable and sufficient to prevent cattle, horses, sheep and hogs from getting on such, railroad.” And the same liability for an. omission was imposed as by the general act. (Laws of 1854, chap. 282, § 8.) In Corwin v. The New York & Erie Railroad Company (3 Kern., 42), it was held that this duty to construct and maintain cattle guards at road crossings rested on the railroad corporation; and as one of the consequences of the neglect or omission, the corporation was to be liable (irrespective of any negligence in their owner) for all damages that should be done by its agents or engines to cattle, horses or other animals on its railroad. 'It is not denied by the defendants that the statute imposes the duty on them to build and maintain cattle guards at “ road crossings,” but they contend that the statute does not apply to streets in cities and villages; and as Gasport, where the injury happened, was a village, they were not bound to keep or maintain any cattle guard at that place.

The whole force of the defendants’ point, in this respect, consists in a criticism on the words, “ road crossing,” in the statute; they contending that road, as used in the statute, means only a highway in the country, and that the term road crossing, does not embrace, nor was it so intended, a place in a village where the railroad intersects or crosses a street thereof. The suggestion receives no countenance from the statutes of 1848 and 1850, in relation to the organization and .powers of railroad corporations. A glance at those acts will show clearly, that in numerous instances, the terms road and highway mean and include streets, and that they are used synonymously. The power to construct the railroad across a road, highway, canal, &c., under the act of 1848, clearly embraced streets in a village. If it did not, then these railroad companies had no power to cross a street. By the act of 1850, it was provided, that when the railroad crosses a highway, the highway may be carried under or over the railroad. Here, neither roads or streets are mentioned, but they are manifestly embraced in the term highway. It cannot be doubted that this provision applies to streets, and to cities and villages. So, also, the engine bell is to be rung eighty rods from the place where the railroad shall cross any traveled public road or street, or a steam whistle is to be sounded that distance from the place where the road shall cross any such road or street, except in cities. Boards, painted with the warning, “Railroad crossing,” &c., are to be maintained across each traveled public road or street, on the same level, &c.; but this section is not to apply to streets in cities or villages, unless the railroad company shall" be required to put up such boards, by the officers having charge of such streets.. (Laws of 1850, chapter 140, §§ 24, 39, 40.) The various exceptions of cities and villages) and sometimes cities alone, and the reference to the trustees of villages, &c., indicate that when a village was intended to be excepted, it was specifically mentioned.

I find nothing in the statute from which it may be fairly inferred that the legislature intended to limit the duty of railroad corporations to the maintenance of cattle guards at crossings of public roads or thoroughfares outside of villages. They certainly have not said so in terms; and the phrase “ at all road crossings ” is quite comprehensive enough to include all crossings of public highways, whether called streets in a village or roads outside thereof. The reason and declared object of the statute for maintaining these cattle guards is to prevent cattle from getting on the railroad. This is as necessary in villages as elsewhere. It is claimed that a cattle guard in a village would be a nuisance. Practically, it might, in some instances, be a public inconvenience; but it cannot be a public nuisance, if authorized, and indeed required, to be maintained by public authority. These guards are not on the road or street, but beyond it on the private property of the railroad company.

The judge directed a verdict for the plaintiff, subject to the opinion of the Supreme Court, at general term. As there was a motion for a nonsuit, which was denied, and an exception taken, I was inclined, originally, to the conclusion that there had been a mistrial, but, upon reflection, am of a different opinion. It will be seen by looking into the case, that there was no controversy as to the facts, which were principally admitted. It was a mere question of law, upon undisputed facts, whether the railroad company was bound to maintain a cattle guard at the crossing on the east line of the Town Line road; and for the want of which the plaintiff’s horse came upon its track, and was killed. The only ground upon which the plaintiff claimed to recover, was that the defendants were thus bound. If they were not, for the reason the crossing was. of a street in a village, to which the statute did not apply, it was conceded there could be no recovery.

The judgment of the Supreme Court should be affirmed.

All the rest of the judges were for affirmance, but restricted their judgment to the case of cattle guards to be constructed within the limits of .the railroad at the places where it crosses a street, being of the opinion that the statutes do not contemplate that, where a railroad running along a street is crossed by another street, passage in the latter is to be impeded by cattle guards running longitudinally along the railroad and across the street.

Judgment affirmed.


source: Caselaw Access Project

author: Denio, Ch. J.

license: Public Domain

text:
    Knapp v. Smith et al.

    After the statutes of 1848 and 1849, and independently of eh. 90 of 1860, a married woman might acquire the title to real or personal property by buying the same upon credit, and no interest therein would pass to her husband whether she had antecedently any separate estate or not. Ifj the vendor would take the risk of payment, the transfer was perfect.
    Having thus obtained property, she could manage it by the agency of her husband or any other, and hold the profits and increase to her separate use.
    So held where the wife of an insolvent in 1851 bought cattle which had been his from his assignees, giving her promissory notes for the price, and purchased the farm, for the conveyance of which he had an executory contract, which was abandoned, she mortgaging it as security for the price, and subsequently employing her husband to manage the farm, the case being free from fraud.
    The decision in Allen v. Grary (10 Wend., 349), that replevin lies by the owner of chattels against one who had no possession or connection therewith other than to direct a sheriff to levy an. execution in his favor upon them, approved and affirmed. •
    Evidence by an assumed principal that her husband was acting as her agent, - and the inquiry of another witness whether the wife had been in possession of a farm on which she and her husband lived, are not objectionable on the ground of involving legal conclusions.
    Appeal from the Supreme Court. The action was in the nature of replevin for one colt' and seven yearling heifers. The defendants justified under a judgment and execution in a justice’s court, in favor of one Phelps, against Horace B. Knapp, the husband of the plaintiff. It appeared on the trial, before a referee, that the plaintiff was married in 1885, and that her husband became insolvent in 1851, and then made an assignment of his property, in trust for the payment of his debts, and that he co'ritinued insolvent to the time of bringing the action. In 1853, John Smith conveyed to the plaintiff in fee, the farm on which they then lived, and which they had continued to occupy ever since. The husband had contracted to purchase it several years before, anc| had made a small payment ■ but Smith, the vendor, swore that the contract was abandoned, and that the conveyance to the plaintiff was not in performance of it, but was an independent sale to her, and she gave him a mortgage for the purchase price, $1,200. About the same time, the plaintiff purchased eight cows and one mare from the assignees of her husband, for which she gave her note for $300. The colt and five of the heifers, for which the suit was brought, were the increase of the mare and cows, and the other two heifers were given to the plaintiff by a persdn other than her husband.. .She, with her husband and family, continued to occupy the farm, after the deed to her. ■ The finding,of the referee upon this.point, was: “That hér husband has carried on the farm and worked the same, and that the family of the plaintiff have been supported from the products of said farm; that the same has been managed and carried on in the name of the plaintiff, and that her husband has acted as her agent.” It was also found, that the ■ interest of the mortgage had been paid from the products of the farm, and that the note given for the cows had been paid from the proceeds of the sale of some of them. She had no separate estate or property, prior to the purchase of the farm. The referee stated, as a conclusion of fact, that the plaintiff was the owner and in possession of the colt and yearlings, when they were seized, on the execution, by one of the defendants,' who was a constable, by the direction of the other defendant. As matter of law, he found that the plaintiff was entitled to recover. Some exceptions to rulings in taking the testimony, are noticed in the opinion.
    The judgment on the report having been affirmed at a general term, the defendants appealed, and the case was submitted on printed briefs.

      L. I Burditt, for the appellants.

      L. I. Bundy, for the respondent
   Denio, Ch. J.

At common law, a married woman had a capacity to take real or personal estate, by grant, gift or other conveyance, from any person except her husband. But as to real property, the husband, where no trust was created, had an estate during the coverture, and during his life, if there was issue of the marriage; and the wife’s personal estate, in the absence of a trust, vested in him absolutely, when reduced to his possession. The object of the statutes of-1848 and 1849 was to divest the title of the husband jure mariti during coverture, and to enable the wife to take the absolute title, as though she were unmarried. (Laws 1849, p. 528, ch; 375, § 1.) There is some difficulty in a married woman purchasing property, whether real or personal, on credit, arising out of the principle that she cannot make a contract .for payment which will be binding upon her personally, according to the general rules of law; but if the vendor will run'the risk of being able to obtain payment of the consideration of the sale, the transfer will be valid, and no estate will pass to the husband, whether the wife had antecedently any separate estate or not. (Darby v. Calligan, 16 N. Y, 21.) It follows, that if the husband of the plaintiff in this case, had been free from debt, there could be no legal objection to her title to the farm, or to the cows which were purchased by and conveyed to her, and she would have been entitled to hold and enjoy them, to her sole and separate use, in the same manner as though she were not under the disabilities of coverture. It would follow, that she could cultivate the land and manage the personal property by means of any agency which any other owner of property might employ, and that the produce thereof and the increase of the stock would be hers.

Where the husband is indebted and insolvent, as was the case here, there is generally more or less reason to suspect that such arrangements are adopted as a cover to disguise the substantial ownership of the husband and to defraud the creditors. Whether, in a given casé, the transaction is sincere and bona fide, or a colorable device to cheat the creditors of the husband, is a-question of fact, to be determined by the jury or other forum entrusted with decision of such questions. In this case, the referee has found the facts necessary to show title in the plaintiff to the property in question, and he has omitted to find that her title was infected with fraud. On the contrary, by stating that the acts of the husband were done in the character of the agent of the plaintiff, and that she was the owner of the cattle which were seized, on the execution, he has virtually negatived the allegation of fraud. It is not our duty or right to review the testimony, with a view to pass upon the. correctness of his conclusion, and we, therefore, express no opinion upon the evidence in this case.

A point is made that the defendant Smith, who directed Moore, the constable, to make the levy, is not responsible, in this form of action, because, as it is argued, he never had the property in his possession. That precise question was decided against the defendant’s position, in Allen v. Crary (10 Wend., 349). The defendant in that case had done nothing but to direct the sheriff to levy upon the property replevied, under an execution against a person who was not the owner, and a levy was accordingly made. The court held, that this was a sufficient taking to enable the owner to bring replevin. I notice, that in an opinion at special term, before the late Judge Willard, the case of Allen v. Crary is made the subject of some criticism. But, in the case before Judge Willard, the defendant, who once had the possession of the property claimed,' had actually transferred it and parted with the possession before the bringing of the action. (Brockway v. Burnap, 12 Barb., 847.) It did not become the duty of the court, therefore, to pass upon the effect.of a levy upon execution where the process in replevin, as in this case and in Allen v. Crary, was served before anything more than making the levy had been done. I do not think the Bevised Statutes, or the Code of Procedure, have made any' change in the law as to the nature of the possession in the defendant which is required to warrant an action for the delivery of personal property. We therefore follow the case of Allen v. Crary, and hold that the action was properly brought against both defendants.

Two of the exceptions as to the admission of evidence are relied on. Trask, a witness examined for the plaintiff, was asked whether she had been in the possession of the farm since the deed to her, and the defendant objected that the inquiry called for an opinion on a question of law. The objection was overruled, and the witness answered that they, the plaintiff and her husband, had been on the place ever since. I do not perceive any well grounded objection to the question, but the answer was the statement of a simple' matter of fact, and one in respect to which, upon the whole case, there was not the slighest question. Again, the plaintiff, while under examination on her own behalf, was asked by her counsel, “For whom did your husband do what business he did after you took the deed," &c. This was also objected to on the ground that it called for a legal conclusion. Her answer was: “ I expected he was doing it for me." Legal considerations may, no doubt, be involved in a question of agency. But prima facie the inquiry whether a person engaged in a particular employment was doing business on his own behalf or as the agent of another, involves only the question of fact whether he had been employed by-that other person, and it is, therefore, a competent question to be put to such person. The exceptions, I think, have no merit, and .there being nothing else in the case, the judgment must be affirmed.

Wright, Sellen, Emott, Balcom and Marvin, Js., concurred; Rosekrans, J., was for reversal, on the ground that a married woman, prior to the act of 1860, could not buj' property for her separate uses, but under the acts of 1848 and 1849, could only take by gift or bequest.

Judgment affirmed.


author: Wright, J. Balcom, J.

text:
    Rawls v. The American Mutual Life Insurance Company.
    Where a creditor procures an insurance upon the life of his debtor, his insurable interest continues, although the statute of limitations would have barred his action, if pleaded, before the debtor’s death.
    It seems that the contract of life insurance is not one for indemnity merely, and that if the insured had an interest in the duration of the life when he took the policy, he may recover, though that interest has ceased: JPer Wright, J.
    Where the insurer pleads the falsity of representations as to the health of the party whose life is insured, evidence is admissible from the plaintiff as to his health prior to the application for the policy.
    The admission of such party, made after the plaintiff obtained the policy, that his own habits were intemperate, is inadmissible.
    Proof is inadmissible that a person addicted to intoxicating drink is not regarded as an insurable subject by persons engaged in the business of life insurance.
    When a person, who h&d signed written statements in respect to the health of the party, stated as a witness that he had no recollection of having done so, it is competent for the plaintiff to prove that such statement was read to him, for the purpose of repelling any presumption of fraud in obtaining his statement.
    So it is competent to prove by a physician, who made a written statement, the truth of which was in issue, that he made the statement in good . faith.

      It is not competent to call for the opinion of physicians, who had made statements in respect to the party insured, whether, if they had known that he habitually indulged in intoxicating drink, they would have regarded that practice as impairing his constitution, or of the examining physician, in behalf of the insurers, whether, with like knowledge, he would have regarded the life as healthy and the risk good. is
    The plaintiff is entitled to give in evidence all the papers on which the 4 insurers acted when they granted the policy.
    A statement procured by the.insurer in respect to the life insured, from a third party named by the person whose life is insured, but the contents of such statement not known to him or to the plaintiff, and not furnished as a part of the application, is not a warranty.
    When all the questions put to the parties desiring the insurance are fully and truly answered, it is not a fraudulent concealment if they omit to state facts, though material to the risk, not called for'by any specific or general question.
    Appeal from the Supreme Court. Action on a policy of insurance issued by the defendant, dated 28th July, 1853, for $5,000, on the life of John L. Fish, of Rochester, JST. Y., payable to the plaintiff. The answer denied, 1st. The allegations of the complaint, as to the plaintiff’s interest in the life of Fish; 2d.' Alleged that Fish did not conform and comply with all the conditions of the policy, and that the plaintiff had not made proof of the death in the manner provided in the conditions annexed to the policy; 3d. Alleged the contents of certain statements and representations of Fish, *F. W. Ship-man, James C. Marsh and W. F. Holmes, respecting the life, health and medical history of Fish, presented to the defendant by the plaintiffs, before issuing the policy, and in consideration of which the policy was issued; and then averred that such written statements and representations were false, and that Fish and the plaintiff had notice thereof, and that the policy, by reason thereof, was void; 4th! Alleged that before and at the time of the issuing of the policy,- Fish was a man of licentious, intemperate and disorderly habits and passions, and frequently or habitually indulged in habits and practices which had impaired, or would impair, his health and constitution and shorten his life; all which the plaintiff, Fish, Ship-man and Marsh well knew, or had good reason to believe at the time the representations were made, and before the issuing of the policy, and although the defendant was ignorant thereof, they gave it no notice, but concealed the same, and the policy was, therefore, void; 5th. Alleged that Fish died in consequence of intemperate drinking, and that by reason thereof the insurance ceased and terminated.
    On the trial, before Mr. Justice Smith, at the Monroe Circuit, in January, 1861, the plaintiff, after reading in evidence the policy of insurance, with the conditions annexed thereto, put in evidence the proofs of the death of Fish, furnished by him to the defendant, in March, 1857. The plaintiff also proved that on the 28th May, 1850, Fish and one Holmes, as partners, were indebted to the firm of Read & Rawls, of which the plaintiff was a member, in the sum of $9,675.73, and that no part of the debt had been paid.
    The plaintiff then rested, and the defendant moved for a nonsuit, on the following ground: The plaintiff had not shown that he had any interest in the life of John L. Fish. The debt of Fish & Holmes to Read & Rawls, if any, on the 28th July, 1853, was not,, and is not now, owned by the plaintiff; the demand of the plaintiff, if any, was outlawed long before this action was commenced.
    The nonsuit was denied, and the defendant excepted.
    The defendant then offered and read in evidence the statements of Fish, Shipman and Marsh, and adduced testimony for the purpose of showing that, prior to the application for the policy in suit, in July, 1853, and at that time, Fish was of intemperate habits, and that, in fact, he died in consequence of intemperate drinking. The plaintiff introduced testimony tending to show that Fish was not of intemperate habits when the policy in suit was applied for; and that his death resulted from accidentally falling through a hatchway in his storehouse.
    The court then charged the jury, and some exceptions were taken, which are noticed in the following opinion. The counsel for the respective parties agreed that the following question should be submitted to the jury for their answer:

      '“Was John L. Fish, on the 16th July, 1853, to the knowledge of Mr. Marsh, in the habit of intemperate drinking, to such an extent as had or would, in the opinion bf Mr. Marsh, impair his constitution or general health ?”
    The jury found a verdict for the plaintiff for $6,081.57; and answered the question submitted to them as follows:
    “ The jury think that the statement made by Mr. Marsh, on the 16th July, 1853, was truthfully made, according to the best of his knowledge.”
    Several exceptions were taken to the admission or rejection of evidence:
    1st. Two witnesses, Grant and Holmes (the latter of whom had been Fish’s partner in business), and who knew him intimately from 1848 to 1853, were asked by the plaintiff: “ When you first knew Fish, what was his health and constitution? and what was it down to 1853 ?” This was objected to, as immaterial, and also, in respect to the witness Grant, on the ground that he was not competent to give an opinion on the subject. The objection was overruled.
    2d. The defendant’s counsel offered to prove, by one Philips and other witnesses, the statements of Fish, in the fall of 1853, in relation to his intemperate habits. This was objected to, and the objection sustained.
    3d. The defendant offered to prove, by persons skilled in the business of life insurance, that a person who was in the habitual use, to excess, of intoxicating drinks, would not be considered an insurable subject. This was objected to, and the objection sustained. e
    4th. Marsh had sworn that he had no recollection of ever having seen or signed the statement to which his signature was attached. Holmes, who was the agent of the defendant at Rochester, called on Marsh with this paper, and wrote down his answers as he gave them, after reading the questions to him. It was proposed to prove this, by Holmes, to which the defendant’s counsel objected. The objection was overruled.
    5th. The plaintiff asked Holmes this question: “Did Mr. Fish at that time [about the date of the policy], in your opinion, indulge in any practices or habits which had or would impair his constitution or general health ?” Objected to generally by the defendant’s counsel, and the objection overruled.
    6th. Dr. Shipman, the family .physician of Fish, made a medical examination of him, in reference to the insurance. On the trial, the doctor testified that he'examined him carefully ; he appeared to be in good health, very good; and the witness signed a written paper. On this paper being produced and shown to him, he w-as asked: “Did you then believe the answers to these questions to be correct ?” Objected to by defendant’s counsel, and objection overruled;
    7th. The examining physician of the-defendant, Dr. Dean, was asked this question : “ If you' had known, at the time you made this examination [referring to the medical examination of Fish when the policy was issued], that Fish was in the habit of using intoxicating liquors to excess, would you have regarded his life héalthy, and the risk good?” Objected to by the plaintiff’s counsel, and the objection sustained.
    8th. The plaintiff offered in evidence the statement of Dr. Dean (the defendant’s examining physician), which was objected to by defendant’s counsel, but the objection was overruled.
    9th. The plaintiff also offered in evidence the statement of W. F. Holmes, who acted as the agent of the defendant at Eochester, in effecting the insurance, which was objected to by the defendant’s counsel, and the objection overruled.
    10th. The court charged that Holmes, in answering the queigdons to him put, and making the statement by him signed, and dated on the 16th July, 1858, was to be deemed and regarded .in law as the agent of the company, and not of the plaintiff; to which exception was taken by the defendant.
    11th. The court further charged that the statement of Mr. Marsh, dated 16th July, was not a warranty. To which there w-as ah exception.
    12th. The court further charged (to which exception was taken) that if Fish answered frankly and truly all the questions put to him, then there was no concealment. The mere omission to state matters not called for by any specific or general question, would not be a concealment, and would not affect the validity of the policy.
    On appeal, the judgment was affirmed at a general term, m the seventh district, and the defendant appealed to this court.

      Benedict & Boardman, for the appellant.

      Lucian Birdseye, for the respondents.
   Wright, J.

The defendants, in form, contracted with Fish for an insurance upon his life.. In consideration of certain statements and representations made, and a premium of $117, to be paid annually, in advance, the defendants promised and agreed with Fish, his heirs or other legal representatives, to pay the sum of $5,000 to the plaintiff, within twenty days after the proof of the death of Fish,'provided the policy should then be in force. If this is to be regarded and treated as a contract with Fish to insure his own life, then the question attempted to be raised on the motion for a nonsuit, viz., that the plaintiff had no insurable interest in the life of Fish, ■ and, hence, that it was a gaming or wagering policy, cannot arise. If the contract is with the party whose life is insured, he may have the loss payable to his own representatives, or to his assignee or appointee; and whichever be the form, his own interest is the same. It can only be by holding the policy in substance and legal effect, that of a creditor upon the life of his debtor, that an interest was necessary on the part of the plaintiff to support it. -

I am inclined to regard the insurance as effected by the plaintiff on the life of Fish, although the policy, in form, purports to have been procured by the latter. The plaintiff applied for and obtained it as the creditor of Fish, to protect his interest as such creditor, in Fish’s life. He took the initiatory steps for procuring the policy; the application stated it to be for his benefit; he paid the original and all subsequent premiums; it was delivered to him, and he sues upon it as the party in interest, and as the only party connected with the policy who could maintain an action upon it. So far as the question of its validity is involved, it will, therefore, be treated as a contract, in substance, between the plaintiff and the defendants.

It is not at all .necessary to discuss the question whether a policy obtained by a party having no interest in the life insured, would be' void, either at common law or under our statute against betting and gaming. It may be conceded that at common law it would be a wager policy, and void, although it was distinctly held in the Exchequer Chamber, on error, in Dalby v. The India and London Life Assurance Company (80 Eng. Com. Law, 365; S. C., 28 Eng. Law & Eq., 312), that such an assurance was legal at common law. But the case is not embarrassed by any such question. It was distinctly shown and the proof in no way controverted, that the plaintiff wase a creditor of Fish, when the insurance was effected, in an amount far exceeding the sum named in the policy, and that at the time of the trial the debt was still wholly unpaid. He had, therefore, within all the cases, an insurable interest in the life of Fish, sufficient to support the policy. It was in no legal sense a wager contract.

Nor is it necessary to consider the question whether a life policy is in its nature a contract of indemnity, as marine and fire policies undoubtedly are. Eegarding the policy in this case as substantially a contract of indemnity against the loss of the plaintiff’s debt, and that, as an interest was required to support its inception, a continuance of that interest is essential to its perpetuity, there was no, pretense that the debt, or any part of it; had been paid. All that the case showed was that the statute of limitations had apparently run against the demand of the plaintiff at the death of Fish. But suppose the statute had attached, the interest of the plaintiff, as a creditor, in the continuance of the life of his debtor had not ceased entirely. The debt was not extinguished as -in the case of payment. It might be renewed by a new promise, and, indeed, without such promise be enforced by action, unless the defence of the statute was directly interposed.' It is not a legal presumption that when the statute of limitations has once run, the debtor will refuse to revive the debt, by a new promise, or interpose the defence of the statute in an action to recover it

But in the contract of life insurance it is enough that the party effecting the policy had an insurable interest, at its inception; and it- is not required that that interest should continue and exist at the time of the death of the person whose life is insured, to entitle the holder of the policy to recover. Policies of insurance against fire and marine -risks are properly contracts of indemnity, they are so in terms; but it is otherwise with life policies. The contract, says, Pareke, B., in Dalby v. The India & London Life Assurance Company (28 Eng. Law & Eq., 312), commonly called “ life assurance, when properly considered, is a mere contract to pay a certain sum of money on the death of. a person, in consideration of the due payment of a certain annuity for his life; the amount of the annuity being calculated in the first instance according to the probable duration of the life. * * * This species of assurance in no way resembles a contract of indemnity.” Indemnity being the general principle which gave rise to fire and marine insurance, by a mistaken analogy such a principle was at one time recognized in life insurance. This recognition grew out of the decision in Godsall v. Boldero (9 East, 72), decided in the King’s Bench, in 1807, which was followed and adopted by text writers on assurance, both in England and in this country, but which was overruled, on error, to the Exchequer Chamber, in 1854, in the case of Dalby v. The India & London Life Assurance Company, supra. In the latter case it was held that a life policy was not in its nature a contract of indemnity, but was what it purports to be on its face, a contract to pay a certain sum in the event of death: and if made by a person having an interest in the duration of the life, it was sufficient to make it valid in point of law that that interest existed at the time of making the policy. It seems remarkable to me that any other view should be taken of the question. The contract is not to make any loss good, or to make compensation. The debt is not insured. It is an absolute con tract to pay, not the amount of a loss or damage arising from a death, but a specified sum of -money upon the termination of the life insured.

The objection to the proof as to Fish’s health, prior to the application for the policy in suit, was properly overruled. Such proof was not so far immaterial as to make it error not to exclude it. The written statements and representations made to the defendants, at the time the policy was effected, were, that-Fish’s health was good; and that he had not been afflicted since childhood with liver complaint or general debility. The defendants, in their answer, assert the.falsity of these representations, and on the trial attempted, at least indirectly, to prove them to be so. I think it was competent for the plaintiff to prove that the representations were true, by showing that Fish was, in fact, in good health, and of a sound constitution. The witnesses to whom the inquiry was made, had known Fish intimately from 1848 down to the period when the policy was obtained, and were competent to testify to the fact of his general good health and soundness of constitution.

The offer of the defendants to prove the statements of Fish, made in the fall of 1853, in relation to his intemperate habits, was properly overruled. Fish was not, after the 'issuing to the plaintiff of the policy in suit, a party in interest in that contract, and could make no statement or admission that would divest the rights of the plaintiff. He was not, in any manner, the agent of the plaintiff, after the issuing, of the policy, and so could not bind him. It might, with equal propriety, be pretended that the defendants could prove, by the admissions of Fish, that he had resided in forbidden districts, or engaged in occupations prohibited by the policy, and so escape payment. One class of unsworn statements of Fish would be about as admissible as the other, to discharge the defendants from their contract.

The defendants made a general offer to prove, by experts in the business of life insurance, that a person who was in the habitual use, to excess, of intoxicating drinks, would not be considered an insurable subject. This was rightly excluded. It was entirely immaterial what description of subject, persons or companies engaged in the business of life insurance would consider good or bad risks. The inquiry did not relate to matters of science or skill, but called, in effect, for the Opinion of witnesses as to what persons engaged in a particular business. would consider prudent to do in certain cases. In Joice v. The Maine Insurance Company (45 Maine, 168), the defendants proposed to ask an expert in insurance business, whether, in his opinion, the rate of premium for insurance would be increased by vacating a dwelling house. The court held, that the question, whether certain specified facts would increase the rates of insurance upon the property insured, does not relate to matters of science and skill. It only called for the opinion of a witness upon the influence which certain facts would have upon others, and whether they would be induced thereby to charge higher rates of premium, and was inadmissible.

There was no error in proving by the witness Holmes, who acted as the agent of the defendants at Rochester, what occurred at the interview between him and Marsh. Marsh had been referred to, and had made a written statement as to the health and habits of Fish, which the defendants had introduced in evidence in connection with the testimony of Marsh himself, that he had no recollection of' ever having seen or signed the papers. The proof that Holmes took the paper to Marsh, read .the questions addressed to him, and wrote down the answers as he gave them, was, certainly, material and competent. Such proof tended wholly to negative any presumption that might otherwise possibly have been drawn from the defendant’s evidence that there had been fraud in procuring the statement of Marsh, or in endeavoring to palm off on the underwriters a worthless life.

The defendants’ agent, Holmes, transmitted to the company.', the papers on which the policy was issued, among which was a statement of his own, as agent or attorney. In this statement.he answered, that Fish did "not, in his opinion, indulge in any practices or habits which had or would impair his constitution and general health. The defendants had pleaded this answer, and averred that it was false, and was known to be so, both by Fish and the plaintiff. The precise question was put to Holmes, as a witness upon the stand, a general objection interposed, which was overruled, and the witness answered as he had previously in his written statement. I do not think it was error to allow the question to be answered. The testimony bore directly upon the issue presented by the defendants’ answer. It is now urged that the objection to the question should have been sustained: 1st. For the reason that it was not one of science, but related to a common place fact, and called, not for the knowledge of the witness, but for his opinion as to the existence of the fact; and, 2d. That if the question was one of science, the witness -was not shown to have possessed any scientific skill on the subject. But the answer is, that no such grounds of' objection were pointed out or urged to the judges.

Amongst the papers on the faith of which the policy was issued was, a written statement, in the form of questions and answers, of Dr. Shipman, the family physician of Fish. This statement was introduced in evidence by the defendants, and it was claimed that his answers were warranties. Every important answer was an expression of opinion or belief. The defendants, in their answer to the complaint, had put in issue the truth of the representations in the statement. On the trial, Shipman was produced as a witness by the plaintiff, who testified to his examination of Fish in reference to insurance upon his life; that he examined him carefully, and he appeared, at the time, to be in very good health. The written statement which he had signed, after such examination, was then shown to him, and he was then asked the question, “Did you then believe the answers to those questions (referring to the questions in the statement) to be correct?” This was objected to generally, and the objection overruled. It was not error. The defendants, in these answers, had, in substance, alleged a fraud ulent statement to have been made by Dr. Shipman, in saying that he believed what he did not believe. Such a conclusion, I think, the plaintiff had the right to exclude by the proof covered by the exception. All, in fact, the inquiry amounted to was, whether the answers in the witness’ statement had been made truthfully and in good faith.

On the cross-examination of Dr.. Shipman, the defendants’ counsel put this question: “If you had known that Fish did habitually indulge in-the use of intoxicating drinks, to excess, would you have regarded that as a habit or practice that would impair his health or constitution?” and subsequently, on the cross-examination of Dr. Dean, the medical examiner of the company, he was asked: “If you had known at the time you had made this examination (referring to the examination made for' the defendants), that Fish was in the habit of using intoxicating liquors to excess, would you have regarded his life healthy and the risk good ?” An objection by the plaintiff to these questions was sustained by the court. This testimony was incompetent, both on principle and authority. It was of no consequence what, in the opinion of these «physicians in certain cases, and under a certain state of facts, would be a good or bad risk for a life insurance company to take, or what circumstances should be considered on the question of increasing or lessening the rates of insurance. These witnesses might give their opinion on matters of science connected with their profession; but were not receivable to state their views of the manner in which others would probably be influenced, if certain specified facts existed. (Jefferson Ins. Co. v. Cotheal, 7 Wend., 72, 78, 79; Dwell v. Bederley, 1 Holt, 283; Campbell v. Rickards, 5 Barn. & Adolph., 480.)

It was not error to admit the statements of Dr. Dean, the defendants’ examining physician, and Holmes, their agent, at Rochester. These were parts of the papers on which the policy was issued, as appeared from the defendants’ answer. The defendants themselves had introduced the other papers, being all, except the statements of their agents, and made them part of the evidence in the case. There was no impropriety under such circumstances, that all the papers should appear in the case.

It was the right of the plaintiff to lay before the jury all the papers on which the company acted, when it was decided to grant the policy.

It was not erroneous for the court to charge that Holmes, ;in making his statement, under date of 16th July, 1858, was to be deemed and regarded in law as the agent of the company, and not of the plaintiff. It is very clear from the evidence that, at the time the policy was effected, Holmes was acting as the agent of the defendants at Rochester, and it was through him the business was negotiated. There was no proof showing that Holmes had any agency, whatever, for the plaintiff,.or for Fish, or that either of them knew that he was to make, or did make any such statement. _ The paper signed by him, on its face, purports to be that of an agent of the defendants.

The exception to that part of the charge in which the jury were instructed that the statement of Marsh was not a warranty, was not well taken. This statement was not so referred to in the policy as to become a part of it, or be made a warranty. The policy, in terms, states that it was issued upon the faith of certain statements and representations, dated July 15th, 1853, and on file, respecting the life, health and medical history of Fish. These were the statements of Fish and Dr. Shipman. Marsh’s statement was made on the 16th July, 1853, and there was no reference to it in the application of Fish, nor did either Fish or the plaintiff procure it to be made, or know anything of the contents of the paper. It seems that it was a rule of the company to require of the person applying for insurance, a reference to some third person, from whom information might be obtained respecting his general health and habits of life. In this case, Fish referred to Marsh, and Holmes, the agent of the company, procured the statement of the latter, and forwarded it, with the other papers, to the office in Connecticut. The statement was not made as a part of the application of Fish or the plaintiff, nor was such application based upon it. It not being furnished by the plaintiff or Fish, nor the application based upon .it, it was not their statement', and hence not their warranty. A statement which the plain tiff did not furnish or rely upon, and of the nature of which he had no knowledge, cannot be converted" by the defendants into a warranty to defeat the policy, although they may have been, to some extent, influenced by such statement in issuing it. The court went quite far enough, in instructing the jury, in substance, that as Marsh had been referred to as an acquaintance of Fish, the plaintiff would be responsible for the truth and honesty of his statements, and if, in point of fact, they were untrue, whether such untruth originated in fraud, or mere negligence or want of recollection, it would avoid the policy.

The third and only remaining branch of the charge singled out for exception, was the instruction, “ that if Fish answered frankly and truly all the questions put to him, then there was no concealment. The mere omission to state matter not called for by any specific or general question, would not be a concealment, and would not affect the validity of the policy.” This was not wrong. It may be conceded that if the applicant, when a specific or even general question is put to him, which would elicit a fact material to the risk, untruly stated or concealed the fact, it would vitiate the policy ; but I know of no case in the law of life or fire insurance, in which the insurers, having framed and put to -the insured, and having had fully answered by him, a series of questions, calling for such information as they desired touching the subject insured, have been discharged from their contract because the insured did not go farther, and state what was not called for in the interrogatoi’ies. As was said by the learned judge, in the court "below: “The presumption is, that the insurers questioned the party upon all subjects which they deemed material, and all which were in the contemplation of the parties at the time, and beyond that, clearly a party is not bound to disclose.

The judgment of the Supreme Court should be affirmed.

Balcom, J.

When the policy was issued, Fish was indebted to the plaintiff in a sum exceeding $5,000, which he had not paid at the time of his death, on the 24th day of February, 1857. But it was not shown but that Fish could have avoided paying such debt, if he had been sued therefor, at any time within two years previous to his death, by setting up the defence of the statute of limitations. By one of the conditions annexed to the policy it was agreed that no greater sum should be paid to the plaintiff than the amount of the debt due. him, and that the policy was subject to interest. The defendants’ counsel moved for a nonsuit, on the grounds, among others, that the plaintiff had not shown he had any interest in the life of Fish, and that the demand of the former against the latter was outlawed long before the action was commenced. And the defendants’ counsel now insists that the plaintiff should have been nonsuited, for the reason that his demand against Fish was barred by the statute of limitations, at the time he died. This position is clearly untenable. The defendants could not say Fish ever refused, or would have refused, to pay the debt he owed the plaintiff, on that ground. That was a matter personal to himself, and a defence which he alone could interpose in an action for the debt. He was morally bound to pay the debt, and the defendants could not repudiate it for him. The plaintiff, therefore, had such an interest in the life of Fish, at the time he died, as kept the policy good. There is no' adjudged case which holds this, but it is so upon principle. The moral obligation to pay a debt, barred by the statute of limitations, is a good consideration for a promise to pay it, and the presumption is that an honest man, if he has the means, will pay such a debt. It seems that a creditor of an infant has such an interest in his life as enables him to obtain a valid policy on his life, because the infant is the only person .who can repudiate his debts, for his non-age at the time of contracting them. (Reynolds on Life Insurance, 60.)

In respect to the answers Fish made touching his habits and health, when the application for the policy was made, the judge charged the jury: “If he answered frankly and truly all the questions put to him, then there was no concealment. The mere omission to state matter not called for by any specific or general question would not be a concealment, and would not affect the validity of the policy.” There was no error in this. If the defendants desired more information respecting the habits -of Fish, they should have asked him more specific questions. He was not bound to inform them whether he ate or drank much or little, or how often he did either, for the reason he was not interrogated as to such habits, and he could not have supposed the defendants desired information respecting the same, and, therefore, was not guilty of a fraudulent concealment in the omission to give it.

The judge did not err in any other part of his charge, or in admitting or rejecting evidence, and the judgment of the Supreme Court should be affirmed.

All the judges concurred, except Emott, J., who was for reversal, on the ground of want of insurable interest in the plaintiff, after the statute of limitations had run on his action against Fish; and Seldeñ, J., who did not sit in the case.

Judgment affirmed.


author: Selden, J.

text:
    The Shaler and Hall Quarry Company v. Bliss et al.

    The liability, under ch. 40 of 1848, § 12, of a trustee of a manufacturing company, who was in office when default was made in publishing the required annual report, is limited to debts contracted while he remains trustee, and does not include a debt contracted after he ceased to be a . trustee,' though while the default continued.
    The Hudson River Stone Dressing Company was duly organized as'a corporation, under the general manufacturing law of the State of Hew York, on the 31st day of March, 1853, and the defendants on that day became trustees of the company, and continued to be such trustees until the 18th day of April,. 1854, when they ceased, to be trustees, and 'other persons were élected in their places.
    After the 18th, and on or about the 19th of April, 1854, the plaintiff, a corporation duly- organized under the laws of the State of Connecticut, sold to the Hudson Eiver Stone Dressing Company, a ■ quantity of stone,* of the value of $2,042.15, and received the acceptances of said company therefor, which at maturity were dishonored.
    The Hudson River Stone Dressing Company did not, within twenty days from the 1st of January, 1854, make the report required by the 12th section of the act under which the company was organized, nor was such report made until July 81, 1854.
    In June, 1858, this action was commenced, the plaintiff claiming that the defendants were liable, under the provisions of the 12th section of the general manufacturing law, for the payment of said dishonored drafts. The defendants denied their liability.
    The action was tried at the Hew York circuit, in June, 1859, before Mr. Justice Sutheuland, without a jury, who found the facts as above stated, and decided that the defendants were not liable for the demand.
    The judgment entered in favor of the defendants, at the special term, in pursuance of said decision, was affirmed at the general term, and from that affirmance the plaintiff brought the present appeal. The cause was submitted here on printed briefs, by

      H. & C. S. Andrews, for the appellant.

      C. F. Sanford, for the respondents.
   Selden, J.

' The section of the statute under which a recovery is sought in this action, is in the following words: “Every such company shall annually, within twenty days from the first day of January, make a report which shall be published in some newspaper, published in the town, city or. village, or if there be no newspaper published in said town, city or village, then in some newspaper published nearest the place where the business of said company is carried on, which shall state the amount of capital and the proportion actually paid in, and the amount of its existing debts, which report shall be signed by the president and a majority of the trustees, and shall be verified by the oath of the president or secretary of said company, and filed in the office of the clerk of the county where the business of the company shall be carried on; and if any of' said companies shall fail so to do, all tl e trustees of the company shall be jointly and severally liable foroall the debts of the company then existing, and for all that shall be contracted before such report shall "be made.”

It is insisted by the plaintiffs’ counsel, and doubtless correctly, that the legislature, in adopting this section, had in view that provision of the Constitution of 1846, which declares that “ dues from corporations shall be secured by such individual liability of the corporators, and other means, as may be prescribed by law.” The object of the provision, so fartas relates to creditors, or persons dealing with the corporation, appears to have been to give such notoriety to the pecuniary condition of the company, through the publication of its annual statements, as to deprive it of credit, if it should be unworthy of it, and to give to persons to whom it might become indebted while the statement should be withheld, the personal responsibility of the trustees for such indebtedness. • So much of that object as looks to the security of the creditor dealing with the corporation whilst it is in default, is accomplished by giving to the creditor the personal responsibility of those who are trustees" "when his debt is created. The theory of the statute in this respect, and of the present action, is, that the plaintiff, not finding the statement published which would have enabled him to decide yjjrether the corporation was entitled to credit, entered into the contract in reliance upon the personal responsibility of the trustees. Upon that assumption, its reliance must have been upon the trustees who were such when the debt was created, and not upon persons who had ceased to be, or might thereafter become, trustees. The plaintiff cannot claim that it gave credit, under the provisions of the statute in question, to persons who were not trustees when the debt was contracted

The true interpretation of the statute, I think, is, that, three circumstances must concur in point of time, to render a trustee liable, viz.: the existence of the debt; the existence of the default in making the report; and the trusteeship. Where these concur, the trustee is liable for all debts, if he was such trustee when the default occurred. If he was not a trustee at the time of the default, but became such afterwards, then his liability is limited to debts created while he remains trustee, and while the default continues. ' These positions are all substantially embraced in the decisions of this court in the cases of Garrison v. Howe (17 N. Y., 458), and Boughton v. Otis (21 id., 261). The plain letter of the statute, as well as its spirit, is against the liability of the defendants in this case. The only material words are “the trustees” shall be liable for the -debts “ that shall be contracted before such report shall be made.” Only those who are trustees when the debts are contracted come within these terms.

The judgment of the Supreme Court should be affirmed.

Marvin , J., delivered an opinion to the same effect, and all the judges concurred.

•Judgment affirmed.


author: Denio, Ch. J. Emott, J.

text:
    Mitchell v. Van Buren et al.

    Upon a motion by a subsequent judgment creditor to set aside judgments confessed by his debtor under § 383 of the Code, the court may allow an amendment supporting the judgment by the signing and verifying a new statement stating the facts more specifically.
    Appeal from the Supreme Court. On the 11th of October, 1856, John M. Olmstead and Horace Hanford recovered a judgment against Harmon Van Burén, for $337.77, and Levi Olmstead another judgment against the same defendant, for $406.50. Both these judgments were upon confession, and they were duly docketed in Delaware county.
    In March, 1860, Harmon Mitchell recovered a judgment against Van Burén in an action; the particulars of this judgment are not stated, but it was docketed in the same county.
    • In February, 1862, Mitchel made a motion to set aside the judgments of the Olmsteads and Hanford, on account of the insufficiency of the statements. The motion was founded xxpon the confessions and records of these judgments, and upon an affidavit, stating the facts above quoted, and also that Van Burén was insolvent; that his real estate, upon which these judgments were liens, was about to be sold under foreclosures, and that there were other judgments against him.
    The motion was opposed, with affidavits showing the particulars and consideration of the debts for which the Olmstead judgments were confessed; that they were confessed in good faith, and that the insufficiency of the statements was occasioned by the ignorance 'of the person who drew them, who was not a lawyer; that the debtor continued to transact business afterwards, and that had the motion been made and the judgments set aside at an earlier day, the plaintiffs might, nevertheless, have collected their debts.
    An order was made at the special term, granting the motion unless new and verified statements should be subjoined to the judgments, stating the facts more specifically; granting leave to amend the judgments-by such statements, and denying the motion" if the judgments were so amended, and upon payment of costs. The order to be without prejudice to the creditors making the motion to bring an action to vacate the judgments.
    The order was affirmed at the general term, on appeal, with costs, and the moving party in the court below appealed to this court.

      Abraham, Becker, for the appellant.

      William, Gleason, for the respondents.
   Denio, Ch. J.

The question involved in this appeal is, whether the Supreme Court possesses power to authorize an amendment of the statement required to be signed and verified, upon the confession of a judgment, under sections 382, 383 and 384 of the Code. It has been plausibly argued, that the judgments contemplated by these provisions are statutory proceedings, as distinguished from judgments of courts, and that if a mistake be made, so that it could be said that the statute has not been substantially complied with, the proceeding is void and incapable of amendment, the courts having no more power in the matter than they would have to relieve against the omission to record a deed or mortgage, or any other thing which is wholly regulated by statute, irrespective of the courts'. But I think the argument is not warranted by the language of the legislature.' The last mentioned section expressly declares that, upon the statement being filed, the clerk shall enter in the judgment book, a judgment of the Supreme or said Superior Court. , These courts, as is well known, have a jurisdiction over their records, and have always been accustomed to relieve, upon a summary application, against the errors and mistakes of their officers and the suitors of the courts, by amendments and by allowing papers to be filed and entries made nunc pro tunc in, furtherance of justice. The proceedings of the appellant in the matter under review, can only be justified upon this theory. For if the judgment is to be considered as a matter unconnected with the court, there would have been no jurisdiction to entertain the appellant’s motion to set aside the judgment; and the question whether it conformed to the statute, or was void for the want of such conformity, could:only be litigated in a regular action in which its validity should be collaterally brought in question. In my opinion, the court had the same power which they would have possessed if it had been rendered in an action actually pending in the court.

The courts of original jurisdiction have always exercised a large and very beneficial power, in supplying deficiencies or remedying defects in judgments and other judicial proceedings existing in their courts. But it will not be necessary to refer to the cases, since the jurisdiction has been affirmed in its greatest extent by the legislature. The 173 d section of the Code declares what may be done in this respect by the court, in furtherance of justice, and on such terms as it may judge proper It may amend any proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case. This is very broad language, and plainly embraces a case like the present, where it was shown that the proceeding was in good faith, and the intention of the parties was to create valid judgments for debts honestly due, .to the amount stated in the judgment. But we are only concerned with the question of jurisdiction. The Supreme Court, having power to permit the amendment, had the exclusive right to determine whether a proper case was made for the exercise of its jurisdiction, and to prescribe the terms upon which the permission should be accorded. It is a jurisdiction of the same kind with that which it exercises in relieving against defaults and slips in practice, and its determinations in such matters are not reviewable on appeal to this court. I think the order should be affirmed.

Wright, Selden, Rosekrans, Balcom and Marvin, Js., concurred.

Emott, J.

(dissenting). The character and effect of sections 382 and 383 of the Code, relative to judgments by confession have been too well settled by the authority of the Supreme Court and of this court to be any longer open to question. The requisitions of the Code in regard to the confession of judgments, are not precisely conditions precedent, which must be complied with, or there is no judgment. A judgment by confession, which does not conform to what the Code prescribes, in respect to the particularity of the statement of the debt, or satisfy its requirements in any and every respect, is not utterly void as to all parties and for all purposes. It is nevertheless good as between the parties, and it cannot be avoided collaterally by third persons, but must be directly impeached and set aside. (Sheldon v. Stryker, 34 Barb., 116; Miller v. Earle, 24 N. Y., 110; Neusbaum v. Keim, id., 325. Such a judgment may be amended, but with what effect and how far to the prejudice of other ereditors is the question here. On the other hand, a failure to comply with the requirements of the statute in respect to the contents of a statement upon which a judgment is to be entered is not a mere irregularity. The right to move to set it aside is not restricted by the statute limitation of a year, which applies to all irregularities. What is more decisive is that such a defect in a judgment is proper ground for an action, and for the exercise of the equitable power of this court to se.t it aside. (Dunham v. Waterman, 17 N. Y., 9.) The effect of the Code is, as was stated in that case, that a judgment confessed without compliance with its provisions is to be deemed and held to be fraudulent and void as to other Iona fide judgment creditors. The same view has been expressed and adhered to in the most recent cases. (24 N. Y., 110, 325., cited above.) The power to set aside such judgments upon motion is an equitable power, and the original and ordinary jurisdicdiction to proceed against them is in equity. The Code was intended not only to regulate and simplify the manner of confessing judgments, but to provide that they should exhibit the truth, and the whole of it, in regard to their consideration; or if they did not they should be held fraudulent as to other judgment creditors. Its provisions have been held to restore, in this respect, the effect of the statute of 1818 (Laws of 1818, chap. 259, sec. 8), which were applied in the case of Lowber v. Hackett (10 Johns., 149). The 8th section of that act, after requiring that at the time of filing every record of judgment by confession, the party making the same should file therewith a statement and specification of the nature and consideration of the debt or demand on which such judgment is confessed, enacted that in default of a compliance with this •requirement, such judgment should be decreed and adjudged fraudulent as regards any. other bona fide creditors, and every bona fide purchaser, for valuable consideration, of any lands bound or affected by such judgment. The construction put by the courts upon the sections of the Code to which I have referred, is that they must be read as if they contained a similar' clause, and similar consequences must follow from the failure to comply with them.

It is to be observed, then, that in every case in which a judgment is confessed without complying with the requisites of the law, this is not to be evidence of fraud or of a design to defraud, nor merely to create a presumption of fraud, but it renders the judgment fraudulent and, therefore, void as to other judgment creditors. The defect is not supplied by proof of good faith or a sufficient consideration, nor can the presumption be overcome by such evidence. A subsequent judgment creditor may attack such a judgment by motion or by action, apd when he has instituted a proceeding in either form, he has commenced the assertion of a right which cannot be defeated by a subsequent amendment. It would hardly be maintained that in an action to set aside such a judgment a court would have a right to dismiss the plaintiff with a decree amending the confession, curing the defect and removing what the statute'makes a fraud, upon any terms or for any reasons excusing the failure to comply with the law. " If.the decision which was rendered on this motion had been given in an action brought for a similar purpose, I suppose that it could not stand for a moment But the rights of the parties and the scope of the proceeding is the same, whether the relief is sought by motion or by action. The power to set aside judgments upon motion for such a cause, is an equitable power, and is asserted and exercised in analogy to proceedings by suit in a strictly equitable forum. The permission of an amendment to relieve the party from the consequences of a failure to observe the provisions of the law in those cases, is not a matter of discretion with the court, or if it can be considered to rest in such a discretion, it is a discretion governed by legal rules, and whose exercise can be corrected by an appellate tribunal when those rules are transgressed. The statute, as the court have construed it, makes an untrue or an insufficient statement upon a confession of judgment a fraud upon other creditors, and they have consequently a legal right to avoid it. The Supreme Court, in making the order from which this appeal was taken, in effect denied this right, on account of the ignorance and honest intentions of the plaintiff in the judgment, and the justice of his debt. But the judgments confessed to the Olmsteds and Hanford were fraudulent and void as to Mitchei, not because they were not in fact for honest debts, but because they were not accompanied by such a statement of the consideration and particulars of the debts, as the law requires. The proof given by the counter affidavits could not cure this difficulty, and the Supreme Court erred in amending the judgments and preserving their lien. Their order should be reversed with costs and an order entered vacating these judgments absolutely.

Davies, J., concurred in this opinion.

Order affirmed.


author: Davies, J.

text:
    The People, ex rel. Cook, v. Nearing et al.

    Digging a ditch upon the land of a private owner, under the authority of the legislature, for the purpose of draining such land and that of the adjoining proprietors, is, it seems, a talcing of property within art. 1, §§ 6, 7, of the Constitution of 1846; and the act of the legislature professing to authorize such taking is so far void, unless it provides for tho payment of a just compensation, to be ascertained by" a jury or by commissioners appointed by a court of record.
    The mode, however, of apportioning and assessing such compensation and the expenses of executing the work, upon those benefited thereby, is wholly within the discretion of the legislature.
    pon a certiorari to the commissioners charged with the execution of such a work, -and the assessment of the expenses of its execution, the only question brought up is on the legality and regularity of their proceedings' in making the assessment.
    The relator's remedy for the invasion of his land is trespass or ejectment.
    Writ of error to the Supreme Court. The return showed a writ of certiorari from that court to the defendants, as commissioners, under certain acts of the legislature, for draining certain wet and swamp lands in the county of Onondaga. It recited that the defendants had caused a ditch or drain to be dug through the land of Eobert Cook, the relator, to his serious damage and loss; and that the defendants had made an assessment upon the lands of the relator and others for the purpose of defraying the expenses of the several drains and,, ditches mentioned in the act, and had advertised the lands of Cook and others for sale for non-payment of such assessment. The writ required a return of all the proceedings of the defendants, as commissioners under said drainage acts. The defendants made a return, only so much of which appeared ' in the error book as admitted that they, had cut the ditches under the authority of the acts referred to: that they had assessed the expenses; that the relator had appealed from such assessment to the County Court, which appointed new commissioners, who made a new assessment, the collection of which the defendants were proceeding to enforce by a sale of the relator’s lands.
    It appeared that the parties, by stipulation, submitted to the Supreme Court only' the constitutionality of the acts of the legislature authorizing the proceedings of the defendants. The court, at general term in the fifth district, held the acts to be constitutional, and rendered judgment confirming the proceedings of the commissioners in cutting the drains and in collecting the. assessments. The relator appealed to this court, where the cause was submitted on printed briefs, by
    D. & D. F. Gott, for the appellant.

      Pratt & Mitchell, for the respondents.
   Davies, J.

The certiorari avers, and it is admitted by the return, that the defendants have entered upon the relator’s land, and have caused and procured a ditch or drain to be cut or dug upon the said land, for the distance of about one hundred and seventy rods. The respondents claim the right so to do, under and by virtue of an act of the legislature passed April 16, 1858. (Laws of 1858, ch. 266.) This act was amended in 1860. (Laws of 1860, ch. 258.) By the original act, the commissioners named therein were authorized to drain certain wet and swamp lands therein described, and for that purpose to- cut the necessary ditch and side drains of sufficient depth and width to drain the lands aforesaid. The commissioners were authorized to enter upon and occupy such lands as might be necessary for the execution of the work authorized by the act. In pursuance of such authority, they entered upon and occupied the lands of the relator, and dug thereon the ditch above mentioned. This, I think, may be regarded as a taking or appropriation of the relator’s lands for a public purpose, and’which could not be lawfully done without provision being made for a just recompense or compensation therefor.

Accordingly, it was provided, by the seventh section of the act, that the expenses incurred by the commissioners in the performance of their duties, and any damages resulting as a consequence of such work, should be justly and equitably assessed by the said commissioners upon the owners of the lands benefited thereby. -This assessment for benefit could rightfully be made by the commissioners under the authority of the legislature. There is no constitutional provision having any application to such an assessment.’ The persons by whom, and the mode and manner of making it, are subject only to legislative discretion. The compensation for the land taken, or, in the language of the act authorizing this work to be done, the damage resulting as a consequence of performing it, must, in conformity with the provisions of the Constitution, be ascertained by a jury, or by not less than three commissioners, appointed by a court of record. (Cons, of 1846, §7, art. 1.)

The compensation or damage, therefore, could only be fixed by a jury, or by the commissioners appointed by a court of record; and it was not competent for the legislature to appoint commissioners to fix the same, or devolve the duty upon any" body or set of men, other than those indicated by the Constitution. When such compensation or damage had been constitutionally fixed and ascertained, then the legislature might lawfully direct the mode and manner of assessing or apportioning said damages upon the persons or property benefited thereby, and designate or appoint the persons to make such assessment or apportionment. (People v. Mayor of Brooklyn, 4 Comst., 419.) The act of 1860 does not obviate the difficulty and remove the objections suggested. By that act, provision is made that if any person shall deem himself aggrieved by the assessment made by the commissioners, that is, the assessment or apportionment of benefit made by.them, such person may appeal to the County Court, who shall, thereupon, appoint three commissioners to reassess the expenses of said improve • ment and such expenses. This is the only authority, conferred by the act of 1860, upon the commissioners appointed by the County Court, and therefore they could not, and we must assume that they did not, ascertain and fix any damages or compensation to the relator, for the taking and appropriating of his land for the purposes of such improvement. The acts in question having, therefore, made no legal provision for the ascertainment of the compensation to be paid to the relator, for the taking and appropriating of his land for the purposes of the act, or made any provision for the payment of such compensation or damage, they must be held to be unconstitutional in this respect, and the relator will have his legal remedy for the trespass, if any, which may have been committed. But it was perfectly competent, as has already been observed, for the commissioners appointed by the legislature, or those selected by the County Court, to make the assessment or apportionment of the expenses or damages incurred in performing the work, upon the persons and property benefited thereby. It is not suggested, that either set of commissioners have made such assessment upon any erroneous principle, or that any legal rules have been violated. It is not suggested, that such expenses or damages have not been assessed or apportioned upon all the lands benefited by the improvement, justly and reasonably; and there is, therefore, no legal reason appearing why this assessment should be vacated and set aside. The Supreme Court would have been fully authorized, by well settled authority, upon the facts appearing in this case, to have quashed the certiorari issued therein. (People v. Mayor of N. Y., 5 Barb., 43, and cases there cited.) In my opinion, the assessment made, either by the commissioners appointed by the legislature, or that made by the commissioners selected by the County Court, is not shown to be illegal; and the judgment of the Supreme Court should be affirmed, with costs.

All the judges were for affirmance. Denio, Ch. J., Selden, Emott, Rosekbans and Marvin, Js., thought the acts unconstitutional, in not providing for conipensation to .the owners of the' lands occupied by the ditches; Wright, J., thought otherwise; Balcom, J., reserved his opinion on that point; Rosekeans, J., thought that no assessment could be made under the acts, and was for affirmance on account of the defectiveness of the error book.

Judgment affirmed.