author:
Johnson, J.
      Denio, Ch. J.

text:
    Isaac Snyder v. Eliza A. Plass, administratrix, &c.
    Where a road is ordered by commissioners of highways, to be laid out, for a part of the distance, three rods in width, and for the residue of the distance, which is on. the bed or track of an old road, used for more than twenty years, two rods in width, the proceedings are not vitiated and rendered void by the provision in the order allowing a road to be opened which is only two rods wide.
    Regarding the first part of the order laying out the road, up to the point of-intersection with the old road, SS one in perfect accordance with the powers of the commissioners, and the residue, which follows the old road, as a description of the old road to be recorded, and for the purpose of having it opened two rods in width, by a subsequent order to that effect, the whole is consistent and harmonious, and entirely within the power of the commissioners.
    Viewing the proceedings in regard to the old road as proceedings to open an existing highway, merely, even if the order of the commissioner interferes with the orchard of an individual, they do not come within the language of the prohibition of the statute against laying out a highway through an orchard.
    Yet it seems that in such a case the commissioners would have no right to de- . prive an owner of the benefit of his fruit trees in an orchard, of the growth of four years or over, by an order for the opening of an old road to' the width of two rods.
    Even if the order for opening the old road be deemed wholly void, it can not affect the validity of the order for laying out the new road, nor the order for opening the same; nor will such invalidity justify an action of trespass against an overseer of highways for opening and working the new part of the highway, under the direction of the commissioners of highways.
    This is an appeal by the defendant from a judgment rendered against John Plass, her intestate, by the Supreme Court, in the third district. The action was brought to recover damages for an alleged unlawful entry by Plass upon the plaintiff’s premises, in the town of Saugerties and county of ' Ulster; and the defense was that the locus in quo was a public highway, and that the entry by Plass was as an overseer of highways, for the town of Saugerties for the purpose of opening and working the road under the directions of the commissioners of highways for said town. The cause was tried before Mr. Justice Gould, without a jury, at the Ulster circuit, in May, 1860, and the plaintiff had a verdict. The justice before whom the cause was tried found the following facts: ’That on the 14th of November, 1855, John Plass and Ahraham A. Dewitt made applicatión in writing to the commissioners of highways of the town of Saugerties, to lay out a highway in said town. That in said application the general route of the road, the respective termini, and the parcels of land through which the same would run, were given. The applicants were both residents of the town and liable to be assessed for highway labor therein. The applicants caused', the proper notices to be posted of a meeting of the freeholders on the 26th of November, 1855, to examine the ground •and certify in respect to the necessity of the proposed road. On the 26th of November, 1855, twelve competent freeholders of the tow"n appeared, were duly sworn, examined the route, heard the reasons for and against the road, and signed a certificate that the road was necessary, and the same was placed in the hands of the commissioners of highways. The commissioners thereupon gave notice that they would meet on the 27th of June, 1856, to decide upon the application; and on that day they met and heard the parties interested, and determined that- the road should be laid out, and made an order to that effect, incorporating a survey of the road; and on the 14th of August, 1856, filed the same in the office of the town clerk of Saugerties. That a portion of the road so laid out between the points at" which it strikes the old road, to the point in said order" called “the centre of the road known as the old churchland lane, near a hickory tree, in range with an apple tree/’ was laid out by the commissioners over and covering the bed of an old road used as a public highway for twenty years, the track being not over seven feet wide, bounded on the west by a side hill, and so situate as to be conveniently widened only on the east side, and that part of the survey and order was for a road only two rods' wide. That at the point in this portion of the road included between the division line of Isaac Snyder and the churchland lane, the easterly line of the survey extended into an orchard of the plaintiff of- the growth of seven years and over. On the 25th of August, 1856, the plaintiff appealed from the determination of ¿he commissioners, and thereupon referees were appointed by the Ulster county court to hear the appeal. It was not suggested in the notice of appeal that the order was void because the road was laid out only two rods wide. The referees affirmed the acts of the commissioners, and the damages to land owners were ascertained in the manner directed by statute. The commissioners thereupon directed the removal of fences upon the highway so laid out, as required by the statute. In order to carry their determination into effect the commissioners of highways directed the original defendant John Plass, who was a regular overseer of the road district in question, to enter upon the road and dig, excavate and open the same. In pursuance of this order, Plass proceeded to discharge his duty, and entered upon a portion of the plaintiff’s premises taken for said road for that purpose, and commenced the work of digging and excavation, but no part of the entering upon, digging or other injuries complained of by the plaintiff, were upon that section of the road laid out but two rods wide, or on that section the survey of which bordered upon or extended on to the plaintiff’s orchard or door yard, but such digging was on that portion laid out three rods wide, and did not extend into or adjoin the orchard. The said justice, upon the foregoing facts, decided as conclusions of law,
    1st. That, inasmuch as one part of the proposed road was surveyed and laid out less than three rods wide, the order was void, and the commissioners, and all under them, were' trespassers in carrying out said order. To which the defendant’s counsel excepted.
    2d. That the whole proceeding under said order was a laying out of a new road, and no part thereof could be considered the widening of an old road under the statute, as the order purported on' its face to be the laying out of a new ro.ad. The proceeding in law was a laying out of a new road, and that the whole proceeding was void by reason of the same being laid out in any part but two rods wide. To which conclusion the defendant’s counsel excepted.
    3d. That an old road widened to two rods is a road laid out within the meaning of that section of the statute which forbids any public or private road to be laid out through any orchard or garden without the consent of the owners thereof, if such orchard be of the growth of, or said garden have been used for four years or more, and that no highway can be widened so as to encroach, extend into, or upon such orchard or garden, without the consent of the owner. And that, were the proceedings in regard to that part of said road which embraced the old track a virtual widening of the old road, the fact that the survey under which that portion of said road was thus widened extended into said orchard rendered the proceedings void.
    The defendant duly excepted and appealed to the general term, where the judgment at the circuit was affirmed; and the defendant then appealed to this court.

      John JET. Beynolds, for the appellant.
    I. The Supreme Court decided that the acts of the commissioners in laying out the road and the proceedings on appeal affirming the same, were absolutely void, and hence, that the defendant was not justified as an overseer of highways in obeying the order of the commissioners, and entering on the land of the plaintiff for the purpose of opening and working the l'oad. 1. The proceedings of the applicants, freeholders, commissioners and referees, appear to have been regular, and they are not objected to; and make out a complete defense to the action, unless, as the court held, the whole proceeding was void for want of power in the commissioners to make the order. 2. The application was to “lay out” a highway, and the order of the commissioners is, that a highway “be laid out” according to the application. A part of the highway referred to in the order, being on the bed or track of an old road, used for more than twenty years, was directed to be of two rods in width, and the residue to be three rods wide. The decision below was, that the proceeding was to lay out a new road, and that the commissioners had no power to lay out a road less than three rods wide, and because this order allowed a road of two rods to be opened, it vitiated the whole proceeding, and made the defendant a trespasser, although he commenced to open that part of the road, which was to be three rods wide, and did not interfere with the part which was to be two rods wide.
    II. The order .of the commissioners of highways was not void for the reason which prevailed below. 1, "The proceedings, given by statute for laying out, altering and discontinuing highways, are in each case the same. The application must substantially indicate the line of road to be acted on. And “when the commissioners of highways shall lay out,
      alter or discontinue any road, either upon application to them or otherwise, they shall incorporate such survey in an order to be signed by them, &c.” which is to be filed and recorded. (2 E. S. 5th ed. p. 394, §§ 69, 70.) 2. Section 119, second revised statutes, page 403, (5th ed.) provides that all public roads laid out by the commissioners, of highways of any town shall not he less than three rods wide, and all private roads shall not be more than three rods wide. 3. It is also provided that all roads not recorded which- have been used as public highways for twenty years or more, shall be deemed public highways, but may be altered in conformity to the provisions of the statute. And it is the duty of the commissioners of highways to order the overseers of highways to open all roads to the width of two rods at least, which they shall judge to have been used as public highways for twenty years. (2 R. S. 406, 5th ed, §§ 135, 136.) 4. The order in the present case lays out a road three rods wide for a certain distance -and so far as it is entirely a new road. When-it strikes the old road, which has been used as a public highway for twenty years or more, it is then, to the end, to be opened to the width of two rods. 5. If the commissioners had in the order directed the opening of the new part as a road three rods wide, and then directed the old part to be opened to the width of two rods, no objection could have been made to it. This is what they have done, in substance, and it is not a void proceeding. 6. Even if so much of the order as limits the width of the old part to two rods, is not allowed by statute, it does not vitiate and render void the order so far as it lays out a road three rods wide. 7. The two parts of the road are distinct and separate, and if the order is effectual as to the part three rods wide, there will be a continuous public road between the two extreme termini; for the old road will continue, and to it .is added the new road of three rods in width^ 8. The entry of Plass was upon the part of the road laid out to the width of three rods, and he was fully justified by the order of the commissioners, and the defendant was entitled to judgment.
    III. There was no evidence to show that any part of the road, as located, interfered with the plaintiff’s orchard, yet the judge found that as to a portion of the road “..the easterly line of the survey,” at a point on the map, shown “extended into an orchard of the plaintiff of the growth of seven years and over." 1. The finding, however, is not that the opening of the road according to the survey would interfere with any fruit trees of the plaintiff in the orchard, and the fact must appear in order to show a want of power in the commissioners. (The People v. Judges of Dutchess, 23 Wend. 360; Harrington v. The People, 6 Barb. 607.) 2. The proof is clear and uncontradicted that as to the east line of the survey adjoining the plaintiff’s orchard, the commissioners and referee actually ran the line and located the road at that point, so as not to interfere with the-orchard of the plaintiff. 3. The Supreme Court had no warrant for the assumption that through the whole length of the road, the line given, in the survey in the order, was the center line of the road, for in the order it is said that as to the part three rods wide, the line ran is the center line; but as to the part two rods wide, nothing is said on that subject, and the proof is, aliunde, that in fact it was not só intended.

      H. Cooke, for the respondent.
    I. From the nature of the case, the laying out of a road is an entire act. The order of the commissioners, when made, must be valid or invalid for the whole extent of the proposed road. It can not be good and void for alternate sections of the route..
    The order is a single adjudication’ by the commissioners, for the entire route, having reference as well to the termini as to the continuousness of the line" of road. These are vital considerations with the commissioners in determining upon the propriety of laying the road. By destroying the one or materially changing the other, the reasons on which the adjudication was founded disappear, and the whole act fails. In Holdane v. Trustees of Cold Spring, (23 Barb. 103,) it was held that a public road must be a thoroughfare, and that therefore a out de sac was not and could not be made a highway. (Pages 111, 122.) It will not do ■ to say that that part of the order which lays the road down to the old track is valid as opening a thoroughfare through, and that the commissioners virtually refused to lay the road any further, because the freeholders have not certified to the necessity of a road to this point. The road certified to be necessary, is to run from the place of beginning in a northeasterly direction to the Church land lane. The point in question does no| appear to he even upon the route certified; but even if it were, a certificate that a road from the starting point to a given terminus is necessary, is not equivalent to saying it is necessary there should be a road for only a part of the way. The order of the commissioners lays this road for a considerable distance only two rods wide. . For this reason the order is a nullity.' The commissioners have no power to open a foot path across the lands- of others. When by the order they reduce the width below three rods, they deprive it of the character of a highway. (2 R. S. 403, § 119, 5th ed.)
    II. ' The commissioners had no power without consent to lay the road through the plaintiff’s orchard of over four years’ growth. (2 R. S. 395, § 72, 5th ed.)
    III. The action of the commissioners can not be sustained under section 136 of the road act, which provides that “It shall be the duty of the commissioners of highways to order the overseers of highways to open all roads to the width of two rods at least, which they shall judge to have been used as public highways for twenty years.” (1.) The- commissioners took no proceedings to adjudge whether or not the road had been used for" twenty years. (2.) Opening an old road, adjudging it to have been used for twenty years, &c. is a judicial act requiring notice to be given to the parties interested. This is a common law requirement, necessary to confer jurisdiction. (Commissioners of Highways v. Claw, 15 John. 537.) (3.) They made no order appropriate to that proceeding; neither does the order profess to have been made under that section. (4.) They made no order appropriate to that proceeding; neither does the order profess to have been made under that section. (5.) The order does not set forth any faqts authorizing the commissioners to act under that section. It is not even stated that the road had been used by . the public for twenty years.' The record of a special and limited jurisdiction must set forth all the facts necessary to confer the power it exercises. (27 Barb. 99, 100.) . (6.) The whole proceeding is professedly, as well as in "fact, based upon an application under other sections of the statute to lay out a new road.
    IY. Ho adjudication by the commissioners, or by the referees, on an appeal, can make it' lawful to open a road through the plaintiff’s orchard without his consent. The statute declares that no road, public or private, shall be laid out through any orchard, &c. without the consent of the owner. (§ 72.) ' The proceedings on appeal can not conclude the' party against taking this objection. Consent of the owner is absolutely necessary to authorize the commissioners to lay the road. An appeal from an order, as unjust or unauthorized, can not be construed into a consent. Hor are the referees appointed on the appeal, any more than the commissioners, invested with power to determine finally and conclusively upon the question, whether or not there is an orchard of four years’ growth. Where there is such orchard, neither the commissioners or the referees have any power without the consent of the owner. They can not gain jurisdiction by deciding that they have it, and thus conclude a party. (Ex parte Clapper, 3 Hill, 458; Harrington v. The People
      6 Barb. 611; The People v. Eggleston, 13 Howard, 127; The People v. Commissioners of Seward, 27 Barb. 98.)
    V. The judge was undoubtedly correct in holding that the widening of an old road into an orchard of four years’ growth would come within the prohibition of this statute. Tet, as no proceeding of the kind appears in this case, and as the other was void, because it laid out a new road less than three rods wide and through an orchard, any mistake which the judge might make in this abstract proposition of his could not affect the decision of the case. The judgment was according to law, and should be affirmed.
   Johnson, J.

The road in question was undoubtedly laid out according to the requirements of the statute in all respects, up to the point of its intersection with the old road. The error complained of, and which, it is alleged, violates the entire order, is in that part of the order which affects this old road, from the point of the intersection aforesaid, to the center of the road known as the churchland lane, which was one of the termini of the road mentioned in the application to the commissioners, and in the subsequent proceedings. This old road, from the point where it was intersected by the survey to the other road known as the churchland lane, was clearly a public highway. The justice who tried the cause, finds as matter of fact, that it had been used as a public highway for twenty years. The statute provides that “all roads not recorded which have been, or shall-have been, used-as public highways for twenty years or • more, shall be deemed public highways, but may be altered in conformity with the provisions of this title.” . (1 R. S. 521, § 100.) This portion of the highway embraced in the application' would not have been created a public highway had the order and proceedings been entirely regular. It was such by law before, and all the power the commissioners had over it, was to alter it according to the provisions of the statute, or discontinue it. It is still an existing public highway, even if the proceedings of the commissioners are in all respects void.' The public have lost nothing, whether the commissioners have exceeded, their jurisdiction or not. The right of the highway commissioners to alter this old road is prescribed by § 101 of the statute, which is to open it to the width of two rods at least. By sub. 3 of § 1 of the same title, (1 R. S. 502,) the commissioners of highways have power to “cause such of the roads used as highways as shall have been laid out, but not sufficiently described, and such ■ as shall have been used for ■ twenty years but not recorded, to be ascertained, described and entered of record in the town clerk’s office.” It will he seen, therefore, that in respect to this old road, the commissioners had power to have, a descriptive survey made of it, and have such description entered of record, and also to order it opened to the width of two rods at least. This is precisely what they have done. They caused* it to be surveyed, and described, as a road two rods in width, and ordered it opened according to such survey and description. It is clear,- therefore, that the highway commissioners have done' nothing in the premises which they were not strictly authorized to do by statute, unless it he -the interference with the orchard, which will be considered in another place. Certainly there is no jurisdictional defect in any thing else they have actually done, whatever they may have intended by their proceedings. It is said in the opinion in the Supreme Court, that the record contains no allegation, and affords no evidence that the commissioners ever judged this old road to have been used for twenty years. Whether they so judged is in no respect essential to its being a 'public highway. The statute makes it a highway if in fact it has been used for twenty years, independent of any judgment of the highway commissioners. But it seems to me there is evidence on the face of the order, that the commissioners did regard this old road as a .public highway, and treat it as such. All the rest of the route is laid out in strict accordance with the statute on ' the subject of laying out a new road.’ The line is described by courses and distances, and is declared in the order, to be the center line, and the width of the road to be three rods. This line is brought “up to the portion of the old road.” The description in the order then continues: “then on said old road,” giving courses and distances, and the names of the owners of the land, “to the center of the road known as the churchland lane,” which was the terminus of the route at that end mentioned in the application. This portion of the road is declared in the order to be two rods wide, and it is not declared whether the line described is the center line or not." It appears to me very clear that the reason for this change was that they regarded this old road as 'a highway, and intended to have it opened to the width of two rods. Their proceedings are in harmony with this view and no other. Certainly it is not to be intended that they were ignorant of the requirements of the statute in laying out new roads, nor that they intended to violate them. The intendment is in their favor; and if they have done what the statute authorized them to do, the presumption will be, that they intended-to do it in accordance with the statute. But even if it should appear that they intended something contrary to the statute, and yet that the act done was in accordance with it, the unlawful or the mistaken intention would not divest the proceeding of jurisdiction. Jurisdiction does not depend upon the intention of the officer, or tribunal, undertaking to act, in a given case. The question is, does the law authorize the act?

Full and complete effect may be given to the order laying out the road, and also to the order to the defendant’s intestate as overseer of highways, to open the same with the above exception referred to, in perfect accordance with the power conferred by statute upon the commissioners, and. without any violation of such powers. Regarding the first part of the order laying out the road up to the point of intersection with the old road, as one strictly of that character, and the residue which follows the old road as a description of the old road to be recorded, and for the purpose of having it opened two rods in width, by a subsequent order to that effect to the overseer of highways, the whole is consistent and harmonious and entirely within the powers of the commissioners. This interpretation unquestionably ought to. be given to it for the protection of public officers, acting in good faith, if it can be done without any violence to the real nature and character of the proceeding. I can have no doubt, looking at the entire transaction, that this was just what was intended. Upon this view of the case the' public will have a public highway across from one public thoroughfare to another, a part of the way, a new one three rods in width; and a part of the way an old one opened to two rods in width, both in accordance with the provisions of the statute. It is not very material that in the order the commissioners have designated it as laying out a public highway the entire distance. We are to judge according to the real character and effect of the acts, and not according to the names given them.

And when it is made perfectly apparent as it is here, that the real substance and effect of these two orders, as respects all that portion which relates to the old road were, not to lay out, and cause to be opened, a new road, two rods in width, but merely to make a description, for record, of an existing highway, and cause it to be opened that width, it would be dealing with names instead of things to hold that this was the actual laying out of a new road not warranted by the statute. It is true, I think, that had this all been an entirely new route, the highway commissioners could not have laid out one part three rods in width and the other part two rods. As an entire act depending wholly for its validity upon the authorized proceedings of the commissioners, it would, I have no doubt, have been void. But this is' no such case. The old road was in law a public highway independently entirely of any act or proceeding of the commissioners; and it is not denied that up to that point, the power exercised was perfectly regular. Though done under one head, and one name, they were essentially two acts, perfectly severable, and it is clear that in such case, an error, or excess of authority in one would not invalidate the other. This being so, it is not very material to inquire whether all the acts of the commissioners in describing the old road, and ordering it opened according to such description, were entirely unauthorized, because the alleged trespass was upon the new part of the road as laid out, and not upon the old road. Strictly, perhaps, in the case of an old road, which has become a public highway, by having been used as such for twenty years or more, and which has never been described and entered of record nor opened to the'width of two rods, the order to open to such width should precede the survey and description, as' the object of the description is to place upon the record a notice of the extent of the rights of the public. But it can not be material, in view of the question of jurisdiction, because the essential part is the order to open, and this may undoubtedly be lawfully made without any previous survey. The statute confers the power upon the highway commissioners to order all such roads opened to at least that width, without any preliminary proceeding whatever. .It would, however, be more convenient, and far safer, to have a preliminary survey as in 'the present case, to the end that the order to open might be more definite and certain, and be executed without any danger of mistake oc misapprehension. The act of making the survey is not complained of, and for the purpose of a description for record of the road when opened, it can not be material when it was made, so that it shall describe the road accurately when opened.

Viewing the proceedings in regard to this portion of the highway in question as proceedings to open an existing highway merely, even if the order' interferes with the plaintiff’s orchard, they do not come within the language of the prohibition of the statute against laying out a highway through an orchard. I am inclined to the opinion, however, that in such a case, the commissioners would have no right to deprive an owner of the benefit of his fruit trees in an orchard of the growth of four years or over, by an order for the opening of an old road to the width of two rods. Strictly that is not laying out a road, but I think- the spirit and policy of the act frould protect the orchard in such a case. All that is found, however, on this subject, is “ that the easterly line of said survey at the point, as shown upon the map, extended into an orchard of said plaintiff of the growth of seven years and over.” It is not found that any of the trees of the orchard came within the survey, or that the owner would in any way be deprived of the beneficial use and enjoyment of any of his trees, by such survey or opening of the highway. This is necessary, in order to raise the question of jurisdiction as against the acts of the commissioners. Merely showing that one line extended into an orchard is not sufficient. (People v. Judges of Dutchess, 23 Wend. 360.) But if the necessary facts had been found, I do not think the entire order for' opening the road would be rendered void by it. The order would still, I think, be valid for the opening of all the other portions of the road. This, however, is not material in the case, because in any view, even if the order for opening the old road was wholly void, it could not affect the validity of the order for laying out the new road, nor the order for opening the same. My conclusion therefore is, that the commissioners of highways had the power to do all that they have undertaken to do; and that the error, if any, is matter of. form merely, and not of substance, and relates- exclusively to that portion of the route designated as the old road, which from the facts found was then a lawful highway; and does not affect the other portion of the- route which .was properly laid out. The part where the acts complained of were done, having been regularly laid out as a highway, and such acts having been duly authorized, were lawful, and no action could be maintained.

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

Denio, Ch. J.

I am of opinion that this judgment ought to be reversed. It is not denied that the road, as laid out by the commissioners and affirmed by the referees, corresponded with the one indicated by the prior proceedings. In the order of the commissioners the courses and distances are given until we come to a point described as “the portions of the old road.” From thence it proceeds thus: “Thence on said old road.” a certain course arid distance over lands of two individuals named. The remaining courses and distances are understood to correspond with the old road, and it is added in the order, “the said portions of the highway to be two rods wide.” The alleged illegality is confined to a point in the distance in which the road, as laid out, runs over the old ro$l It is found that this old road has been used as a public highway for twenty years. It was very narrow, it is true, and could not be conveniently wider at one point except on the east side; and in widening it in that direction it would encroach on the plaintiff’s orchard, which the law forbids. It would be inconvenient (not impossible) to widen it on the west side, on account of a side'hill. Now it may be that different proceedings would be required to widen the old road so as to make it two rods wide. If this be so, then that part of the order which requires that the old highway should be two rods wide is void; and the question then is, whether the whole road, as laid out, is illegal in consequence of the order adopting the old road for a part of the "distance. I do not think the law requires this result. If the old road had been used as a highway twenty years, it could be so used some time longer. Whether in consequence of the difficulty of going along at the narrower part indicated, the project of a road which was applied for should be given up or not, was a question for the discretion of the commissioners, and they elected to lay out the road notwithstanding the difficulty. It may be that the public interest would be promoted by laying out a three rod road until the old road should be reached and then continue the use of the old road to the other terminus. Of that the commissioners, not the court, were to judge. But if the order for widening the old road was valid, it does not follow that the orchard was to be intruded upon. Of course' it was possible to dig down the side hill on the other side. How difficult .it would be we do not know, but perhaps the commissioners did. But we should not declare the whole proceeding void, and make these public, officers "trespassers, on account of" some inconvenience in carrying out their determination.

I have been obliged to examine the case without the benefit of the diagram, no copy of which was furnished to me. The witnesses, however, have sufficiently indicated the local particulars necessary to be considered.

All the judges, except Weight, J. concurring, ■

Judgment reversed.


source: Caselaw Access Project

author: Selden, J. Ingraham, J.

license: Public Domain

text:
    Charles Morford and another v. John A. Davis.
    Usury is a defense which can not he made available on the trial of a cause, unless it be pleaded; and where the answer of an indorser does' not show that the contract of indorsement made by him was usurious, evidence tending to prove that fact should be rejected.
    An indorsement, as between the indorsee and the indorser, is a new and independent contract, having no connection with a usurious contract between the payee and the person discounting it, and is unaffected by it. And it is not competent for the indorser to say that his indorsement is invalid; nor can he, in any event, set up his own illegal act, in taking .usury, to defeat a recovery against him, upon the same instrument.
    A usurious agreement between the first'indorsee of a note and one who discounts the same for his benefit will constitute no defense to an action by the last indorsee, against him, upon his contract of indorsement.
    Appeal from the Supreme Court. The action was brought against Davis and John P. Westervelt, as indorsers of a promissory note made by one Haskin, on the 2d day of February, 1857, for $>2500, payable to the order of Westervelt six months after date. In the complaint it was alleged that the note was indorsed by Westervelt, the payee, to 'Davis, by Davis to Hoxon, and by Noxon to the plaintiffs. That when it became due it was duly presented' for payment to Haskin, and payment demanded; that it was not paid, and due notice of the default was given to the indorsers. That the plaintiffs were the lawful owners of the note; that each of the defendants was indebted to them in the full amount thereof, for which, with interest and costs, they demanded judgment.
    The defendant, Davis, in his answer, denied that the note was ever transferred or delivered by the maker to the payee for value, or any consideration whatever; and he alleged that the note was delivered to the payee solely for the purpose of raising money thereon for the maker’s benefit; that when the note was transferred to Davis, it was so transferred upon a usurious agreement between the payee and Davis, whereby there was agreed to be reserved and taken out of the note, for the forbearance thereby granted, a sum equal to three per" cent a month for the loan and forbearance aforesaid; and that such agreement was carried out accordingly ; wherefore he demanded that the complaint be dismissed.
    The cause was tried before a referee, and on the trial the defendant, Davis, proved the origin of the note, and the transfer thereof from Westervelt to him, to have .been as stated in the answer. He also gave evidence (some of which was objected to by the plaintiffs-as inadmissible under the pleadings) tending to show that the discount of the note by' Hoxon, and by the plaintiffs, was at a usurious rate of interest.
    The referee, by his report, found the usurious agreement between Westervelt and Davis, as stated-in the answer of' Davis; that the note was void as against Westervelt, and the complaint was therefore dismissed as against him. He also found that such usurious agreement, between Westervelt and Davis, constituted no defense against the contract which the defendant, Davis, entered into upon his transfer and indorsement of the note to Hoxon. (To this finding the defendant, Davis, excepted.) The referee also found that the defense of usury in the transfer and indorsement by the defendant, Davis, to Hoxon, was not admissible in evidence under the answer of Davis. (To this finding the defendant, Davis, excepted.) It was also found that the plaintiffs were entitled to judgment against the defendant, Davis, for. the amount of the note and interest; to which finding the defendant also excepted. Judgment was entered in accordance with the report, which on appeal by the defendant, Davis, to the general term of the Supreme Court was affirmed, and he thereupon brought the present appeal. The only question presented on the merits was, whether Davis could set up usury in the inception of the note as a bar to his liability; he himself being the usurer.

      John K. Porter, for the appellant.

      Edward Fitch, for the respondents.
    I. The answer of the defendant, Davis, does not put in issue either the bona fides of the holding of the plaintiffs or of Hoxon, nor the fact of a valuable consideration having been paid upon the transfer to Moxon and from Hóxon to the plaintiffs, hut relies solely upon the effect of the usury exacted by Davis himself in the original discounting of the note for Westervelt. The answer is therefore bad upon two grounds; first, the contract of indorsement on which Davis is sued is a new contract in its relation to the contract expressed by the note, and therefore can not be affected by usury in the note; and second, it is not competent for the usurer to set up the statute as a means of protecting himself in the enjoyment of the fruits of his usury. 1. The contract on which- Davis is sued, as expressed by the indorsement is, that the note was a valid note and would be paid at maturity, and that if not paid by the maker he would pay it. This contract is based upon a consideration moving from Hoxon to Davis, which, under the answer of Davis, can not be inquired into, but must be assumed to be "adequate to support the contract in its fullest scope. (Delaware Bank v. Jarvis, 20 N. Y. 226.) 2. Usury in the contract expressed by the note can not affect the subsequent engagement of the indorser, (a.) This point was distinctly ruled in a parallel case, in McKnight v. Wheeler, (6 Hill, 492.) (h.) In Churchill v. Hunt, (3 Denio, 321,) it was held in an action on a bond conditioned for the payment of a note of the obligee held by a' third person, that it was not competent for the obligee to set up usury in the giving of the note as a defense. 3. The whole object of the statutes of usury would be defeated if the usurer could set up the statute; it would in that case become the instrument of giving efficacy to the very act which it seeks to render void.
    II. The plaintiffs were entitled to judgment agaiijst Davis oh his answer. Consequently the report of the referee is correct.
    III. The defendant, Davis, did not move to amend his answer; he is not therefore entitled to the benefit of the fifth exception to the referee’s decision.
    IY. The judgment below is free from .error, and should be affirmed with costs.
   Selden, J.

Usury is a defense which can not be made available on the trial of a cause, unless it be pleaded; and the answer of Davis not showing that the contract of transfer and indorsement of the note by him to Hbxon was usurious, the evidence tending to prove that fact was properly rejected. (Gould v. Horner, 12 Barb. 601; Watson v. Bailey, 2 Duer, 509.)

The contract of indorsement, made by Davis, had no connection whatever with the usurious contract between Westervelt and Davis, and is not affected by it. The indorsement constituted a new contract between Davis and Hoxon, upon sufficient consideration,- and was valid and binding upon the defendant, although the note was void. (McKnight v. Wheeler, 6 Hill, 492; Churchill v. Hunt, 3 Denio, 321.) Indeed, the fact of the transfer of the note by the defendant to Noxon, as a valid instrument, is of itself sufficient to estop him from alleging, as against Hoxon, or any one claiming under him, that the note was void. (Delaware Bank v. Jarvis, 20 N. Y. 226.)

The judgment of the Supreme Court should be affirmed.

Ingraham, J.

The defense in this case to the note upon which the action was brought is, that the note is void for usury. The usury set up in the answer is the usury between Davis and the payee, who sold it for the benefit of the maker. The note was usurious as between Davis and the parties to the note, and was so found by the referee. The defendant Davis seeks to avail himself of -his own act in taking usury, as a defense for'himself as indorser. The decision in Delaware Bank v. Jarvis, (20 N. Y. Rep. 226,) is in point in this case, so far as to hold that the defendant can not set up this defense against the party to whom he passed the note. That case decides that the transferor of a chose in action impliedly warrants its legal soundness and validity; and that if there are any exceptions, they do not exist where the invalidity of the security sold arises out of the vendor’s own dealing with or -relation to it. The judge says: “On the sale of the note the defendant became chargeable on an implied undertaking that he held it by a right and title which would enable the purchaser to enforce it against the parties to it.”

Such an indorsement, as between the plaintiffs and Davis, was a new and independent contract, and it was not competent for him to say that his indorsement is invalid; (McKnight v. Wheeler, 6 Hill, 492;) nor could he in any event set up his own illegal act in taking usury to defeat a recovery against him upon the same instrument. (La Large v. Herter et al. 5 Held. 241.)

It may be that under a proper answer the defendant might have set up usury as between himself and the plaintiffs, in the transaction upon which he transferred the note to them. He has, however, stated ho such defense in the answer, and he can not now rely on that to defeat the plaintiffs’ recovery. The judgment should be affirmed.

All the Judges concurring,

, Judgment affirmed.


author: Denio, Ch. J. Hogeboom, J.

text:
    George C. Hathorne v. John T. Hodges.
    -In an action to recover the possession of property, on the ground that it was obtained from the plaintiff, by the defendant’s vendor, by a purchase thereof on credit, upon false and fraudulent representations, and with the design to dispose of it for cash and then abscond, leaving the purchase price unpaid, evidence tending to'show other purchases of property made by the defendant’s vendor from other parties, under similar circumstances, and that he left the price unpaid when he ran away, is competent.
    Where property is obtained from the owner by means of a fraudulent ply-chase thereof on credit, the purchaser giving his notes for the purchase money, payable at a future day; and before the maturity of the notes the purchaser absconds, after having transferrred the property to a third person, the original vendor is not bound to proceed in disaffirmance of the contract, by seizing or replevying the goods immediately after the/ purchaser has absconded ¡.but is justified in. waiting until the maturity of the notes; and such delay will not he deemed a ratification of the sale.
    Where a purchaser has absconded, leaving the purchase money unpaid, the vendor is not hound to offer to return to him the notes given for the purchase money, before bringing an action to disaffirm the sale. It is sufficient if he produce the notes on the trial.

      Appeal from the Supreme Court. The action was brought to recover the possession of two bay horses claimed to belong to the plaintiff, and to have been wrongfully detained .by the defendant. The plaintiff had sold them to one Higgins and taken his notes therefor. Higgins transferred the horses to the defendant, from whom the plaintiff demanded them before suit brought. This action was in disaffirmance of the contract of sale and founded on the idea of a fraudulent purchase by Higgins with intent not to pay fop them—of a connivance between Higgins and the defendant to defraud the plaintiff of the price, or prevent his obtaining the same— of a purchase by the defendant from Higgins with knowledge that the purchase price from Higgins to the plaintiff was not paid, and also with reason to suspect a fraudulent attempt by Higgins to deprive the plaintiff of compensation for the price. There was evidence—at least some evidence— on- all these points; and the case was submitted to the jury, who rendered a verdict for the plaintiff.

      I. T. Williams, for the appellant.

      A. Mathews, for the respondent.
   Denio, Ch. J.

This must be considered as an action against Hodges alone; for, although Higgins is mentioned as a defendant, in the complaint, he did not plead, and it does not appear that he was served with the summons. The plaintiff’s case was that Higgins, in form, purchased the horses of him, on the 11th of June, 1855, but that on account of fraud on Higgins’ part, the sale was void, and that the title did not pass, and that the horses were subsequently found in the defendant’s possession; but that he did not acquire the possession under such circumstances as would enable him to claim a, better title than Higgins had. The jury, by their general verdict against the defendant, must be understood as having pronounced in favor of the plaintiff. The only questions which can now be made, arise upon the exceptions taken to rulings respecting the admissibility of evidence, and to exceptions to the charge of the judge.

The sale by Higgins to the defendant was on the 17th of July, 1855. It would appear, though the statement to that effect is not explicit, that the plaintiff proposed to give in evidence statements of Higgins, made after his sale to the defendant, in regard to the sale; for the case states that the defendant objected to such declarations and that the court overruled* such objections, and the defendant’s counsel excepted. The witness then under examination, Johnson, testified that Higgins said that Hodges was “ one of -the damnedest little rascals he ever saw.” This was not testimony relating to the sale of the horses from Higgins to the defendant, but it related solely, so far as it appears, to the personal demerits of the defendant. It does not appear to have been responsive to any question put to the witness who gave the testimony, and it was not within the scope of the ruling which was excepted to. That ruling was apparently incorrect; for I can not conceive that the declarations of Higgins respecting the sale to the defendant, made after that sale had taken place, could have been competent against the defendant; but not having been admitted by the ruling or received in consequence of it, it was not an error of the judge for which the verdict ought to be interfered with. The defendant, if he had thought proper, might have called upon the judge to withdraw the answer from the consideration of the jury, and if he had refused, an exception to the ruling might have been sustained. The method taken by the plaintiff to establish the fraud' of Higgins in purchasing the horses, will appear by the following statement: On the 1st of May, 1855, Higgins purchased of .the plaintiff a lease of certain premises used as a coal yard, a quantity of fossil coal, and utensils which the plaintiff had used in the business of a vendor of coal. The object of Higgins was dedared by him' to be to conduct, at that place, the business of purchasing and selling coal upon an extensive scale. The horses in question were purchased on credit by Higgins, of the plaintiff, on the 11th of June following, to be used' in the same business, and Higgins absconded _ on the 8th of August, following, having in the intermediate time (on the 17th of July) sold the coal yard, the coal purchased of the plaintiff, and these horses, and a large quantity of coal and Other property, purchased by him on credit of other persons, the sale in the aggregate amounting to some $15,000. The plaintiff’s theory was, that the design of Higgins throughout was, not the bona fide establishment of a regular business as a coal dealer, but on the pretense of such a- business enterprise, to get into his hands a large amount of coal and other property under color of purchases on credit, and then to dispose of it for cash and abscond. The facts proved without objection tended to establish this theory, and the evidence which was admitted against the defendant’s objection, was the subject of two other of the exceptions. That evidence tended to show other purchases of property by Higgins, of other parties under similar circumstances, and- that he left the price unpaid when he ran away. I think the evidence was entirely-competent.

The remaining exceptions were those taken to portions of the charge. The plaintiff took two notes for the purchase price of the horses, payable at a bank, and which would mature on the 14th and 17th of September, 1855. ■ Higgins absconded as has been mentioned, on the 8th day of the preceding August. Instead of seizing or replevying the horses immediately after Higgins went away, and after the fraud was thus in part disclosed, the plaintiff placed the notes in the hands of a bank to await their maturity, but they were not paid. This-is called, in the case, protesting them, but there was no indorser to be charged, the notes being to the order of the plaintiff. The judge charged that this retaining of the notes by the plaintiff and causing them to be protested, for payment, and what was further done, which is called protesting them and giving notice of non-payment, but which could not have been any thing more than giving notice to the plaintiff that the notes had not been taken up, was not in itself sufficient evidence of an affirmance of the 'sale to Higgins. It should be observed that the plaintiff had been given to understand by the defendant that there was a probability of his being paid out of the proceeds of th.e sale made by Higgins to the defendant. He was not a party to the agreement which had been made between Higgins and the defendant, and might well enough have supposed that the large amount of property which was thus disposed of might, in some way, have been used for the payment of his debts incurred in its purchase, including the debt of the plaintiff represented by the notes. I am of opinion that the evidence of fraud in the purchase of the horses by Higgins had not culminated, until it was shown by the dishonor of the notes, that there was no intention of' applying the property which went into the defendants hands, or its proceeds, to the payment of the debt which arose out of its purchase. If this be so, the charge of the judge, that the treatment by the plaintiff of the notes did not show a ratification of the sale, was correct. The contract to return the notes to Higgins appears to have been impracticable, for he had absconded, so that they could not be given to him. It was sufficient therefore to produce them on the trial.

I am in favor of affirming the judgment appealed from.

Hogeboom, J.

As the charge of the court is not given, except detached portions thereof, we must conclude that the questions of fact were submitted to the jury under proper instructions as to the law, (otherwise than as excepted to.) Ho questions remain for our determination except these exceptions to the admission of evidence, and three additional ones to the charge of the court.

• In reference to the exceptions to evidence, they were founded on objections made to testimony of the declarations of Higgins, and of his acts in nearly contemporaneous purchases of goods from others beside the .plaintiff, tending to show fraud. As Higgins appears to have been a party to the suit, so far as we can judge from the case, at the time of the commencement of the action and of the trial, though his name has got out of it in some way now, it is difficult to see why his own declarations were not admissible testimony against himself and therefore admissible in the cause. • The only one which can be claimed to have borne directly against the defendant was that made to .the witness Johnson, who was asked to state what Higgins said to him in regard to the sale of the horses to Hodges. I incline to think sufficient evidence of a fraudulent combination between the defendants had been given to justify the admission of this evidence as against Hodges on that ground; but whether so or not, the answer of the witness was not responsive to the question, and should have been objected to and moved to be stricken out on that ground, which was not done. The answer was, “Higgins said that Hodges was one of the damnedest little rascals he ever saw.” How although this was not one of the most desirable certificates to the integrity of the defendant, yet as it stated no fact in support of this opinion—and was moreover the opinion of a party whose own honesty was impugned—we can scarcely suppose that it tended materially to prejudice the defendant, or entitled the party to a new trial on that ground.

The other objections to the testimony are to evidence of acts or alleged acts of fraudulent purchase.by Higgins of other persons, nearly contemporaneous with that from the plaintiff, and these are held to be admissible for the purpose of showing a fraudulent intent in this particular instance.

The exceptions to the charge are three in number: 1st. To that portion of the charge which instructed the jury that the retention of the notes by Higgins till their maturity, presentation for payment, protest and notice of dishonor, was not of itself sufficient evidence of an affirmance of the sale by the plaintiff, but that he was still at liberty to disaffirm the sale and bring this action. This was the view of the judge on the question of fact, and if the defendant was dissatisfied with it I think he should have asked the submission of the question of fact to the jury. The only question of law arising on this part of the charge, upon a fair construction of it, was, I think, that the retaining of the notes so long and taking proceedings to protest them was not, necessarily, an affirmance of the contract of salej which it plainly was not. If the soundness of the charge depended upon the question whether the judge was correct in his conclusion of fact, I should be disposed to sustain it upon the ground that at the time these acts were done the conduct of Higgins, although suspicious, was still not conclusively fraudulent, and that it was prudent to await this developement of events before the plaintiff took ulterior proceedings to disaffirm the sale. Further, Higgins had absconded and it was impossible at that time to make surrender of this paper, there being no one to surrender it to. I do not think a new trial should be granted on this ground.-

The other exceptions are nearly similar in effect, and may be disposed of upon similar considerations. The judge charged that it was not necessary that the plaintiff should have surrendered the notes to be canceled in order to maintain the action. As Higgins was absent and there was nobody to receive the surrender, and as the courts have frequently held that they may even be surrendered on the trial, when a reasonable excuse is given for not making an earlier surrender, the judge appears to have charged correctly enough in this particular. A .contrary charge would have- been fatal to the plaintiff, and would have left nothing for the jury to pass upon..

Again, the judge charged the jury (and this is the subject of the remaining exception) that the possession of the notes on the trial hy the plaintiff was not sufficient evidence of an affirmance of the sale of the horses, or inconsistent with his right to recover in this action. This question has heen considered in disposing of the two previous exceptions. It would have heen better perhaps if the judge had stated, as was his apparent meaning, that the possession of the notes was not conclusive evidence of an affirmance of the sale of the horses,, or necessarily inconsistent with his right to, maintain this action. This was the principle of law involved, and so far the judge was right. If there be any thing else in the exception I think it was matter of fact, as to which the defendant did not ask to go to the jury and therefore is remediless. The judgment should he affirmed.

Ingraham and Mullin, JJ. voted for a reversal. Davies, J. took no part in the decision. All the other judges being for affirmance,

Judgment affirmed.


author: Selden, J. Mullin, J.

text:
    Jonathan Robinson v. Seth Raynor and others.
    In most, if not in all, cases of appeals from the decisions of surrogates, tha whole case is to-be examined by the appellate court, as well upon the facts as upon the law, so far as questions are presented by the appeal; and this . rule applies as well to the .Court of Appeals as to the Supreme Court.
    Where services are rendered by one person to another in pursuance of a mutual understanding between the parties that compensation, for them shall ne made by will, and the party receiving the services dies without making the expected compensation, the party rendering the services is entitled to compensation out of the estate of the deceased," as a creditor, for the value of the services.
    And in case there is an understanding that compensation shall be made, it is not material whether the failure to make it arose from accident or design.
    ■ Where D. R., twenty-five years or more prior to his death, abandoned his wife and his homestead, and from that time until his death did not reside with, or provide for her; but during the whole of that period she was taken care of and attended by J. R. her son, and his family, who resided in a house near by; they providing her with fire-wood, vegetables, &e., and laboring in her house and garden; and during the same period J. R. transacted all D. R.’s business for him; the evidence showing clearly that there was an understanding between J. R. and his father that the former'should be compensated for such care of his mother and his attention to his father’s business by a devise of the homestead; that D. R. had made three if not four wills, in all of which the homestead farm was devised to J. R., and that he had repeatedly, and until near the time of his death, promised and expressed his intention to make such devise: Held, that upon D. R.’s dying without having devised the farm to J. R., the latter could recover a compensation for his services, to be paid out of the estate of the deceased.
    Appeal from the judgment of the general term of the 2d district reversing a decree of the surrogate of the county of Suffolk.
    David Robinson, who resided in Brookhaven, in said county of .Suffolk, was the owner of a farm and considerable personal estate. Some twenty-five years before his death he deserted his wife, leaving her on the farm on which they had resided for several years previously, he himself going to reside about three miles distant. The children of said David had ceased to live at home before he left, and there was no one to look after the farm or to take care of Mrs. Robinson. Jonathan Robinson, a son of said David, lived near his mother, and from the time his father left," he, Jonathan, and his family were accustomed to draw and prepare wood for her, stay with her at night, plant and take care of her garden, make her butter, do her washing, and rendered such other services as were necessary, and which she was unable.to do for herself. Jonathan, being able to read and write, and his father 'being able only to write his name, he, (Jonathan) was called on to and he did occasionally transact business for his father. Rothing was ever paid for these services by said David.
    It did not appear that the services rendered by Jonathan and his family for Mrs. Robinson were done or rendered a,t the request of said David. David died intestate, and his son Jonathan took out letters of administration on his estate, and after being so appointed administrator he presented a petition to the surrogate of Suffolk county, stating that his father in his life time was indebted to him for services rendered, and for which he was to Re paid by a devise to him of his father’s farm, and praying a decree that he be allowed therefor. The necessary parties were brought in, and a hearing was had before the surrogate, and on such hearing it was proved that on several occasions the said David said to Jonathan, and his children who rendered services to his wife, that he would pay them by conveying the farm and a piece of meadow land to said Jonathan.
    J onathan himself testified that his father told him if he would stay there he should have the farm; at other times he told him he had made his will and left him the farm. - It was proved by others that David on several occasions declared his intention to give J onathan his farm, and stated that he had made his will and given it to him.
    On the other side it was proved that" before the death of said David, J onathan had said his father did not owe him any thing; that the father had told him, Jonathan, he would not give him the farm, that he (J.) had cut off his father’s land large quantities of cord wood, and that the services rendered were worth very little.
    The surrogate found that services were rendered under a mutual understanding that Jonathan should receive compensation for his services by a devise to him of the farm, and that the services so rendered were worth the sum of $1250, which he directed the said Jonathan as, administrator of his father’s estate, to deduct from the assets in his hand. The next of kin appealed from this decree to the general term of the Supreme Court, by which the decree of the surrogate was reversed. (See 36 Barb. 182, S. C.)

      J. H. Tuthill, for the appellant.

      W. Wickham, for the respondent.
   Selden, J.

The validity of the claim of the appellant, which was allowed by the surrogate, depends upon the question whether the appellant rendered services for his father in his life time, in pursuance of a mutual understanding between him and his father, that he was to be compensated for such services by á devise of the homestead farm, ór other provision by will.

Where services are rendered in pursuance of a mutual understanding between parties, that compensation for them shall be made by will, and the party receiving the services dies without making the expected compensation, the party rendering the services is entitled to compensation out of the estate of the deceased, as a creditor, for the value of the services. An express agreement need not be shown, although if the services are gratuitously rendered, or rendered with the expectation merely, by the person rendering them, that they will be compensated by will, without any mutual understanding, express or implied, between the parties to that effect, they will not constitute a valid claim. ' It is not material whether the failure to make compensation, (where there was an understanding that it should be made,) arose from accident-or design. These positions are too well settled to admit of dispute. (Martin v. Wright's administrators, 13 Wend. 460; Quackenbush v. Elite, 5 Barb. 469; McRae v. McRae, 3 Bradf. 199.)

In the present case, there is no dispute that services to some extent were rendered by the claimant to the intestate, and that nb compensation for them was made by will. The only questions to be decided, therefore, are, whether there was an agreement or understanding between the claimant and the intestate, that compensation of any kind should be made for those, services; whether compensation was in fact made, otherwise than by will; and the value of the services.

These are questions of fact only, which in ordinary cases' would not be subject to review in this court; but in most, if not in all cases of appeals from the decisions of surrogates, the whole case is to be examined by the appellate court, as well upon the facts as upon the law, so far as questions are presented by the appeal, and this rule applies as well to the court of appeals, as to the Supreme Court. (Schench v. Dart, 22 N. Y. Rep. 420; Caujolle v. Ferrie, 23 id. 90; Moore v. Moore, 21 How. Pr. R. 211.)

A careful examination of the evidence, has convinced me that the surrogate arrived at correct conclusions upon these questions, and that his decree should not have been reversed. In giving the reasons for this opinion, I shall not attempt to review the testimony in detail, but will limit myself to a statement of its general features, with brief references to the' most essential points.

The intestate, the father of the appellant, appears to have been the owner of somewhat extensive tracts of land, of a poor quality, generally, in Suffolk county, upon Long Island. What was called the homestead, where he resided during the earlier portion of his life, was composed of some four or five hundred acres of land covered with wood., excepting about fifty or sixty acres, which, in its then existing condition, was capable of cultivation—-the value of such cultivated part being variously estimated at from $>2 to $ 10 per acre—and its products what might be expected from lands of such value. The intestate and his wife had ten children, one son (the present appellant,) and nine daughters. The daughters were all married, and had removed to places, at. some distance from their father’s residence, from eighteen to twenty years or more before the death of their parents. The son was also married many years ago, and having bought a piece of land near the homestead, built a house upon it, and has resided there, so far as the case shows, to the present time. The intestate, twenty-five years or more prior to his death, abandoned his wife and his homestead, and from that time until his death appears not to have resided with his wife, or to have paid much attention to her, although he was occasionally at the house, and contributed to some slight extent to her support. The sons of the appellant in succession, as they became of age to warrant their doing so, slept at their grandmother’s, (taking their meals at their father’s,) carted her wood, cut and carried it into the house, made her fires, ploughed, planted and hoed her garden, and waited upon her generally, as her necessities required. The daughters of the appellant washed and ironed and baked for her, and attended to her work whenever she was not able to do it herself. These • attentions were continued during the whole time after the separation of the intestate and his wife until her death, at an advanced age, some two or three years, as stated by the surrogate, prior to the trial before him. I think the learned justice who delivered the opinion in the Supreme Court, has not given due weight to these general facts. The old lady’s habits of simplicity and economy in living were extreme, and it is not remarkable that the evidence is meagre as to the amount and value of property furnished for her immediate use; but if she had consumed nothing, it is evident that the' care and attention bestowed upon her by the appellant were such as, except toward kindred, no one would undertake to bestow without large reward. In addition to the care of his mother, the appellant devoted .considerable time to the business of his father.

The evidence of an understanding between the appellant and his father, that the former was to be compensated for this care of his mother and his attention to his father’s business, by a devise of the homestead, is very strong. David Eohinson, one of the appellant’s sons, says, “I know about my father’s doing business for my grandfather; he was often called upon and attended to it in preference to every thing else; whenever the old gentleman called he went; my grandfather often talked to me, and told me to take care of things for it would soon all be father’s. I intend to give it to your father, and it will eventually be your’s and your brother’s. I have heard him say, father, when he had the farm, would have enough to pay him for his work he had done for him; services he had performed.” Another son says, “I had conversation with my grandfather about working there a great many times; he never paid me; he said my father would have the place for the labor he was performing for them; told me that a great many times; told me a great many times that he had willed it to my father; told me that he would certainly have the place.” Another son says, “I have talked with my grandfather about this work and the pay for it. He told me about the last time I saw him before he died, he should give father the home place.” One of the daughters says, “I have heard grandfather say, time and again, he would pay us for all what we had done; that he would give father the home place from the south end to the Teconic river ; and the meadow.” Another daughter says, “He said we should all be paid for what we had done; he should give us the home place and the meadow.”

The appellant testifies that-his father “cropped them [lots which he had manured] until he had cropped them all out, and then gave it [the farm] up to me, and told me if I would manure it I might have the farm, and he always took part of the first crop; he said if I would stay there I should have the farm; said the girls should not have a foot of it; and when they persuaded him to destroy his last will, he repeated it, and said he would give it to me. I told him he was an old man and ought to make his will. He said he would ; told me to go to Joel’s and get the will written. I said no, he-must'go, and could have one of my hoys. I did all iny father’s business for thirty years. He never gave me $20; never gave me hut one dollar.”

Nathan Raynor testified that he had seen J onathan and his children at the old lady’s cutting wood; that he hired $150 of the old man; that Jonathan wrote the note and attended to the business; that the old man was not competent to write himself, further than to write his name. Silas Carter stated that J onathan used to do considerable business for his father; knew him to travel about with the old man, had known him write notes, &c.

Joel Robinson (whether a relative of the parties or not does not appear) testified as follows: “I can’t say how many wills I have written for the old man, three or four. Wrote the' first one ten or fifteen years ago. In all those wills he gave the homestead farm do Jonathan; I.remember seeing a will in his possession in your [the contestant’s counsel’s] handwriting that gave the homestead farm to Jonathan. I wrote the last will not over three ór four years before his death. I had his last will in keeping; he came for it not a great while before he died; 'four or five or six months, can’t say how long; he destroyed it in my presence, tore his name off. He said it was very likely he should call again, and want another one wrote; if things went to suit him he should call again. I have heard him always say he meant Jonathan should have the homestead; this was when he came to have writing done; he said he had always willed it to him, and he meant he should have it.”

There is some evidence, mainly of declarations of the intestato, calculated to produce conclusions different from those to which I have arrived, both as to the amount of services rendered by the appellant, and as to the manner in which he was to be rewarded for' them; but there is nothing contradicting in any material respect that to which reference has been made, or which can greatly weaken its force, In regard to what was done by the appellant and his children for the old lady, the testimony is that of the daughters and granddaughters of the intestate, who state what they did, and what they saw during their visits to their mother and grandmother. Some of them visited her quite frequently; during part of the time every week or oftener, and during other parts less often; others -once in two or three months, and others not oftener than once a year. During these visits, the old lady herself appeared to do all that was done about the premises, which are represented as uncleanly and in bad condition, as .though very little was done by any one. They however speak of the drawing and cutting of wood by the appellant’s sons, and of their lodging at the house. Phebe Eaynor, one of the daughters of the intestate, says that she was the last one that went away from home, and that she left in 1839. -This, as nearly as can be ascertained from the case, (which is exceedingly deficient as to dates,) was at least eighteen years prior to the death of her mother. It is fairly to be inferred, from the testimony of these witnesses, that the old lady lived very poorly; that but slight provision was made for her wants, and no very great attention paid to her comfort by any one. This may have been owing to a neglect of filial duty on the part of the appellant, but is as likely to have arisen, to some extent at least, from a strong desire on the part of the mother, not unusual in such cases, to live as nearly as possible without dependence upon her children.

All the testimony offered on behalf of the contestants tends, not to overthrow, but to confirm the position that for twenty years or more the responsibility of taking care of the old lady rested upon the appellant and his family alone." The daily attention which her circumstances demanded, during nearly all that time, was rendered by the defendant and his children. Whatever was done by others was casual, and accidental; and although the attention thus bestowed by the defendant and his family may have appeared trifling to casual visitors, it is.impossible not to see that the necessity of rendering them imposed a constant and burdensome responsibility upon the appellant, without reference to the amount of services rendered or of supplies furnished.

The evidence offered, to show that the appellant was paid for his care of his mother, by the use of the farm and by wood taken from it before his father’s death, consisted mainly of declarations of the intestate, made about fifteen years before his death during the progress of a church trial, the result of a difficulty between the appellant and one Gordon, who had obtained from the intestate the title to a piece of land which the appellant had enriched with ashes. The intestate on that occasion said to the appellant, that he had agreed to let him occupy the place if he would take care of his mother and pay the taxes, and that he had not done it; that when a barrel of flour was wanted he (the intestate) had got it; and when fish was wanting he had got it; and that he had sold a piece of land as he had a right to do. The appellant made no reply. The intestate was inquired of by the minister, if he had not promised his son that he would give him the place, to which inquiry he made no answer. The intestate also charged the appellant with cutting large quantities of wood. One witness testifies that “the old man said, ‘you have cut a thousand cords of wood off the place I presume;’ I am nqt sure, it was hundreds at any rate.” Another testifies that “the old man told Jonathan he had cut three thousand cords, and he should not cut any more; Jonathan said nothing.but turned away; he usually did so; never spoke a saucy word to the old man.” This witness gives the only estimate which the case presents • of the quantity of wood actually cut. He says, “perhaps three hundred to five hundred cords were cut under Jonathan.” It was shown to have been worth one dollar per cord. All the witnesses who speak on the subject agree, that the annual value- of the use of the farm, aside from the cutting of wood, was from .forty to fifty dollars. One of the appellant’s sons states, that the intestate often had a part of the crops; that he at first cultivated all the best part himself, and gave the farm up to the appellant “by piece-meals.” That his father bought three thousand bushels of ashes and put on the farm, and all the farming he ever did there did not pay expenses. The appellant testifies, that he paid his father for more wood than he ever cut; that he put #1000 worth of ashes on the farm, and never got the interest of the money it cost him.

Whatever might be the force of the evidence produced on the part of the contestants, if there were no circumstances in the case to overcome it¿ the conclusive answer to it is, that after all the facts occurred to which that testimony relates, the intestate made three if not four wills, in all of which the homestead farm was devised to the appellant, and the intestate repeatedly promised, and expressed his intention to make such devise, in consideration of what the appellant and his children had done and were doing for him; these declarations and promises being continued almost to the time of his decease. The declarations of the appellant which were proved do not aid the respondents. When asked to state whether he had any claim against his father, he replied that he had not; and when asked to execute a release he refused, unless his father gave him a deed. All this accords with his present position. In connection with this evidence some circumstances were disclosed, calculated to induce a belief that ° influences not altogether worthy of approval were brought to bear upon the mind of the intestate, to prevent the carrying out of his just intentions toward the appellant. Joseph Dayton, a witness called by the respondents, says: “Less than a year before the old man died I saw Jonathan, and he told me about the old man’s destroying his will; I told him I heard he had a claim against the old man for $3000, and when the old man died he intended to fetch it in. He said it was as big a lie as ever was told; they, are making all this up to hinder the old man from giving me any of his property.” One of the appellant’s daughters says: “Grandfather said some of them had been to him and told him father had forged a deed for the place, he said that made him mad and he destroyed the will. Afterwards I heard him say he would make it all right.” There may have been no sinister design in the origin of these stories, but the suspicions of the appellant upon that subject are certainly not unreasonable.

It is stated in the opinion of the Supreme Court, that “the services were those acts of kindness and affectionate regard which most sons would have been happy to have rendered, to an aged and lone mother.” This is very true, but it is equally true, that for such services aged parents who have the ability, are equally happy to make compensation. When such services are rendered for many years in succession by one only, of several children, the natural feelings of parents usually coincide with the dictates of justice, in bestowing upon such child some special reward on that account. - Although the services in this case were not rendered to the intestate directly, yet the evidence shows that they were rendered at his request, to one for whom he was bound to provide, and with a perfect understanding between him and the appellant, that compensation was to be made for them by the devise to the latter of the homestead farm. The evidence also leaves very little room to doubt, that until a very late period of his life the intestate designed to carry out that understanding, and would have done so had no artifice been resorted to, to prevent it. It is not material, however, in what manner the failure to carry out the understanding was produced; the fact of the failure entitled the appellant to compensation out of the estate for his services, and the sum allowed by the surrogate on that account was not unreasonable.

The judgment of the Supreme Court should be reversed, and the decree of the surrogate affirmed with costs.

Hogeboom, Ingbaham, .Weight, Johnson and Davies, JJ. concurred.

Mullin, J.

dissenting. The surrogate has found as matter of fact, that Jonathan Robinson performed services for his father and mother for the whole périod of twenty-five or thirty years, for which it was mutually understood between them that he (Jonathan) should receive compensation by a devise of the homestead farm.

Ho express agreement is proved or pretended, on the part of Jonathan, to perform services for his father and mother, or on the part of the father that he would pay therefor at any time or in any manner. The evidence relied on to establish the liability is a recognition of it by the father, and a promise given* that he would convey the farm in satisfaction.

The law implies a promise to pay when the services are rendered at the request of the defendant, and when there is no request proved, but they are rendered with the knowledge and tacit assent of the defendant. (James v. Bixby, 11 Hass. Rep. 34; Farmington Academy v. Allen, 14 id. 174.) But however valuable the services rendered may be, yet if they are rendered without the privity or consent of the person for whom they are rendered, the law affords the party rendering the service no redress. (Bartholomew v. Jackson, 20 John. 28.)

These rules apply in actions between persons not members of the same family. As between them, different rules are applied, (Williams v. Hutchinson, 3 Comst. 312;) or rather a higher degree of evidence is required to establish the' liability in the one case than in the other. (Moon v. Moon, 21 How. Pr. R. 211.)

If a child who lives with a parent after it becomes 21 years of age, and renders service and is treated as a member of the family, nou agreement to pay being proved nor account kept of board or clothing, the law will not presume an agreement to pay, but will presume the services to have been rendered gratuitously, or at least to be fully compensated by the support furnished. (Williams v. Hutchinson, 3 Comst. 312.)

But again, when the person rendering the service is a member of the same family at the time the service is rendered and is a near relative, so near, and the service of such a nature, that their performance would be prompted as well by affection as by desire for gain, the law will not imply a prohiise to pay, unless the circumstances are such as clearly to' rebut the presumption that they were rendered gratuitously. (1 Parsons on Cont. 529 and notes.)

The services in the case before us were rendered by a son, or by those of his family to' whose services he was lawfully entitled, to his aged and infirm mother who had been deserted by her husband, and left without any human being to take care of her or supply her wants, except so far as the use of the house and garden might enable her to supply them. If there is any case in which a child, possessed of human affections, could be presumed to render services gratuitously, this is the one. In the course of the twenty-five or thirty years during which this aged lady was left destitute and alone, this son furnished to her but a single barrel of flour and a few other articles of food. If he drew her a little fire wood, he seems to have cut largely from his father’s farm and for which he has never accounted. If his children made butter for her, they took half the product; if they cultivated the garden, they had the use of part of the land. Under such circumstances, if the son intended to charge the father for services, it was his duty to so inform him, or to prove such circumstances as would rebut the presumption that they were gratuitously rendered.

But it is said that such presumption is rebutted by the repeated declarations of the father that he intended to give to the son the farm at his death, as a compensation for his services and those of his family, and from the further fact, that in several wills made by- him, the father devised the farm to the son. •

Declarations of the intestate are proved, to the effect that he intended to give the farm to the son, and that he had in one or more wills, made and destroyed before his death, devised the farrti to the son. But this evidence is fully answered and overcome by the evidence on the other side, of the repeated statements of the son, that he had no claim against his father, and that too when the father called on him to know whether he had a claim which he ultimately intended to bring against him. The son had very considerable wood off the father’s farm and for which no account was kept dr rendered. And all inference favorable to the claim for services by reason of the making of a will or wills devising the farm to the son is fully met by the destruction of those instruments, which is a very significant act to show that he did not deem the son entitled to it.

The general term decided the case correctly on the merits, and their judgment should be affirmed.

Dentó, Oh. J. concurred with Mullin, J.

Judgment reversed..