text:
    Anson Doolittle, Respondent, v. John W. Dininny, Appellant.
    Where the statute requires an undertaking to be entered into by sureties in order to give a right of appeal, an instrument containing the requisite stipulations is valid, although it does not express a consideration, and is not under seal
    The statute of frauds applies only to common law agreements, where the con-. sideration was the subject of mutual agreement between the parties.
    It does not apply to instruments created under, and deriving their obligation from, special statutes, without the acceptance or assent of the party for whose ultimate benefit they were given.
    The Code prescribes no form for the undertaking to be given on appeal from the judgment of a justice of the peace.
   Davies, J.

This is an action upon an undertaking given by the defendant. On the 28th of May, 1857, the plaintiff in this action recovered a judgment in a justice’s court against one Charles E. Burgett, for the sum of $85.70, damages and costs, and from that judgment Burgett appealed to the county court. No execution was issued on the justice’s judgment.

On the 9th of November, 1857, the defendant in this action made and executed an undertaking in the words following: “Justice’s Court. Anson Doolittle v. Charles E. Burgett. Whereas, on the 28th day of May, 1857, before James Whittenhall, Esq., justice of the peace in and for the county of Steuben, the above named respondent recovered a judgment against the above named appellant for eighty-five dollars and seventy cents, damages and costs, and the above named appellant, feeling aggrieved thereby, has appealed therefrom to the county court of said county: now, therefore, I John W. Dininny, of the town of Addison, in the county of Steuben,-, do hereby undertake that if judgment be rendered against the said appellant on said appeal, and execution therein be returned unsatisfied in whole or in part, I will pay the amount unsatisfied. Dated 9th day of November, 1857 ”

In May 1858, the appeal was brought to a hearing in the Steuben county court, where the judgment of the justice was reversed, and judgment perfected in favor of said Charles E. Burgett for $24.66.

In June, 1858, Doolittle appealed to the General Term of the Supreme Court, from the judgment of the county court, and at the December Term of that court in 1858, the judgment of the county court was reversed, and that of the justice affirmed, and judgment rendered and perfected against said Burgett for the sum of $176.51 in the Supreme Court, and in the same month execution was issued on said judgment to the sheriff of Steuben county, and returned unsatisfied. The plaintiff then brought this action against the defendant upon this undertaking, and claimed to recover of him the said sum of $176.51, and interest from the date of said judgment. The defendant demurred to the complaint, and alleged that the same did not contain facts sufficient to-constitute a cause of action. The demurrer was overruled at Special Term, and the defendant, on leave granted, declined to answer, and thereupon judgment final was rendered against him for the amount claimed in the complaint and costs of this action, and on appeal the same was affirmed at the General Term, and the defendant now appeals to this court.

It is now insisted upon by the appellant, that the instrument upon which the plaintiff seeks to recover is void by the statute of frauds; that it is a special promise to answer for the debt, default or miscarriage of another person, and it is void, because no consideration is expressed in the written undertaking of the party sought to be charged. There is no force in this objection. The undertaking is prescribed by statute, and the object in giving it was to procure a stay of. execution upon the judgment in the justice's court. This undertaking was executed in conformity with the provisions of section 356 of the Code, and section 357 declares the delivery of the undertaking shall stay the issuing of execution, blow, the precise point made in the case at bar, was presented to this court for its consideration in Thompson v. Blanchard (3 Comst., 335). It was there held that where a statute requires an undertaking to be entered into by sureties in order to give a right of appeal, an instrument containing the requisite stipulations is valid, although it does not express a consideration and is not under seal, and that the statute of frauds applied only to common law agreements where the consideration was the subject of mutual agreement between the parties, and not to instruments created under and deriving their obligation from special statutes, without the acceptance or assent of the party for whose ultimate benefit they were given.

But it is urged that this undertaking does not fall within the influence of this decision, as it is claimed that it was not executed in conformity with the Code. It is contended that it departs from the form prescribed by the Code, in that it recites that an appeal had been taken to the county court of said county, and that it was provided in the undertaking that the defendent was to pay if the judgment be rendered against the said appellant on said apjpeai. In reference to the first objection, it is only needful to observe that the Code does not prescribe any form for the undertaking. It declares that a written undertaking shall be given, to the effect that if judgment be rendered against the appellant, and execution thereon be returned unsatisfied, in whole or in part, the-sureties will pay the amount unsatisfied. The Code contains no intimation that a recital to precede the undertaking is requisite, or what it shall contain if any is used. In the present case, a recital was eminently proper to make the undertaking intelligible, and it correctly recited the facts existing at the time it was given, namely, the court in which the judgment had been recovered, the names of the parties, the date of the recovery of the judgment, the justice before whom it was recovered, and the proper county in which he resided, and in and for which he was a justice, the amount of the judgment, that the appellant felt aggrieved thereby, and that he had appealed therefrom to the county court of said county. He could only by law have appealed to the county court of Steuben county, and the adding to the recital what was apparent, and would have been presumed, can. in no sense or degree vitiate or impair the instrument. It was only stating the truth, and if the recital had stopped with the word _ “ therefrom,” perhaps it might have been urged that the appellant had appealed to some other tribunal than the one he was authorized to appeal to, namely, the county court of the county in which the judgment had been rendered. Ho objection can reasonably be urged for making that certain, which the law would have presumed in the absence of any fact to the contrary.

The undertaking is to the effect required by the Code, nay, it is even in the words of the Code, except by the addition of the words “on said appeal.” This variation is of no importance, in view of the objection we are now considering, and it will be seen hereafter that they in no sense add to or take from the force and effect of the undertaking. The undertaking must therefore be regarded as in conformity with the directions of the statute.

It is contended also on the part of the appellant, that the condition of the undertaking has never been forfeited, as no judgment was rendered in the county court against the appellant therein, Burgett, and consequently there being no judgment in said court against him, no execution could be or had been issued thereon returned unsatisfied, nor was there any allegation in the complaint that any judgment of the Steuben county court remained unsatisfied. The theory of this objection is, that the undertaking only contemplated a liability upon the judgment of the county court, and if that court rendered no judgment against the appellant therein, no liability attached to the surety.

This doctrine was wholly repudiated by the Supreme Court in the case of Smith v. Crouse (24 Barb., 433). In that case the facts were, the action being upon an undertaking, in all respects like that'in this case, except the words “on said appeal ” were omitted after the word “ appellantThat the plaintiff therein brought an action in a justices’ court against one Frasee, and recovered judgment for $25 damages and costs against him. Frasee appealed to the county court, and in order to procure a' stay of execution gave the undertaking, upon which the action was brought. The county court reversed the justice’s judgment with costs, whereupon Smith, the plaintiff, appealed to the General Term of the Supreme Court, which court reversed the judgment of the county court and affirmed that of the justice, and judgment was thereupon duly entered for $107.91, interest, costs and disbursements, which included the judgment of the justice. An execution was issued upon this judgment of the Supreme Court, which was returned wholly unsatisfied, and an action was thereupon commenced upon the undertaking, in which the plaintiff claimed to recover the amount of the judgment of the Supreme Court and interest. The Supreme Court held he was entitled to recover the amount of that judgment on the ground that the undertaking, by fair and legitimate construction, was held to apply to the ultimate judgment which might be rendered. The court pertinently ask, if this restricted liability was intended, why were not the words “in the county court ” inserted after “rendered” in the undertaking ? The words used in the undertaking are broad enough to include any judgment which might be rendered against Frasee in that action, whether in the county court or this court. The case received the approval of this court, in this case of Robinson v. Plinnton (25 N. Y., 484), and the principle involved was deemed decisive of the appeal in that action. In the latter case the action was upon an undertaking given upon an appeal from a judgment at Special Term of the Supreme Court to the General Term of that court. The General Term reversed the order of the Special Term, and on appeal to this court, the judgment of the General Term was reversed and that of the Special Term affirmed. Judge Allen, in delivering the opinion of this court, said: “ In terms, the undertaking does not restrict the liability of the defendants to. the contingency of an affirmance of the judgment by the Supreme Court. The condition may as well refer to an affirmance by the judgment of any court to which the cause may go by appeal, or the final decision of the action in the court of last resort. There-was no reason for making the undertaking effectual only "upon the first appeal and for the judgment of a court which was not necessarily final; and the statute and the undertaking given in pursuance of it, have respect to the final determination in the court of last resort, or the last court to which the parties may take it by appeal.” Judge Seldeh, in his opinion in the same case, says: The substance of the obligation of the sureties was, that if on the final termination of the appeal the judgment should be affirmed in whole or in part, it should be paid, so far as affirmed, with damages and costs. If the first judgment of the General Term had been ag°ainst the appellant the defendants would not have been absolutely concluded by it, so long as they had any means of obtaining a contrary judgment either by a direct application to that court or by calling' in the aid of a higher court to correct their errors if they had committed any. They were holden to abide the final judgment upon their appeal, and the judgment of the appellate court, produced by the mandate of a higher court, has the same effect as if it had been arrived at without the interposition of such higher court. It is the final judgment upon the original appeal.”

These views are decisive of the appeal in the present action, and the judgment appealed from should be affirmed with costs.

All the judges concurring,

Judgment affirmed.

Potter, J., absent.


source: Caselaw Access Project

author: Potter, J. Denio, Ch. J.

license: Public Domain

text:
    Richard E. Mount, Jr., Executor, &c., Respondent, v. John Mitchell and Abraham Cummings, Appellants.
    Where an executor is cited before a surrogate to show cause why an execution should not issue against the estate of his testator, and, after a full hearing, the surrogate makes an order granting leave to issue such execution, no appeal lies from such order.

      It seems, that the making of such order is in the discretion of the surrogate. •
    Appeal from the judgment of the Supreme Court, first district, which reversed an order of the surrogate of the city of Mew York. In July, 1863, the appellants recovered a judgment against the respondent Mount, in the Court of Common Pleas of the city of ¡New York, for $1,261.76. Mount was sole acting executor of William B. Moffat, late of the city of ¡New York, who died in April, 1862. Letters testamentary were issued to Mount 7th May, 1862. In September, 1863, Mitchell, one of the appellants, applied to the surrogate of ¡¡Slew York for a citation to be issued to Mount as such executor, to show cause why an execution should not issue against him as such executor for the collection of said judgment. The citation was issued; Mount appeared and accounted for the amount of the estate, by showing that about $11,000 had come to his hands as the avails of personal estate; that an amount of personal property, amounting to $27,715.17, was not yet available by reason of its being under a lease; that the debts of the testator unsecured by mortgage, or other lien, including interest thereon, was about $42,000; that there was a large real estate worth, over incumbrances, above $150,000, from sales of portions of which above $60,000 had been realized, &c. Thereupon the surrogate made an order granting leave to Mitchell and Cummings to issue execution in due form of law against said Mount, as executor, for the amount of said judgment and interest. Mount appealed from this order to the General Term of the Supreme Court, giving an undertaking in the sum of $100 on such appeal. The General Term reversed the order of the surrogate with costs, from which judgment an appeal is brought to this court.

      Wm. R. Stafford, for the appellants.

      G. Tillotson,. for the respondent.
   Potter, J.

1. It is so entirely clear that the General Term had no jurisdiction of the appeal in this case, that it requires nothing further to be said than to read the provision of the statute, made for such purpose, to wit: “ Every such order shall be conclusive evidence that there are sufficient assets in the hands of such executor or administrator to satisfy the amount for which the execution is directed to be levied; and no appeal shall be made from any such order unless the person making the same shall execute to the plaintiff in such execution a bond with sufficient sureties, to be approved by the surrogate, conditioned for thepayment of the full amount so direeted to be levied, with interest thereon and the costs of defending the appeal, in case the order appealed from shall be affirmed.” ( 2 R. S., 116; 3 id., 5th ed., p. 204, § 22 [21],) The bond in this case was in the penalty of $100, conditioned “ to pay the costs that may be adjudged against him in the Supreme Court.” The amount of the execution directed to be levied was $1,261.76. I am not aware of any repeal or modification of this statute, or of any of its provisions in this respect; none was claimed on the argument, or referred to on the briefs. The provisions of this statute are plain and clear. It is not allowable to interpret what has no need of interpretation. Courts possess no power in such a case to give construction, but are to adopt its terms; it speaks its own unambiguous, emphatic, unmistakable language, plain to the comprehension of every ordinary mind. This statute is not unconstitutional; its authority is above the power of courts, and is to be obeyed. When a statute is conceived in clear and precise terms; when the sense is manifest, and leads to nothing absurd, there can be no reason to refuse the sense which it .naturally presents. To go elsewhere in search of conjectures, in order to restrain or extinguish it, is to endeavor to elude it. (Vattel, b. 2, ch. 17, § 263.) The section of the statute above quoted was enacted with especial reference to just such a case as that' before us. The first division of the section clearly intends to exclude from review, by another court, the question of discretion given to the surrogate in deciding as to the sufficiency of assets. It declares his order shall be aonclusime upon that point. Ho appeal, therefore, can be brought to correct or reverse such a decision. If for any other reason than that of the sufficiency of assets, the surrogate has committed an error, then the second part or division of the section applies; that declares thát no appeal shall be made for (my purpose, except upon condition of giving a bond in the form, and containing the prescribed amount of security specified. The last division of the section is not to be construed as authorizing an appeal in relation to the question of discretion upon the question of sufficiency of assets. It must be some other question than that for which an appeal lies. .The argument in this case, as well as the opinion of the General Term, show, that the only' error complained of is that the surrogate erroneously decided in relation to the sufficiency of assets. This reversal by the Supreme Court was error. They had no jurisdiction of the appeal upon that question. If we could be wrong in this view, the question of the sufficiency of the bond is fatal to the appeal. The condition upon which, only, an appeal can be taken has not been complied with. This was decided in Davies v. Skidmore (5 Hill, 503), per Bronson, J. But such a statute needs no adjudication to sustain it.

If we are called upon to look at this case upon the merits, it presents a single question arising upon undisputed facts. Mitchell and Cummings had obtained a judgment against Mount, as such executor, for $1,261.Y6, after a trial at law upon the merits. This statute, entitled, “ Of the rights and liabilities of executors and administrators,” ought to be permitted to speak forth its own decision of this case. It provides:

§ 20. “ Where a creditor shall have obtained a judgment against .any .executor or administrator, after a trial at law upon the merits, he may at any time thereafter apply to the surrogate having jurisdiction for an order against such executor or administrator to show cause why an execution on such judgment should not he issued.”

§ 21. “ The surrogate to whom such application shall be made, shall issue a citation, requiring the executor or administrator complained of, at a certain time and place therein to be named, to appear and account before him, and if upon such accounting it shall appear that there are assets in the hands of such executor or administrator, properly applicable, under the provisions of this chapter, to the payment in whole or in part of the judgment so obtained, the surrogate shall make an order, that execution be issued for the amount so applicable.”

Exactly what these sections direct, was done. The executor rendered his account of the estate; he had been an executor above one year; he had $11,000 in his hands, avails of personal estate, In his account of the estate, and of the performance of his duties, he set up no claim that he had paid a single debt; there was no claim that there was any debt, that by law, was entitled to preference, or, that there was any amount of debts to be preferred that would exhaust the $11,000, or any part of it, and, although the whole debts of the testator would exceed the moneys in hand arising from the sales already made of personal estate, yet he showed to the surrogate, in his account, a large amount of real estate, more than sufficient, with the other personal estate not yet made available, to pay all the testator’s debts, with the avails of $60,000 of the proceeds of the sales of real estate, which had then been realized. The surrogate could see from such an account, an abundance of means that could be ordered to be applied to debts, sufficient to pay all the testator’s debts. Why, then, if it could be inquired into at all, should not the executor begin to pay? Should the court interfere, even if it had the power, with this exercise of judicial discretion of the surrogate? The legislature intended to prohibit the interference. If they have not done so, it is for want of power in the language they have employed. I think the Supreme Court were in error, when they say, “ the surrogate had no authority to direct an execution for. the payment of this judgment.” The Supreme Court give two reasons as the basis of their opinion. The first is, that the sections we have quoted, would nullify the previous provision contained in article 2 (3 E. S. 5th ed., p. 174, § 31), which directs every executor and administrator to pay the debts of the deceased, according to a specified order of classes: 1. Debts entitled to a preference under the laws of the United States. 2. Taxes assessed upon the estate of the deceased previous to his death. 3. Judgments docketed, and decrees enrolled against the deceased according- to the priority thereof respectively. 4. All recognizances, bonds, sealed instruments, notes, bills, and unliquidated demands, and accounts.

There are several answers that can be made to this:

1. The statute cited by the Supreme Court, by force of this same argument, also nullifies that, which we have supposed controls this case. Which statute, then, is nullified ? Or, being equal, do they nullify each other ? If both are not destroyed, which survives? The theory of the Supreme Court in this regard cannot be sound. One of these statutes is not in conflict with the other; one does not, therefore, nullify the other; nor is such the rule of treating statutes, in regard to their construction, even where they appear to be in conflict. The rule, as I understand it, is, “ that two statutes shall stand together and both have effect if possible, for the law does not favor repeals by implication, and are never allowed of but where inconsistency and repugnancy are plain and unavoidable, and all acts in pari materia should be taken together as if they were one law.”

There is no apparent inconsistency or conflict in the meaning, or in effect, between 'these two statutes. The statute cited by the Supreme Court is intended to be a direction to executors and administrators as to the manner of performance of their duties, and prescribes the order of preference to be observed by them in the payment of debts. This is its express object, and executors and administrators, when they proceed to discharge their duty, are bound to obey this direction. Where debts are all of the same class, all are entitled to an equality in payment, whether it be entire or partial. When the executor omits or refuses to perform this duty, then the other statute furnishes a remedy, and that is its object. The one prescribes the duty, the other furnishes a remedy in case of neglect. Instead of being in conflict, or the one nullifying the other, they are in harmony, and in aid of each other, and both are thus useful and necessary. If a debt, not in judgment, is omitted to be paid, and the executor or administrator refuses to pay it, the creditor can at any time, after six months from the time of the granting of letters, make a like application to the surrogate (2 B. S., 116, § 18). A judgment creditor can apply "before six months (§ 20). In the debts of the intestate, in the case before us, there was no debt having a preference over others. The appellants’ claim, though it was in judgment, had no preference in this respect, because the judgment was not perfected previous to the death of the testator; none is claimed on.that account. If it had appeared, on the accounting before the surrogate, that there were debts entitled to preference (though it did not), and an order had been granted giving a lower order of debt in the rule of preference a priority in payment, this might have been the conflict which the Supreme Court supposed. Bo such thing, however, appeared. It was for the executor, when he was called upon to pay, and when called upon to account before the surrogate, to show cause, to have interposed this legal excuse, if it existed; and such legal reason for declining to pay, the surrogate would have been bound to regard. Bo such excuse was made, nor is now claimed or pretended by the executor. It is a maxim “that if he who can and who ought to have explained himself clearly and plainly, has not done it when the occasion demands and opportunity is presented to him, he cannot be allowed to introduce subsequent restrictions, that which he has not at the proper time expressed. It was error in the Supreme Court to assume, and to base their decision on the assumption, of the existence of debts having right of preference of payment, not shown, and not set np in the respondent’s account, and, therefore, not in the case.

2. The second .error of the Supreme Court, an 4 one upon which they base their opinion, is, that there must have been a settlement of the accounts of the executor before the surrogate could make such an order. The statute requires'no such thing, but provides to the contrary; nor is such the practice. (Day ton’s Surrogate, 2d ed., 336, 337.) The meaning and intent of the word accownt, as used in this 21st section of the statute, as explained by the statute itself, is such an account of the condition and amount of assets as will enable the surrogate to determine whether there is any property applicable to the debt in question. It cannot be made to mean a settled or liquidated account, or an account then and there to be liquidated. The statutes relieve the executor from an accounting and liquidation till after one year from the time of taking out letters; that is, he cannot advertise for claims to come in until after six months, and the notice of publication must continue six months, whereas the account, in the present case, in the contemplation of the statute we have been considering, and upon which this case proceeds, allows such an account to be demanded at any time after letters are issued. Obviously, therefore, it does not contemplate a settlement of accounts. If on such an accounting as. is intended by this statute, the executor should show that he had not been able to ascertain the amount of debts, or that there were debts which, by the statute, had preference in payment; that there was a doubt about the sufficiency of assets or means to pay all the creditors; or any other good reason, the surrogate would, doubtless, in the exercise of a discreet judgment, have refused the order. Such a case was not presented to him. The surrogate did exercise his discretion. If that question was subject to review, we should say, properly exercised it; but we have shown that that discretion was not the subject of review; we have shown that the Supreme Court obtained no jurisdiction of the case, and that if they had, they erred in their judgment on that review. I think the judgment of the Supreme Court should be reversed, with costs of that court and of this court.

Wright, Davies, Brown, and Davis, JJ., concurred.

Denio, Ch. J.

I am of opinion that the order of the surrogate was erroneous. An executor or administrator cannot be compelled to render a general account of his administration, nor can he do so at his own instance, until after the expiration of eighteen months from the time of the taking out of letters. (3 R. S., 178, 182, §§ 57, 77.) But by another provision of the statute a creditor without judgment may apply to the. surrogate for an order for the payment of his debt, or any portion .of it, after six months from the time of granting the letters ; and by still another section a creditor who has obtained a judgment against the executor or administrator, after a trial on the merits, may apply for an order to show cause why an execution should not be issued. The surrogate in such a case is to issue a citation requiring the executor, &c., to appear and account before him, and if it shall appear upon such accounting ” that there are sufficient assets in the hands of such executor or administrator, properly applicable under the provisions of this chapter to the payment in whole or in part of the judgment so obtained, the surrogate shall make an order that execution be issued for the amount so applicable.” (3 R. S., 204, §§ 18, 20, 21, 22.) The statute appears to contemplate that an estate may be so circumstanced that a particular debt might be properly paid, or a judgment satisfied, before the arrival of the period for final accounting, and without such final accounting being had; and such cas.es, doubtless, often occur. Where a creditor has obtained such a judgment a provisional accounting is to be had, so far as to ascertain that the executor has the means of paying the particular debt or a part of it, without prejudice to himself or any other creditor. If the affidavit of the respondent could be considered an accounting, it would appear that he had in his hands realized assets to less than thirty per cent of the debts. If the funds received for real estate sold should be included, the amount would not pay a dividend, equal to one-lialf of the debt. But the sale of the real estate having taken place under an order of the Supreme Court, the executor was not obliged to account to the surrogate for these moneys. The judgment was not entitled to any priority in payment over the other debts of the testator, but in case of a deficiency was entitled to a pro rata share. It is only judgments and decrees rendered against the deceased in his lifetime that have a preference over simple contract debts. If this judgment, therefore, should be paid in fall, the judgment creditors would obtain an unlawful preference over the other creditors, unless further assets, sufficient to pay all the debts, should afterwards come into the hands of the executor. The amount of the whole inventory, according to the affidavit, is much less than the aggregate of the debts, and a considerable portion of the property was held under a lease for lives executed by the testator.

But I am of opinion that the order was erroneous, because an account was not ordered or taken. The statute requires that the citation should be for the executor to appear and account. The citation actually issued did not allude to an accounting, but required the executors to show cause why execution should not issue, as though there was a judgment in the surrogate’s court. As the executors appeared, the citation would be disregarded if the subsequent proceedings had conformed to the statute. Again, there must be an accounting before an order for execution, and then it can be issued only for the amount of assets applicable to the pay-' ment. The affidavit cannot be considered an account. Its purpose was to show that an account at that time was unnecessary. I do not say that it was sufficient for that purpose; but if the surrogate determined it was not he should have ordered an account to be presented, which, should have been examined by the surrogate and settled so far as to show that there were assets sufficient to pay the debts.

It is urged by the counsel of the appellants that an appeal to the Supreme Court was never perfected, because a proper bond was not given by the present respondent when he undertook to appeal to that court. One of the sections already referred to declares that every order made under the preceding section shall be conclusive evidence that there are sufficient assets in the hands of the executor, &c., to satisfy the amount for which the execution is directed to be levied, and that no appeal shall be made from any such order unless the appellant will execute a. bond with sureties to pay the amount directed to be levied if the order shall be affirmed. (§ 22.) The bond copied in the return in this case is the one required by 3 R. S., § 26 (2 R. S., 1st ed., 610, § 108), which is applicable to appeals from all orders of a surrogate except certain ones which are specified. I am of opinion that as the order appealed from cannot be said to have been made under the provisions authorizing an award of execution upon a citation to account, and upon an accounting had pursuant to such citation, the bond required in such cases need not have been given. As the order was wholly unauthorized by the statute, it has not the effect which the statute attributes to such orders, and may be reviewed on giving the security required on appealing from orders in respect to which the several provisions applied. In Davies v. Skidmore (5 Hill, 501), it was held that a bond like the one given in this case was sufficient where the judgment upon which the surrogate had awarded executions was rendered by default, instead of a trial on the merits. It was thought that under 2' E. S., 1st ed., 88, § 32, a surrogate might direct executions to issue on any judgment. I am not clear that this was correct, but am inclined to the opinion that the exception in that section has reference to the more detailed provisions which I have cited from a later title of this chapter. However this- may be, the case is an authority .to show that the special bond is not required unless the order was made under these provisions, which was not the case as to the order appealed from.

I am for affirming the judgment of the Supreme Court.

Porter and Campbell, JJ., concurring,

Judgment reversed.


author: Denio, Ch. J. Brown, J.

text:
    Jacob Bakeman v. Absalom Talbot.
    Where, by the report of the commissioner appointed by the court to make partition of land between heirs, the right of way is reserved across c'ertain parts of the partitioned premises, for the purpose of enabling certain heirs to have access to wood land set to them, the party whose premises is burdened with this right of way is bound to make its use as convenient as the mode of access which the farmer usually provides for himself to get to and from his wood land.
    In the absence of any specific agreement between the parties, one whose premises is burdened by such an easement is bound to afford reasonable facilities for its enjoyment by the other party.
    The action is in the nature of a bill in equity to establish a right of way claimed by the plaintiff over the land of the defendant, and to enjoin the latter from continuing certain fences which he had erected, and to compel him to remove them. A farm, of which the premises owned by the plaintiff and those owned by the defendant are parcels, embracing a certain lot Bo. 179, was formerly owned by one De Groot, who died intestate in 1838, leaving children, to whom the land descended. Partition was made between them by suit in chancery in the year 1839. The commissioners appointed by the court to make partition divided the farm into several smaller lots, and allotted the one numbered 12 to the party under whom the plaintiff derived title by a subsequent conveyance. Lots numbers 9, 10 and 11 were set off to parties under whom the defendant subsequently acquired title. The four lots were wood lots, and lay adjoining each other, and are bounded on the north by the northerly line of the original farm, the plaintiff’s being the eastermost of the four lots. There is a public highway running westerly of the lots. The report of the commissioners (which was confirmed by the court) contains the following provision: “ The right of way or passage is reserved to the said heirs respectively, and to their heirs and assigns, from the highway, near the west line of said lot number 179, and immediately adjoining the north line of the farm aforesaid, and extending east along the north line of said farm to the extreme east corner of the wood lots aforesaid, to enable them to pass to and from them respective wood lots for the purpose of obtaining wood and timber therefrom, or for any other purpose.” The plaintiff’s lot remained unimproved, but the defendant’s had been cleared and were under cultivation. The defendant, before the commencement of the suit, had built a fence between his eastermost lot ,and the plaintiff’s lot, and also fences between each of his other lots, each fence running quite to his northerly line. Two of the' fences were built with stakes, “ with rails to slip between them like bars.” The other was of rails, and had what is called in the case a “slip gate” at the northerly end, which was the place he passed, so that the rails could be taken out and turned round, and so that the plaintiff could pass through. After the commencement of the suit, the defendant put up bars on the lines of three of the lots. The plaintiff’s premises being a wood lot, he had no occasion to use the reserved passage way except at long intervals.
    The plaintiff claimed that the defendant ought to have placed gates at the place of passage, but this the defendant refused to do, upon which the plaintiff threatened to leave the fences down, and the defendant threatened him with personal violence if he should do so.
    The judge (Hon. Daniel Pkatt, before whom the case was tried without a jury), after stating the foregoing particulars as conclusions of fact, determined, that although the plaintiff was entitled to a right of passage over the defendants’ land at the place indicated, yet that the maintaining ,th,e fences there was not an obstruction which the plaintiff was entitled to have removed. Judgment was accordingly given in favor of the defendant, with costs, upon which the ulaintiff prosecuted this appeal.
    The case was submitted on printed points. *

      A. J. Parker, for the appellant.

      L. H. & F. Hiscock, for the respondent.
   Denio, Ch. J.

No question is made but that the plaintiff is entitled to a right of way or passage across the north end of the defendant’s land. The extent of that right, and the duty of the respective owners towards each other, is to be determined by the language of the reservation and the circumstances of the case. The plaintiff insists, in substance, that the defendant was bound to keep open a narrow road or lane across the north end of his land, or if he will not do this, that he should, at least, insert swinging gates in his fences which might be opened and shut with ease whenever the plaintiff had occasion to pass. What the defendant did, as I understand the testimony and the judge’s conclusions, was to subdivide his land in the manner which he found convenient for its occupation, running' the fences quite to his northerly line, making arrangements, however, at the place indicated for passage, by which the bars or rails could be readily removed and conveniently replaced when the plaintiff should have occasion to go through. This would no doubt be somewhat less beneficial to the plaintiff than either a clear space like a common road, or a series of gates which could be opened and shut like doors. But it would be much less onerous to the defendant, who, upon the plaintiff’s position, would have to forego the use of a considerable strip of land, and, in addition, to build a lateral fence across the whole north end of the premises, or to incur considerable expense in erecting gates. I am of opinion that the defendant’s position presents the more reasonable view of the case. The main object of the reservation in the commissioner’s report, was to enable those of the proprietors who should become the owners of the lots most remote from the highway to go upon and pass over the land of the others situated between them and the highway, without committing a trespass, and to define the direction of such passage. We are not to intend that it was designed to make the burthen unnecessarily onerous. The circumstance that the land was wholly in forest, and that the primary purpose indicated was the carrying of wood and timber, do not suggest the necessity of a thoroughfare like a highway, or an unimpeded private way. If the passage was made as convenient as the mode of access which a farmer usually provides for himself, to get to and from his wood land, it seems to me, that the purposes of the reservation would be confirmed. De Groot formerly possessed the whole farm. It was about to be subdivided and assigned in severalty to different owners. It would be improper that those to whom back lots were assigned should be precluded from getting to the highway except by'committing a trespass, or by claiming a way by necessity, a right but little known and not of convenient application. Moreover the exigencies of the case did not contemplate a constant use of the passage, but only such an occasional use as the resort to wood land would require, and such as the plaintiff has since exercised. There is no reason to believe that if the plaintiff, besides owning the back wood lot, had also been the proprietor of the intervening cleared land, he would have found it necessary or thought it expedient to have fenced out a lane, or have erected these gates for his use in passing to and from his timber land, and if he would not have done so it is unreasonable to require it of the defendant. The defendant certainly has no right to preclude the plaintiff from availing himself of the right of passage, or to render the exercise of that right unusually or unreasonably difficult or burthensome. I think he is not shown to have done so. It must be kept in mind that the plaintiff’s lot is still wood land. It may remain so for many years; but it may be cleared up and cultivated, and have buildings erected on it and be applied to such uses as to require constant and frequent passage between it and the highway. There is nothing inconsistent in holding that the present arrangements are suitable and sufficient under existing circumstances; and after these circumstances have changed, and the question shall arise as to what shall then be proper, to determine that a passage perpetually open or a system of gates better adapted to such increased use than the present fences and bars, shall be required of the defendant. It would not be right at this time to oblige the defendant to furnish facilities for a state of affairs which may never arise, or which may not arise until some remote period. The doctrine that the facilities for passage where a private right of way exists, are to be regulated by the nature of the case and the circumstances of the time and place, is very well settled by authority. (Hemphill v. The City of Boston, 8 Cush., 195; Cowling v. Higinson, 4 Mees. & Wels., 245.) The last case determines, in effect, that the extent of the privilege created by the dedication of a private right of passage depends upon the circumstances, and raises a question for the determination of a jury. If, therefore, in the present case I felt less confidence in the conclusion I have stated than I do, I should hold the question had been settled by the judge sitting in the place of a jury in a manner that we could not disturb.

The judgment should be affirmed.

Brown, J.

This action is brought to remove certain obstructions from a private way claimed by the plaintiff over certain lands of ,the defendant, and for an injunction'. The case was heard before Mr." Justice Pbatt without a jury, who ordered judgment against the plaintiff, which was affirmed at the General Term.

Both the plaintiff and the defendant derive their title to the lands referred to in the pleadings and proofs from James De Groot, deceased, who died seized of them. Some time about the year 1839, upon a bill filed in the late Court of 0 Chancery for a partition, certain, commissioners were appointed to make partition, who divided the lands into lots numbered from Mo. 1 to Mo. 13 inclusive. The division lines of the lots run north and south, and are bounded on. the north by the lands of Chester Fellows. In the decree of partition there is the right of way claimed by the plaintiff in the following words: the right of way or passage is reserved to the said heirs respectively, and to their heirs and assigns, from the highway near the west line of lot Mo. 179 (being the premises partitioned), and immediately adjoining the north line of the farm aforesaid, and extending east along the north line of said farm, to the extreme northeast corner of the wood lots aforesaid, to enable them to pass to and from their respective wood lots for the purpose of obtaining wood and timber therefrom, or for any other purpose.” The defendant is the owner of lots Eos. 9,10 and 11, and the plaintiff is the owner of lot Eo. 12, in fee by title derived from the heirs of James De G-root, and it has been necessary for the plaintiff occasionally to pass along and upon the way reserved to and from his lot Eo. 12, over lots Eos. 9, 10 and 11. There are three fences put up by the defendant across the way. One between lots Eos. 11 and 12, another between Eos. 10 and 11, and another between lots Eos. 9 and 10. In two of the fences he put stakes with rails to slip between them like bars, so as to be easily removed, and in the other he put what is called a slip gap, where the rails could be taken out and turned round, so that the plaintiff could pass and repass. These were the obstructions complained of. The plaintiff used the way at considerable intervals of time to get his wood, and the lots of the defendant were under cultivation. The claim of the plaintiff proceeds upon the theory that he is entitled to an open road, free from fences, with gates, bars and openings, which can be opened and closed at pleasure, and this is the only question presented by the appeal.

The easement is a right of passage without defining the manner of its enjoyment with or without bars or gates over the agricultural lands of the defendant. Eothing passes as an incident to such a grant, but what is requisite to its fair enjoyment. That must be the reasonable and usual enjoyment and user of such a privilege. The fee of the land still remains in the grantor of such a privilege, and he may use his lands and appropriate them to such purposes as he pleases, consistent with the grantee’s right of passage to and fro. The plaintiff claims that the lands of the defendant shall be thrown open without fences or protection, or that he shall be required to erect a fence upon both sides of the way throughout its entire length, leaving the entrance open at the western end. The first of these propositions would, in effect, deprive the defendant .of the use of his lands for cultivation, while the second would entail upon him an amount of expense in the making and maintaining the fences, quite as damaging in its consequences. The grantee of a private way is bound to keep it in repair, and cannot deviate from it and go upon another part of the grantor’s lands, when it becomes impassable by floods or otherwise. And this shows that he must do whatever may be necessary to the reasonable and proper enjoyment of the right.

The judgment of the Supreme Oourt should he affirmed.

Judgment affirmed.


author: Denio, Ch. J.

text:
    James W. Cyphers, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.
    The omission of the county judge to designate, under the Laws of 1851 (ch. 444), at what terms of the Sessions a grand or petit jury shall be required to attend, does not deprive the court of its authority, as such, to impannel a grand jury at any of its terms.
    The law of 1851 (ch. 444) is so framed that, in the absence of a designation of any terms to be held without a jury, the general provisions of law respecting the drawing and summoning of juries will take effect, and will require a jury to be drawn and summoned at every term. (See Laws of 1847, ch. 280, § 42.)
    Where the two justices of the Sessions fail to attend the Court of Sessions, the county judge may call upon the bench two other justices; and, subsequently, the two justices of the Sessions may appear and take their seats.
   Denio, Ch. J.

The plaintiff in error was indicted in the Com't of Sessions of Otsego county of the offense of murder, at the February Term of the court, in the year 1864. The indictment was removed into the Court of Oyer and Terminer of that county, where the plaintiff in error was arraigned and pleaded not guilty. He was afterwards permitted to plead specially, in abatement, certain matters drawing in question the legality of the constitution of the grand jury by which the indictment ‘was found, and of the court to which it was presented. The first mentioned of these pleas set forth that, in designating the terms of the Court of Sessions, the county judge did not designate at which of such terms a grand or petit jury should be required to attend. The order of the judge was set forth in the pleas, and, by it, terms of the County Court and Courts of Sessions were required to be held, in each of the years 1864 and 1865, on the second Monday of February and the first Monday of August; but nothing was said in it respecting the attendance of juries.

The statute on this subject is in these words: “ Courts of Sessions, except, &c., shall be held in the respective counties, at such times as the county judge of the county shall by order designate. And the county judge shall, in such order, designate at which terms of the Sessions a grand or petit jury, both or neither, shall be required to attend; and no grand or petit jury shall be required to be drawp or summoned to attend any term of the Court of Sessions which shall be designated by the county judge to be held without such jury.” (Laws, 1851, ch. 444.)

The county judge did not perform his whole duty, in that he omitted to state distinctly the matters which the statute required to be stated. But the statute is so framed that, in the absence of a designation of any terms to be'held without a jury, the general provisions of law respecting the drawing and summoning of juries will take effect, and will require a jury to be drawn and summoned for every term. (Laws, 1847, ch. 280, § 42.) If the clerk and sheriff do their duty, as they did in the present instance, a jury would necessarily be made to attend, in the absence of any direction to the contrary. We think the omission to designate any of the terms, as terms to be held without a jury, did not involve, as a consequence, the nullity of the court, .or deprive it of its quality of a court for the impanneling of a grand jury. We concur with the Supreme Court in holding that the requirement to indicate the terms to be. held with or without a jury should be considered as only directory, and not essential to the validity of the court.

The other pleas show that, at the commencement of the February Term of the Sessions, the county judge attended, but neither of the two designated justices of the peace attended; upon which, the judge called upon the bench two other justices of the peace, and adjourned the court from the 8th day of February, when it commenced, until the 10th of the same month. On that day the two justices elected as justices of the Sessions took their seats, and the court was subsequently held by the county judge and the last mentioned justices; and it was so held at the time the indictment was brought in. This was authorized by statute. (2 B. S., 5th ed., p. 296, § 11.) The point .made by the counsel for the plaintiff in error is, that, the language being that “if either ■of the said justices shall not attend,” &e., the vacancy shall be supplied, &c., only the omission of one to attend is provided for. That construction is too narrow. The language is to be construed distributively, and applies ioties quoties to each of the designated judges, if both fail to attend. The vacancy of one is supplied, and then that of the other.

We are of opinion that the Supreme Court gave the proper effect to the statutes, and that its decision should be affirmed.

¡No objection was taken by the counsel for the people as to the form in which the questions were presented by way of pleas in abatement; and we are not to be considered as giving any opinion upon that question.

The judgment here given must be remitted to the Supreme Court, to be by that court remitted to the Oyer and Terminer of Otsego county, with directions to proceed upon the indictment against the plaintiff in error according to law.

All the judges concurring,

Judgment affirmed.


text:
    James Parker, Jr., and Thomas Wright v. The City of Syracuse.
    An order for the payment of money in the hands of the payee, or his assignee, is evidence in writing of his title to the payment, which cannot be varied or contradicted by parol evidence.
    But it is competent for parties, after such order has been delivered or assigned, to waive rights that have been acquired thereby, or to modify them; which waiver or modification may be proved dehors the order itself.
    The appeal in this case is by the plaintiffs from a judgment of the Supreme Court, rendered upon the report of a referee; By this report, only $41.59 was found due to the plaintiffs, and judgment was consequently given against them for the balance of the defendant’s costs, which amounted to $77.80.
    The action was brought to recover an amount alleged to be due the plaintiffs from the city corporation, arising out of the following circumstances: One A. L. Scofield had been employed by the proper authorities of the city to construct certain plank sidewalks, in the streets, he furnishing the materials ; and on the 23d day of January, 1857, there was due to him for such work and materials the sum of, $594.08, which had accrued in the year 1854, and $1,210.49 which accrued in 1856. The plaintiffs, during the year 1856, had furnished lumber to Scofield for, and which was used in that work, for which he was indebted to them in the sum of $1,420. On the said 23d January, 1857, Scofield signed and delivered to the plaintiffs an order on the comptroller of the city in the following words: “ John A. Clark, comptroller: Pay Parker & Wright fourteen hundred and twenty dollars on plank road and sidewalk accounts, and charge to my account. January 23, 1857. A. L. Scofield.” On the same day, the plaintiffs left this paper with Mr. Clark, the comptroller, who, though he did not accept it, gave Mr. Parker, the plaintiff, who brought it, to understand that it would be paid so far as there should be moneys due to Scofield, and funds applicable to its payment.

      According to the finding of fact of the referee, there was a prior order given by Scofield to one Bogg for $50. The comptroller paid that order, and he also paid Scofield, after he had received the plaintiffs’ order, one hundred and ten dollars; and he paid the plaintiffs on account of their order, at various times, $1,014. On deducting these several sums from the $1,210.49, owing by the city to Scofield for the work done in 1856, there would remain $36.49, which, with the interest thereon, made up the sum reported to be due to the plaintiffs. The referee excluded from the influence of the plaintiffs’ order the amount due to Scofield for the work done in 1854. The plaintiffs claimed that their order embraced the whole of the indebtedness of city to Scofield, including that which was owing for work done in 1854; and also that the'payments by the city to Scofield, after notice of the order, was in violation of their rights. Evidence was given addressed to these points. One Williston, an employee in the comptroller’s office, was examined on behalf of the defendant, and stated that he was present at an interview between the comptroller, Scofield and Hr. Parker, one of the plaintiffs, at the comptroller’s office, immediately after the giving of the order to the plaintiffs, that paper being then in the hands of the comptroller, in which Scofield mentioned certain amounts which he said he was in honor bound to pay out of the fund, and that the balance should go to the plaintiffs, that he understood all the parties to assent to that arrangement; but he could not state the precise amount reserved to Scofield. The defendant’s counsel then asked the witness the following question: Out of what fund was Scofield to be paid for the work in question ? It was objected to by the plaintiffs, who excepted to the ruling admitting it. The answer was that “ he was to be paid from the local improvement for the particular work performed. Nothing was said about the debt of 1854 in that interview. A similar question was raised and decided against the plaintiffs, who excepted, in another part of the witness’ examination, and the testimony thus received was to the effect that the witness several times looked over the accounts of the indebtedness of the city to Scofield, with the plaintiff Parker, and that no accounts were referred to on either occasion except those for the work of 1856. He said “Mr. Parker claimed for work of 1856, and nothing more.” Mr. Clark, the comptroller, in his examination on behalf of the defendant, related several conversations which he had had with Parker and Scofield respecting the claim of the plaintiffs under their order, and said that in all of said interviews Parker spoke only of the indebtedness for work in 1856, and that he wanted to know what was the amount due Scofield for work in 1856. The witness also testified, in effect, that Parker assented to a proposal that the witness, as comptroller, might pay to Scofield, notwithstanding the order, an amount of about $100, a little more or a little less, which Scofield said he had pressing need of.
    It appeared that the work of this kind for the city was done in 1856 under a different system than that which prevailed in 1854. In the earlier year, the contractor was entitled to a draft on the treasury when his work was done, but in 1856 the work was- done under contracts uy the terms of which the money was to be raised by assessments for local improvements, and to be paid only when the city should be in funds from the proceeds of the local taxation.
    Both Scofield and Parker, on their examinations, denied that there had been any agreement or understanding with the comptroller that Scofield should receive anything to the prejudice of the order, or that there was any understanding limiting the order to the work of 1856. The plaintiffs offered to prove by Scofield that it was the express understanding between him and the plaintiffs, at the time the order was given, that if the amount due for the work of 1856 was not adequate to the payment of the order, it was to be paid out of the work of 1854. The defendant objected to the evidence, and it was excluded and the plaintiffs excepted.
    The city had paid the frill amount of the work of 1854 to an assignee of Scofield, whose assignment was executed subsequently to the plaintiffs’ order.
    The referee’s findings stated the material parts of the foregoing facts; and upon the points principally litigated, it was in the following words : “ That when said order (of the plaintiffs) was delivered to said -comptroller, it was understood foj the plaintiffs <md the said comptroller that it was drawn upon the indebtedness of the said city to said Scofield for work done and materials furnished under said contracts of 1856; and it -was agreed between the said plaintiffs and the said comptroller acting for the city, that the balance of said indebtedness should be applied upon said order after paying any previous orders given by said Scofield, and also paying said Scofield thereof the sum of about $10Q,”

      S. N. Holmes, for the appellants.

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

There can be no doubt but that the order which the plaintiffs obtained from Scofield, accompanied with the evidence that it was given for value, was a valid equitable assignment of the demand which Scofield had against the city. The delivery of the order to the comptroller, had there been nothing to qualify it, was, under the circumstances, suffi cient notice of the assignment to charge the city. These points were decided in Field v. The Mayor, &c., of New York (2 Seld., 179), and were reaffirmed in Hall v. The City of Buffalo, at the September Term of the last year.

The terms of the order were sufficiently broad to embrace any indebtedness of the city to Scofield, which would fall within the descriptions ofplank road and sidewalk accounts,” and there appears to be no doubt but that all the work and materials in respect to which the debt incurred in 1854, as well as that in 1856, arose, was of that character. Although the order was not a contract to which the defendant was a party, it was evidence in writing of. the plaintiffs’ title to payment out of the moneys referred to in it, and was hence within the protection which the law of evidence affords to written instruments, and which precludes their being varied or contradicted by parol.

It was quite competent, however, for. the plaintiffs to waive any of the rights which they acquired by the assignment. If, at the time of delivering the order to the comptroller or afterwards, they consented that Scofield might, notwithstanding, receive any part of the money which the city owed him, and so informed the proper officer of the city, and the latter, before any countermand or retraction of the license thus given, paid Scofield accordingly, such payments being within, the scope of the permission, would be valid payments, and the plaintiffs could, upon the plainest principles of justice, be precluded from questioning them, and from claiming that the money should be again paid to them. The evidence on the part of the defendant, and the finding of the referee bring the payment of the $11Q made to Scofield within those principles, and were a perfect answer to so much of the plaintiffs’ claim upon the fund.

I am furthermore of opinion that they might limit and restrain the rights which he acquired by the order, by an arrangement with the city through its proper officers. The city was not a party to the order, which was a transaction wholly between the plaintiffs and Scofield. If notice had not been brought home to it, of its contents, it would have been at liberty to pay to Scofield the whole amount which they owed him. But after notice, such payment would be a violation of the equitable rights which the plaintiffs had acquired by means of the order and the notice. Notwithstanding the general terms of the order, it was competent for Scofield and the plaintiffs to have agreed that the former should retain the control of that part of his entire claim against the city, which arose in the year 1854. But if the plaintiffs, in consequence of such an agreement, or without having made one, informed the accounting officers of the city that such were the terms of the arrangement, and they or their successors had acted upon it, the plaintiffs would have been bound. This is what the defendant offered to prove by the evidence, which was excepted against by the plaintiffs’ counsel; and the evidence tended to prove it. Mr. Willisten swore that Mr. Parker, one of the plaintiffs who acted in their behalf .in the business, claimed for work in 1856, and nothing more, and upon that and some other evidence having a similar tendency, dhe referee has found that it was understood between the plaintiffs and the comptroller of the defendant, that the order was drawn upon the indebtedness of 1856.

The testimony was not very precise or direct, but it had a legal tendency to show that the notice which the defendant’s officers had of the order, was qualified, by a declaration in substance that it was not intended to embrace, and was not claimed to embrace the work of 1854. In consequence of this, as we are to presume, the defendant recognized the subsequent assignment by Scofield to another party, of what was due to him for that work. It may be considered to have been paid by the plaintiffs’ permission. The defendants have paid all that they owed for the entire work and materials furnished by Scofield according to his direction and appointment, as interpreted and made known to them by the plaintiffs. It is not for us to judge of the relative weight of the evidence produced by the defendant and by the plaintiffs. That of the defendant was competent, and tended in some degree to establish the position on which it relied, and the referee, to whom that question was by law committed, has found it to be satisfactory, notwithstanding the contradictory evidence. We cannot interfere with that determination.

It was no answer to this view that the plaintiffs and Scofield agreed at the time the order was signed, that if the indebtedness of 1856 should not prove sufficient, the amount should be paid out of that of 1854. The order, as I have assumed, embraced all the indebtedness of both years, and the evidence would not have improved the plaintiffs’ case. If this were otherwise, the proof would have been incompetent upon plain rules of evidence. There was no inconsistency between the ruling which excluded this evidence, and that by which the effect of the order was limited by the qualification which the plaintiffs voluntarily annexed to it.

I am in favor of affirming the judgment of the Supreme Court.

All the judges concurring,

Judgment affirmed.


text:
    Abram M. Benton v. Stanley Martin.
    Where a sight draft had been lost before presentation for payment, and a duplicate one had been obtained therefor of the drawer, the necessary delay in. presenting the second draft for payment will be excused.
    The drawer, by giving the second draft upon the assertion of the loss of the first by the plaintiff, admits its loss, and also the impossibility of its presentation for payment. ■
    Due presentation of the second bill, with notice of protest, will bind the drawer, though thirty days may have elapsed from the time of the drawing of the lost draft.
    This action was brought, in the Supreme Court, on a draft or bill of exchange drawn by the defendant for value received by him of the plaintiff, on Messrs. Griggs & Lathrop, of Mew York, for $2,026.83, payable to the order of the plaintiff at sight. The complaint set forth a presentment and a protest for non-payment, and notice to the defendant. The bill was dated the 10th July, 1857, but was actually drawn and delivered to an agent of the payee on the 10th day of August, in that year, at the defendant’s place of business, at Clean, Cattaraugus county. There was written across the face of the bill, at the time of signing it, the word dwplioaie. The presentment to the drawees was made on the 14th day of August, when payment was refused, the drawees having failed the preceding day in the afternoon. Motice to the defendant was immediately given. To excuse the late presentment, it was shown that the bill was obtained of the defendant to be remitted to the Exchange Bank of Hartford, Connecticut, in order to pay a note of the plaintiff, which "was held by that hank. The plaintiff resided in Pennsylvania, about twenty-six miles from Olean, and sent an agent to the defendant to procure the bill, who, before sending it to the bank at Hartford, had to procure the. plaintiff’s indorsement upon it. This was done, and it was mailed to Hartford on the 11th of August, which was as early as it could be done after obtaining the indorsement. The fact that it was procured to be remitted to Hartford, and the delay which would be occasioned in getting the plaintiff’s indorsement, were facts known to the defendant when he drew the bill. If it had been sent directly from Olean on the 10th, by the way of Hartford, it could have been presented for payment in Hew York on the 13th. With the necessary delay in obtaining the indorsement, the 14th was the earliest day on which it could be presented if sent by the way of Hartford. The plaintiff’s agent swore that the defendant, when he drew the draft, requested him, the witness, to hold it over one mail; but this was denied by the defendant testifying on his own behalf, and by another witness on their recollection and belief.
    The other facts, upon which the principal question arises, are the following: The plaintiff, desiring to remit funds to Hartford, to pay his note at the Exchange Bank, about the 1st of July, 1857, applied to the defendant and obtained a sight draft on Griggs & Lathrop for the same amount as the one above mentioned, post dated the 10th of July, and sent it to be collected and applied. The plaintiff, as a witness on his own behalf, swore that he sent it to the Exchange Bank for that purpose, and received an answer by-letter that the bank would collect it and apply it to the payment of his note. Subsequently, on the 14th day of July, the plaintiff again wrote to the bank concerning the draft; but this letter was not produced or its contents shown. A letter, in answer, from the cashier of the bank to the plaintiff, of the date of 17th July, was given in evidence, in which surprise was expressed that the plaintiff had not received the draft of defendant in his, the cashier’s, former letter, which the writer said he was confident he had inclosed in it, as he had it before him when he was writing; and he asks the plaintiff if the letter had any appearance of having been opened and sealed up again, and desires him to get a duplicate from the drawer and send it to him; and it was in consequence of this suggestion that the draft sued on was applied for and obtained. There was no claim that the draft first given had ever been presented for payment. The plaintiff swore that it Was not inclosed in the letter which he received from the cashier, and that he had never seen it since he sent it to Hartford, and that his letter to the cashier of the 14th July was written in consequence of not receiving the draft.
    It appeared that the draft sued on was given in consequence of the former one being supposed to be lost. The defendant testified that, he had on two occasions before the draft in suit was drawn offered to give the plaintiff a duplicate on account of the supposed loss. The plaintiff then appeared to think that the bank still had the former draft and that they could present it. The defendant swore that his account with Griggs & Lathrop had been good at all times from the drawing of the first draft, and that when they suspended they owed him over four thousand dollars.
    A witness for the plaintiff, who was his indorser on the note at the Exchange Bank, testified that on the 16th August the defendant told him that he had heard of the failure of Griggs and Lathrop, and that he thought it likely that the plaintiff’s draft would be protested, and if so he would pay it when he came back from Hew York, whither he was then going.
    The court, on the motion of the defendant’s counsel, non-suited the plaintiff, whose counsel insisted upon his right to have the case submitted to the jury. The plaintiff’s counsel thereupon excepted. The appeal here is brought from the judgment of the General Term affirming that rendered upon the nonsuit.

      A. G. Rice, for the appellant.

      E. Peshine Smith, for the respondent.
   Denio, Ch. J.

Assuming the paper upon which the action is brought to be operative as an independent bill, it was presented with legal diligence, and the defendant was duly charged. The omission to forward it on the very day it was received, if that had been essential, was excused by the necessity of procuring the indorsement of the plaintiff, which the defendant knew, when he drew the draft, was requisite to be done. The defendant moreover knew, when he drew it, that it was drawn for the purpose of being remitted to Hartford, and he caünot complain of the delay which that would occasion. Besides, the plaintiff proved by one witness that a delay of one day in forwarding it was requested by the defendant, and though that was contradicted, it presented a question for the jury, if the fact was material. But I do not understand that the plaintiff was obliged to forward it on the very day he received it. If it had been sent the next day, laches would not be imputable to the plaintiff. (Chitty on Bills, 420, Spring, ed., 1839.) The Supreme Court found no difficulty in this part of the case. The opinion declares that the presentment was in season, and, impliedly, that the plaintiff would have been entitled to recover, but for the connection of the bill with the former one drawn in the preceding month.

The nonsuit was sustained on the position that the defendant was entitled to the same defense as though the action had been brought on the first draft. Then, inasmuch as there had been a delay of more than thirty days in presenting that draft, which was not excused, during which time the drawees had failed, the plaintiff, upon familiar principles, had lost his right to resort to the drawer. I do not concur in that view of the case. The draft sued on was given on the assumption by both the parties that' the former one had, before presentment, been lost, so that the plaintiff was unable to avail himself of it to make the remittance for which he obtained it. The plaintiff asserted it by asking for a second bill, and the defendant acquiesced in the truth of the assertion by giving it, as he on two former occasions offered to do, and there was no evidence to raise a doubt upon the fact of such loss, or the slightest proof or presumption that it had been presented and paid. The whole case proceeds upon the concession that it had not been paid. The facts existing and presented to the minds of the parties when the second bill was drawn were these: The defendant had in his hands the plaintiff’s money, which he had paid for the draft obtained in July, and the drawees in Hew York had in their hands the defendant’s money to the requisite amount and more, subject to his orders. Surely the plaintiff was not obliged to lose the money he had thus paid, and the defendant to acquire it on account of the loss of the prior draft. The giving of the July draft was an equitable assignment of so much of the defendant’s money to the plaintiff. It did not, it is true, create a privity of contract between the plaintiff and the drawees, but the draft was a transfer enforceable in equity, in the absence of other remedies for its recovery, and it was a sufficient consideration for the duplicate draft.

The drawees continued, so far as the evidence shows, in good credit, and no reason appears to have existed why the plaintiff was not as willing to trust them during the time it would take to collect another sight draft as he had been in July, when the first draft was given. They had in their hands belonging to the defendant much more than the amount of the draft, which remained with them at the time of their failure. Under these circumstances the defendant gave the plaintiff the draft in suit of precisely the same tenor as the former one, and containing no qualification or limitation in its terms of the rights and obligations of the parties, unless one is to be implied from the similarity of the two bills, and the word duplicate which was written across the face of the last one. The Supreme Court implies from that word, and the identity of the terms of the bills, a very special agreement. They would make the bill effectual as an order for the money, if the drawees would pay it, but a denial of the defendant’s liability as drawees if they should not pay it. It would have been competent, no doubt, for the parties to make such an agreement; but there were no known circumstances suggesting its necessity, and there was certainly no direct evidence that such an agreement was made, and I think none from which it could be implied. The word duplicate had, under the circumstances, very much the same effect as the words of reference inserted, where bills of exchange are drawn in sets. The different parts are precisely alike, and the drawee is requested, in each, to pay the amount mentioned, if the others, which are referred to by their numbers, are unpaid. This is necessary to prevent each part being negotiated and presented and paid as an independent bill. But either one of the separate parts may be used, as a perfect and available bill against the drawers as well as the drawees. In my opinion it is to be intended, as the fact undoubtedly was, that the word duplicate was inserted for the purpose of preventing the payment of 0both bills. It might happen that the first one would be presented and paid before the second one could be presented. It was supposed to be lost; but it was-not proved to have been destroyed; and it was a reasonable and necessary precaution to take, to apprise the drawees, on the face of the second bill, that it was the duplicate of another one, so that they should not pay it if that other one had been presented and paid. The case is not precisely similar I admit, to that of sets of bills, all drawn at the same time, for the first bill in this case contained no reference to any others. It might happen that the first bill had been negotiated and had come into the hands of a bona fide holder, and been withheld from presentment under circumstances which would excuse the delay. In that case if it should be presented and protested after the one marked duplicate had .been paid, the defendant might be made liable as drawer, after his funds had been used to pay the duplicate. The probability of this was very remote. The possibility of its occurrence might have justified the defendant in requiring an indemnity before drawing another bill; but instead of requiring such an indemnity he consented to draw the present bill, embracing in its terms the usual obligations of a drawer, and taking only the precautions, by inserting the word duplicate, to provide that both bills should not be paid by the drawees and be charged to his account. By doing this he impliedly waived other precautions, such as might be suggested by the apprehension of the subsequent presentment and protest of the first bill by a bona fide holder under circumstances which would charge him as a drawer. The theory by which the Supreme Court sustained the nonsuit is abstruse and unnatural. It supposes an arrangement which the circumstances of the case, existing at the time the bill in suit was drawn, did not suggest, and which did not become pertinent or applicable until after the happening of the event, which was unexpected by both parties, the failure of the drawees. What is more important, it supposes a contract which is hostile to the legal effect of the instrument which the defendant signed, and which, as I have just said,, there is no evidence to support. It gives an effect to the word which was inserted to show that another bill of the same purport had been drawn, and, apparently, to prevent the drawees from paying both, which would make the bill an assignment of the fund, with a provision that it should be without recourse to the defendant, though neither of the bills should be paid. Hence, I am in favor of reversing the judgment and ordering a new trial.

I do not perceive that the facts which I have considered sufficient to sustain the action were at all in dispute; and it seems to me, therefore, that if they should appear to be equally certain upon another trial the judge ought to direct a verdict for the plaintiff.

Judgment reversed.


author: Wright, J. Davis, J.

text:
    Jesse W. Benedict v. The Ocean Insurance Company.
    Where there is any repugnancy between the printed and written conditions of a policy of insurance, the written conditions must prevail.
    Where, at the time of insurance, the insurers write across the policy, “privilege - for $4,500 additional insurance,” such indorsement authorizes the insured to effect additional' insurance upon the same property to that amount, without notifying the insurers thereof.
    Such indorsement is a waiver of notice of additional insurance within the amount specified, although the printed part of the policy require notice to be • given of any additional insurance.
    Describing the building as a five story brick building, making no mention of a cellar under it, is not a misdescription, though there be a cellar under the building.
    Appeal from judgment of Hew York Common Pleas. The action was brought by the plaintiff, as assignee of August Janson, to recover the loss by fire of certain property insured by the defendants.
    The policy was dated the 13th Hovember, 1857, and for $70 premium insured Janson against loss or damage by fire to $2,000, $1,800 on his stock as a cabinet maker, and $200 on tools and benches, “ contained in the five story brick building, with tin roof, in the rear of 195 and 197 Christie street, Hew York.” '

    It appeared on the trial before the Hon. Charles P. Daly, in the Hew York Common Pleas, in December, 1858, that on the night of the 21st January, 1858, the property insured was totally destroyed by fire, and that the loss was $9,170.84, of which $7,612.84 was on the stock, and $1,558 on the tools.
    The policy contained this clause specially written upon the face of it, at the time it was issued: “ Privilege for $4,500 additional insurance.” In the same instrument there was a printed provision that in case the insured had already made any other insurance on the property insured, not notified to the defendants, and mentioned in or indorsed on the policy, then this insurance to be void; and if the insured should thereafter make any other insurance, and should not with diligence give notice thereof, and have the same indorsed on the policy, or otherwise acknowledged by the defendants in writing, the policy was to he void.
    Janson procured additional insurance upon the property to the amount of $4,500, viz., $2,000 in the Hamilton Fire Insurance Company; $2,000 in the Hew York and Erie Insurance Company; and $500 in the Tradesmen’s Insurance Company.
    It appeared, also, that the building containing the property insured was five stories high, with a cellar underneath; and that the surveyor of the defendants went through the building making a survey of the same, prior to the policy being issued, and thereupon the defendants furnished the policy.
    The defendants’ counsel offered to show that insurance had been effected by Janson on the property with the Hamilton and Tradesmen’s Insurance Companies to the amount of $2,500, without notice to the defendants of such insurances, which proof was rejected, and the defendants excepted.
    The plaintiff, after proving the assignment to him by Jan-son, on the 8th Hovember, 1858, for the benefit of creditors, of his claim for damages, rested, whereupon the defendants’ counsel moved for a nonsuit on the ground that the building containing the subject matter is not the building mentioned in the policy; that the premises destroyed are shown to have been a building five stories high, with a cellar, in which was a part of the property destroyed.
    The nonsuit was refused, and the defendants excepted.
    Janson then, after testifying to the survey of the premises by the company’s surveyor, continued: “ I paid the premium to Hr. Wilcox, who represented that he was the agent of the company; he said he would, give the company a description of the building, and tell me what they would charge; he first came to me to insure; he gave me the policy after the surveyor examined the building; I paid him $70; first $50, and then $20, when he left the policy.”
    The defendants’ counsel objected, in time, to the acts and declarations of Wilcox; which objection was overruled, and the defendants’ counsel excepted.
    The .jury found a verdict for the plaintiff.

      On appeal to the General Term of the Common Pleas the judgment entered on the verdict was affirmed. The defendants appeal to this court.

      Andrew Boardman, for the plaintiff.

      J. H. Reynolds, for the defendants.
   Wright, J.

The only question in the case of any importance relates to the construction and meaning of the policy. In the "written part of it, and following a statement of the subject and amount of insurance, is this clause: “Privilege for $4,500 additional insurance.” One of the printed clauses is as follows: “ If said assured or his assigns shall hereafter make any other insurance upon the same property, and shall not with all reasonable diligence give notice to this corporation, and have the same indorsed on this instrument, or otherwise acknowledged by them in wilting, this policy shall cease and be of no further effect.” The plaintiff effected additional insurance in other companies to the exact amount of the privilege granted, and, as it was offered to be proved, without giving notice thereof to the defendants.

The defendants claim now that the omission to give notice of the other insurances rendered the policy issued by them void, and it need not be denied that if the provision requiring notice to he given, stood alone and unaffected by any other, that would he the effect. This is not, however, all that is contained in the policy on the subject. Effect must be given to the words, “privilege for $4,500 additional insurance,” written in it; and if there is any repugnancy in the clauses, in construing the instrument, the written should prevail over that which is printed. What then was intended and meant by this writing on the face of the policy \ The defendants insist that it was merely a consent that further insurance to the amount stated might be made, hut notice of it must be given as the policy required; whilst the plaintiff’s position is, that the “ privilege” granted by the defendants to the insured “ for $4,500 additional insurance,” was in effect a waiver of the provision for notice to them. I think the latter is the proper construction. It required no permission or consent of the insurers for the insured to increase his insurance. The right is not derived from the insurer. He had the right without their consent to make other insurance, but by the terms of the policy he must give notice of such further insurance; if, therefore, the “ privilege” granted be not construed as a waiver of notice of such further insurance, it is utterly without force or meaning. This was not the intention. The contracting parties designed that the written stipulation should answer a purpose; and this purpose," I think, was to sanction in advance any insurance Janson might obtain, not exceeding $4,500. The object of the printed provision of the policy requiring notice, is to give the company such information as to enable it to judge whether the insurer is obtaining excessive insurance, in order that it may, in that case, avail itself of its right to give notice to the assured of its intention to terminate the insurance. Additional insurance is a positive benefit to the insurers, unless it be increased to subh an extent as to furnish a motive to defraud on the part of the assured; and the reason for notice of the amount is to enable the insurer to judge whether such amount is increased beyond that point at which he deems it unsafe to remain the insurer. When the defendants wrote on the face of the instrument the words: “ Privilege for $4,500 additional insurance,” it was equivalent to a declaration that they deemed that amount of additional insurance reasonable, and that it was not necessary to inform the insurers of insurance to that amount, as they would not deem it a reason for terminating the insurance, or for any action or objection. By giving the written phrase this meaning, no possible injury can accrue to the defendants. If another object of requiring • notice, besides that stated, be to enable the company to know who was liable to contribute with them, that information is secured in ease of loss by another provision of the policy. The ninth condition provides that in case of loss, the insured shall deliver to the company a particular statement, among other things showing “ whether any and what other insurance has been made on the same property, giving a copy of the written portion of the policy of each company, and what was the whole cash value of the subject insured.”

I cannot but regard this as an attempt on the part of the defendants to escape responsibility, by a construction of their contract which would "render it a mere deception. That which they characterized as a “privilege” they seek to convert into a snare. Expressly sanctioning in advance a further insurance by other companies on the property, to the extent of $4,500, because they were not notified of the sources from which it was obtained, the claim is, that their policy was not in force when the loss occurred. ISTothing but the sternest legal necessity (which, in my judgment, does not exist) should induce such a construction of their contract.

2. There was no force in the reason assigned for nonsuiting the plaintiff, viz., that there was a misdescription of the premises containing the subject insured. The policy described the insured property as being in “ a five story brick building, tin roof, situate in the rear of líos. 195 and 197 Christie street.” On the trial it appeared that the building was five stories high, with a cellar underneath. This was no misdescription; but if it were, the defendants could not raise thé' objection in avoidance of the policy. Their surveyor surveyed, the premises prior to the policy being issued, and they thereupon furnished the policy themselves containing the description objected to.

3. I see no objection to the testimony of the acts and declarations of Wilcox as proved. Whether he was the general agent of the company or not, he certainly acted for it in this particular transaction. All the acts and declarations, to which objection was made, related to this special agency. He came to the plaintiff to get him to insure, representing himself to be the agent of the company. He informed the plaintiff that he would give the company a description of the building, and would tell him what premium they would charge; and after the company’s surveyor had examined the building, he delivered the policy and received the premium of $70. This is all that he said or did, and whether the proof was admissible or otherwise it could not certainly injure the defendants. It was of no sort of importance as affecting any issue in the case.

The judgment of the Common Pleas should be affirmed.

Davis, J.

The policy on which this action is brought describes the insured property in these words:

“$1,800 on stock as a cabinet maker, manufactured and unmanufactured, and in process of manufacture, including, materials for making the same, and $200 on tools and " benches, all contained in the five story brick building, tin roof, situated in the rear of Nos. 195 and 197 Christie street, in this city.”

On the trial it appeared that “ there was a cellar under the whole building,” and that there were some boards, mahogany, chair tops and other materials in the cellar.

It is claimed, first, that the omission to mention the cellar in the description of the building is a misdescription amounting to a breach of warranty; second, that such omission was the concealment of a fact material to the risk and vitiated the policy. The subject matter of the insurance was the stock and other personal property in the building, and mot the building itself. There is no pretense that the property insured was misdescribed.

The locality of the building and the materials of which it was constructed are correctly given, and it is called “ the five story brick building.” I think there was no misdescription. The words “five story brick building” are appropriate to describe such a building whether there be a cellar or not; a cellar is never called a story in common parlance, but a house is spoken of as of one, two or more stories, with reference merely to the number of floors, or spaces between the floors, above the ground. The word “ building ” necessarily embraces the foundation on which it rests; and the cellar, if there be one under the edifice, is also included in the term house or building. To speak of a building as being five stories simply communicates the idea of its height above the ground, and neither asserts nor denies that there is a cellar under it. If there be a cellar the word building includes it unaffected by the idea of its height above the foundation.

The construction claimed by the appellant would vitiate a large proportion of the policies issued throughout the country. It is almost universally the practice to describe the building as by naming its material and number of stories, without allusion to the cellar; and where the policy covers the personal property in a house it is universally described “ as the furniture, provisions,” &c., &c., contained therein; and it has never been held that the property usually kept in cellars was not embraced in such a policy. There is nothing, therefore, in the points of the appellant based on the idea of a misdescription or of a concealment.

The case of Wall v. East River Ins. Co. (3 Seld., 370), was one of warranty of the purposes for which the building was used, which the court held was necessarily implied from the description, and it appearing that the building was also used for other purposes, the breach of warranty was held fatal. In this case there is no pretext for saying that such a question arises.

In the body of the policy, and following the statement of the amount insured and the description of the property, the company inserted in writing these words, “Privilege for $4,500 additional insurance.” The printed portion of the policy contains this provision, “and if said insured or his assigns shall hereafter make any other insurance upon the same property, and shall not, with all reasonable diligence, give notice thereof to this corporation, and have the same indorsed on this instrument, or otherwise acknowledged by them in writing, this policy shall cease and be of no further effect.”

The assured effected subsequent insurance on the property to the amount of $4,500, but no more. Notice was not given to the company, nor were their insurances “ indorsed on the policy or otherwise acknowledged in writing.” It is insisted that the defendants’ policy was- thereby avoided. This question depends altogether upon the effect to be given to the written clause inserted by the company, above quoted. That clause is made a part of the contract, and is to he construed in connection with all its various provisions. Clearly it gives an express assent to further insurance not exceeding the amount mentioned; hut such assent was not necessary to the right to make such further insurance, and the clause is therefore ineffective, unless it operates upon some consequence that would otherwise flow from making the same; or modifies some other provision of the contract itself.

Collating and reading the two clauses, above quoted, together, I think there is little difficulty in giving the construction intended by the parties: “Privilege for $4,500 additional insurance” is given, “and if the insured shall hereafter make any other insurance upon the same property, and shall not with all reasonable diligence give notice thereof,” '&c., this policy shall cease. By force of the written clause, the word “ other ” is enlarged to include the additional insurance for which the privilege is given. So that, in legal effect, the contract reads that if the assured shall make any insurance beyond the amount insured by this policy, for which express consent is hereby given, he shall immediately give notice thereof, and have the same indorsed. In this way full effect is given to every provision of the contract without violence to any; and the question is not one of waiver, but of construction. Ho notice was therefore required by the contract so long as the insured kept within the bounds set for him by the written clause. But if it be said that this construction deprives the company of a notice in which they intended to secure for a purpose essential to their protection, the obvious answer is, that the whole matter was the subject of contract, and it was equally in their power to have stricken out the clause altogether as to have modified it as they did, or to have preserved it in its full vigor. The court is to carry the contract into effect as the parties have seen fit to make it.

The primary object of the clause under consideration was, I think, to guard the company against fraud by over insurance. So far as its intent may also have been to secure to themselves the more effectively the benefit of'a pro rata distribution in case of' loss, that is saved by another provision of the contract, to be found in the 9th condition of insurance, which requires sworn statements of all additional insurances to be served with copies of the written portions of the policies as part of the proofs of loss. Nothing is clearer than that the object of the company, in inserting the privilege for $4,500 additional insurance, was to declare that that sum was not objectionable as an over insurance; and hence, there is no force in the idea that they still meant to require notices of such insurance, to protect themselves from fraud by excéssive insurance.

In Harper v. The Albany Mutual Ins. Co. (17 N. Y., 194), it is said to be “ a well settled point that the written part of a policy shall always prevail over the printed part in cases of repugnancy ” (2 Hall, 622); that “ the substance of the contract is always in the written partand that “nothing but the most stern legal necessity should constrain the court to give it (the policy) a construction which would nullify it and render it a mere deception instead of the protection which the parties to it designed.” (Pratt, J., id., 198.)

I think the construction of the policy in this case demanded by the appellant, would operate to render the contract a mere deception instead of the protection designed. But if the construction of the instrument above indicated be not the true one, in my judgment the court below did not err in giving to it the effect of an express waiver of the requirement of notice and indorsements, or acknowledgment of the additional insurance.

The exception to the decision of the court, overruling the objection to proof of “ the acts and decla/rations ” of Wilcox, is not well founded. The testimony sufficiently showed that Wilcox was the agent of defendant. He applied to Janson to insure, and represented himself to be such agent. He received, in part, the premium in advance, and after the surveyor of defendant had examined the building, he brought the policy to the insured, and then received the residue of the premium. His acts were evidently adopted and acted upon by the company.

If there were any of his declarations which ought not to have been admitted, they were not pointed out by a general objection to all “his acts and declarations.” Hence it was no error to overrule such general objection, because it included acts which were clearly admissible. But I think the declarations proved were properly regarded as part of the res gestee.

The judgment should be affirmed.

All the judges concurring,

Judgment affirmed.