author: JBeax>t, J.:

text:
    CHARLES T. INSLEE, Survivor, etc., Respondent, v. ISAAC HAMPTON, Appellant.

      Practice — - Counter-claim— Separate action brought therefor.

    A party, except in. cases commenced in a Justice’s Court, having a demand against another can maintain an action therefor, although at the time a.n action is pending against him by the same party, wherein he could have set up such demand as a counter-claim.
    Appeal by the defendant from a judgment entered in favor of the plaintiff on a trial at the Circuit, under the direction of the justice.
    The action was commenced by Napoleon 33. Gardner and Charles T. Inslee, as plaintiffs, against Isaac Hampton. Gardner died pending the action, and it was continued in the name of Charles T. Inslee, as survivor of himself and the said Napoleon B. Gardner, and was brought to recover a balance of $367.03 claimed to be due from defendant to plaintiff’s firm on the following facts: In October and November, 1868, the defendant consigned to plaintiff’s firm a quantity of wool and also butter to be sold on commission, and drew against the same on plaintiff’s firm for the sum of $1,850. After-wards plaintiff’s firm sold the property, by the direction and consent of defendant, and after deducting expenses, commissions and advances, the defendant was indebted to plaintiff’s firm for such balance. The venue of this action was laid in the city and county of New York.
    The defendant commenced an action against plaintiff’s firm, laying the venue in Livingston county where he resided, and claiming to recover damages for misconduct and breach of agreement against plaintiff’s firm in reference to the sale of certain wool and butter set forth in the complaint in such action. Such damages were claimed to amount to $1,700.
    The defendants in that action (plaintiff’s firm) answered the complaint, denying the same in toto, and setting up matters of defense merely.
    This last action was referred, on a motion to change place of trial, to Hon. James L. Angle, of Rochester, to try and determine.

      The defendant’s action so referred was tried before said referee first, and on such trial plaintiff’s firm established their defense set np in their answer, and plaintiff ’s complaint therein was dismissed, and judgment on the merits given for plaintiff’s firm, with costs.
    Afterward, and on October 6th, 1874, the issues in this action were tried before Judge DoNohue, whereupon the defendant herein interposed a supplemental answer, setting up said judgment upon the referee’s report in favor of plaintiff’s firm in the action brought by defendant, as a defense to plaintiff’s action in this suit.
    On the trial plaintiff proved all the allegations in the complaint in this action, and that the balance claimed — $367.03, with interest from July 8, 1869, amounting to $136.35, in all amounting to $503.38 — was due and unpaid.
    No objection was taken to any testimony given or offered by plaintiff.
    The defendant then offered in evidence the judgment roll in the suit wherein he was plaintiff, tried before said referee, which was objected to as not being proper evidence in this action, and as immaterial, by plaintiff’s counsel. The court admitted it. The defendant asked the court to direct a verdict for defendant. The court refused. Defendant excepted, and the court directed a verdict for plaintiff, to which defendant excepted.
    From the statement in the appellant’s points, it would appear that the action by Hampton was the first brought. From that of the respondent, that the one by Gardner & Inslee was the first.

      H. B. Selden, for the appellant.

      H. Sheldon, for the respondent.
   JBeax>t, J.:

The defendant herein commenced an action against the firm of Gardner & Inslee, of which the plaintiff Inslee is the survivor, claiming a sum to be due' arising out of shipments of butter and wool to them. They answered, alleging advances upon the property, the sale thereof, and that the proceeds did not amount to enough to pay the advances and expenses. They did not, however, present the excess in their favor either as a set-off or counter-claim: They also commenced this action, which is founded upon the transactions mentioned, claiming the excess referred to, to be due to them. It does not appear which of these actions was first commenced. The referee, in the defendant’s action, reported in favor of the plaintiffs herein, finding, among other things, that Gardner & Inslee duly accounted to and with the defendant for the wool and butter and the proceeds thereof, and all of the same. The defendant herein set up the judgment founded upon these findings of the referee, by supplement to his original answer, in which the pendency of his action was interposed as a defense. There can be no doubt that both actions related to and were predicated of the same transactions. There can be no doubt either that the plaintiff herein and his then existing partner could have litigated the claim herein presented in the defendant’s action, and taken judgment for it, if it were allowed, because it was the subject of a counter-claim. They did not adopt that course, and the question presented on this appeal is, whether or not the claim is barred by the omission to do it. It seems to be settled in this State by authority. A defendant is not bound in his answer to set up a demand which, from its nature, is a proper subject of a counter-claim. He' may elect to enforce its recovery in a separate action. (Halsey et al. v. Carter, 1 Duer, 661.) A party having a demand against another may institute an action thereupon, although at the same time an action is pending, brought against him by his debtor, wherein he might set up his demand as a counter-claim. (Lignot et al. v. Redding, 4 E. D. Smith, 285.) Justice Imgbaham: “We do not think a party having a claim against another is bound to await the tedious motion of such debtor, if he sees fit to commence a suit and then delay its progress so as to prevent the real creditor from obtaining what is due to him.” There is nothing in the Code (§§ 149,150) requiring the defendant to avail himself of his counter-claim or be precluded from maintaining an action. The preclusion must be confined to the cases specified in the Devised Statutes. (2 R. S., 236, § 57.) Welch v. Hazleton (14 How. Pr., 97) and these cases, are those commenced in Justices’ Courts: Douglas v. Hoag (1 Johns, 283, per Spencer, J.); Lord v. Ostrander (43 Barb., 339). The cases of Halsey v. Carter and Welch v. Hazleton (supra), are approved in Gillespie v. Torrance (25 N. Y., 310). It is not necessary to consider what would be the legal result if the plaintiff and his partner,had pleaded their counter-claim in the defendants’ action, because it was not done. They answered by denying the defendants’ cause of action and succeeded. For these reasons the judgment •must be affirmed, with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Beady, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. WILLIAM C. KINGSLEY and others, Respondents. THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. WILLIAM A. FOWLER and others, Respondents.

      Acts done nvriwte officii — Yerme —change of — when right to, absolute and not disoi'etioncvry.

    An action against a public officer for acts done rirtute officii must be brought, so far as he is concerned, in the county where the. cause of action, or some part thereof, arose. It is an absolute right, and not a matter of judicial discretion, and he cannot be deprived of this statutory right by joining other parties as defendants.
    The venue must first be correctly laid, and then the usual incidents of an action may occurand a motion maybe made, after issue joined, to change the place of trial, on the ground of the impossibility of obtaining an impartial trial in the county designated; but this ground is no answer to a motion before issue joined to change the venue, where the proper county has not been designated in the complaint.
    Appeals from orders made at Special Term, changing the place of trial.
    The actions were both brought in the city and county of .New York (in both the defendants were, some of them, public officers in the county of Kings, and the others certain contractors for what is known as the Hempstead reservoir), to recover from them certain moneys, alleged to have been obtained by such contractors by the corrupt collusion and confederation of such officers, with the said contractors.

      The following is the opinion of Barrett, J., referred to in the opinion of Brady, J., below :
    Barrett, J. 1. The question is not whether the defendants Fowler, Lowber and Bliss were public officers within the meaning of the Constitution, but whether they were such as are contemplated by section 124 of the Code. That they were public officers in the latter sense there can be no doubt. Their duties were essentially public, and they were even required by law to take an oath of office, and to furnish bonds for the faithful performance of their duties, as permanent water and sewerage commissioners. (Laws of 1869, chap. 97, § 2.)
    2. The acts complained of were clearly done by these defendants in virtue of their offices. It was wholly from such offices that they derived the authority to do what is charged against them — and that is the test. It is not a question of good or bad faith, and the proposition that the statute covers cases of neglect or inefficiency alone, is not sustained either upon principle or authority. On the contrary, it-is well settled that even where, in doing an act within the limits or scope of his authority, the officer exercises such authority improperly or abuses the confidence which the law reposes in him, he is still entitled to the protection of the statute. (Brown v. Smith, 24 Barb., 419; The People v. Hayes, 7 How., 248; Seely v. Bvrdsall, 15 Johns., 268; The People v. Tweed, 13 Abb. [N. S.], 419, which is directly in point, and is decisive of this motion.) Even allegations of malice and “ wicked combination ” will not deprive a public officer of the protection of such statutes. (Bow v. Sherwood, 6 Johns., 109.) And upon principle this is the just rule, for otherwise the statute would always be evaded by a mere averment of bad faith, e. g., that a sheriff levied on A.’s goods under execution against B., and did it in bad faith, well knowing them to be A.’s goods.
    3. In one of the cases under consideration, the cause of action arose in Kings county; in the other, some part thereof, indeed the substantial part thereof, arose there.
    4. The defendants cannot be deprived of their statutory right by joining other parties as defendants. The right is absolute, and not a matter of judicial discretion. If, therefore, a public officer be impleaded for acts done virtute officii, the suit — so far as he is. concerned — must be tried in the county where the cause of action, or some part thereof, arose. Any other rule would tend to nullify the statute ; for it would be as easy to join other parties defendant as to plead bad faith, and that, too, without intending to evade; as,, for instance, to join with a sheriff defendant, the plaintiffs in the execution, who directed, or the indemnitors, who upheld the levy.
    5. Lastly, we are asked to retain these cases, because it is claimed that a fair jury trial cannot be had in Kings county. But that is no answer to the motion. Issue has not been joined, and we cannot tell whether there will be a jury trial. For aught we know, the defendants may demur. The first thing to be done is to place the causes in the county where, by law, the defendants have a right to have them. When an issue of fact is there joined, it wfill be time enough to invoke subdivision 2 of section 126 of the Code. Mason v. Brown (6 How., 481), is not in point, for the reason that issue had there been joined ; but it is an authority for the rule that motions to change the place of trial for the convenience o.f witnesses can only be made after issue joined. The same principle applies to motions to change the venue, because there is reason to believe that an impartial trial cannot be had. The motion to change the place of trial to the county of Kings must be granted.

      John JE. Parsons, for the appellant.

      Roger A. Pryor, for the respondents.
   Beady, J.:

It is necessary to add but little to the opinion of Justice Barrett, rendered by him on deciding the motion to change the venue in these cases. Although acts of fraudulent combination are charged against the defendants to accomplish a condition of things leading to the formation of the contract ultimately made with Kingsley and Keeney, nevertheless the gravamen of the complaint begins with the conduct of the defendants while acting officially, because prior to that time the alleged scheme had not been consummated, and could not be without the contract which was made. The same observation applies to the Hempstead reservoir.

The contemplated fraud in reference thereto was not initiated' until Keeny obtained the contract alleged. It is, it may be said, wholly immaterial whether these contracts were the result of a combination antecedent to the passage of the acts of May 5, 1870, and February 18, 1871, and the action of the common council, or subsequent thereto, if characterized properly.

The defendants’ responsibility for that violation of duty would be the same. The acts which form the basis of the charges presented by the complaint were committed virtute officii.

The defendants were acting as public officers within their official sphere) within the scope of their authority, when the contracts were made, and this, as shown by Justice Barrett, secures to them the right given by section 124 of the Code. It is no answer to an application for the privilege accorded by this law, that the plaintiffs cannot have a fair trial in Kings county. This view, which is expressed by Justice Barrett, is sustained by the authorities. (Moore v. Gardner, 5 How. Pr., 243; Wood v. Hollister, 3 Abb. Pr., 16, note; Hubbard v. National, etc., 11 How. Pr., 149 ; The International, etc., v. Sweetland, 14 Abb. Pr., 240; People v. Tweed, 13 Abb. [N. S.], 426.) Where the impossibility of obtaining an impartial trial is the ground of a motion to change the place of trial, it should not be made till after issue joined. (2 Wait’s Pr., 630, and cases cited.) The reason of the rule relates, it is true, more to the form, perhaps, than the substance. It is that the action must be placed first in the proper county.

The starting point must, in other words, be correctly designated, and then the usual incidents of an action may occur.

When the cause is transferred to Kings county, therefore, the plaintiffs may then in turn ask for a change of the place of trial to some other county, in which there will be no prejudice from which they can suffer. The cause must be at issue then, however, which is not the case now, and the character of the issiies may require serious considerations in determining the propriety of another change of the place of trial. For these reasons, we think the order appealed from must be affirmed, with ten dollars costs, and the disbursements of the appeal.

Davis, P. J., and DaNiels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Beady, J. :

text:
    MINNIE HAUCK, Appellant, v. SAMUEL CRAIGHEAD and others, Executors, etc., of SAMUEL N. PIKE, Impleaded with LAFAYETTE HARRISON, Respondent.

      Signature — on margin — disputed effect of — liability thereon to be submitted on proof to the jury.

    P., not mentioned in the body, signed Ms name upon the margin of an agreement, executed at its foot by H. Held, that such signature did not express what participation in the obligation P. meant to take, whether as surety, guarantee or original contractor, but it might, perhaps, with propriety be said, that it was evident from his in no way expressing any other obligation or intention, that he intended to bind himself as a joint contractor.
    Where the complaint was originally in form on guarantee, but an amendment allowed on the trial charged P. as an original joint contractor, rendering it necessary for the plaintiff to establish by competent proof that such was his relation, because his signature was by indorsement and not by subscription to any expressed obligation of any kind,- and evidence having been given to show why P. signed the paper where he did, and in that way to show what he meant to assume, or what, in other words, was his relation to the contract, held, error, to decide that the action turned upon a question of law and to dismiss the complaint as to P. on the ground of misjoinder, holding the contract to have been made by P. as guarantor.
    That the plaintiff was entitled to have the issue whether or not P. was a joint contractor with H., created by the amendment allowed upon the trial, passed upon by the jury.
    Appeal from a judgment at the Circuit, dismissing the plaintiff’s complaint.
    The action was commenced by the present plaintiff by her guardian; but since that time, she having arrived at majority, it has been continued in her own name. Samuel N. Pike, one of the original defendants, died since its commencement, and his executors have been substituted in his stead.
    Its object was to enforce the liability of the original defendants, Harrison and Pike, on a contract purporting on its face to be made between the plaintiff and the defendant Harrison only, but upon the margin of which Pike affixed his name. The following is a copy thereof:
    “ Copy contract.
    “Memorandum of an agreement made this day, February 18, 1868, between Lafayette Harrison and Miss Minnie Hauck, as follows:
    “Miss Minnie Iiauck engages berself as prima donna asoleta, for operas and concerts, for the term of two months, from the 24th of February, 1868.
    “ Miss Minnie Hauck obliges herself to conform to all the rules and regulations of the theater.
    “ Mr. Harrison obliges himself to pay Miss Minnie Hauck the sum of $1,400 per month.
    “L. F. HAREIS ON.
    “ It is also understood and agreed that Miss Hauck shall sing at least three (3) times in each week, all extra performances to ^ be paid at the rate of one hundred dollars ($100) per perform-anee.
    S “ It is also agreed that the salary shall be paid in each and m every week.”
    The complaint originally alleged that the said Pike “ indorsed ” the contract and became responsible for the performance of the same by the said Harrison.
    The case first came on to be heard, October 24,’ 1874, before Justice DoNOhue and a jury, and upon an inspection of the complaint and the contract, the justice thought the complaint alleged a guarantee which was unsustained by the contract.
    Plaintiff’s counsel thereupon moved for leave to amend the complaint, and the justice allowed him to withdraw a juror with leave to apply at Chambers for such amendment.
    A motion was made at Chambers for leave to amend, it was denied, and an appeal was taken, and the General Term held that the amendment should have been allowed.
    The case then came on for trial again before Justice LawbeNCE and a jury. The complaint was amended at the trial by the justice, so as to allege a joint contract, but the justice held that Pike was a guarantor, and that being so there was an improper joinder, and he therefore dismissed the complaint as against the executors of Pike.

      George V. JSF. Baldwin, for the appellant.

      Fransioli, Tilney c& Mosher, for the respondents.
   Beady, J. :

This action against the executors of S. N. Pike was, in form, on his guarantee for the performance of the agreement on the part of the defendant L. F. Harrison, which the latter made with the plaintiff.

The amendment which was allowed at the trial changed the cause of action, and charged the decedent, Pike, as an original contractor or promissor, and rendered it neoessary for the plaintiff to establish, by competent proof, that such was his relation to her. It was so, because the signature of Pike was by indorsement, and not by subscription to any expressed obligation of any kind.

The defendant has not appealed from that proceeding, and it stands intact to be considered as part of the case, with all the benefit to the plaintiff to be derived therefrom because the defendant succeeded. The plaintiff, after the amendment, proved by parol, under objection and exception, what occurred prior to the execution of the agreement between her agent and Mr. Pike, and it appeared that the plaintiff refused to make the contract with the defendant Harrison alone, and said, through her agent, that if Mr. Pike would not join in the contract none would be made. Mr. Pike then said he would accede to her wishes, and signed his name by writing it upon the margin of the agreement. The indorsement or signing by Mr. Pike upon the margin of the agreement does not express what participation in the obligation of Harrison he meant to take, whether as surety, guarantor or original contractor.

The evidence thus given was not to vary or contradict the agreement, but to show why it was that he signed the paper where he did, and in that way to show what he meant to assume ; what, in other words, was his relation to the contract. If he had subscribed the agreement, there is no doubt on adjudged cases (Parkes v. Brinkerhoff, 2 Hill, 663; Baker v. Robbins, 2 Denio, 136), that he would be liable as originally and jointly bound. The name being at the foot of the agreement would leave no doubt of it. In the former case, Justice CoweN said : “If it were ambiguous, it is by no means clear that it might not be made available by extrinsic evidence.” In the latter case, which was an agreement’ in reference to shingles, Chief Justice BroNSON said: “In the body of the instrument Clark alone is mentioned as the contracting party, but it is evident from the names subscribed to it, without resorting to the extrinsic evidence, that Iinrd also intended to bind himself as a joint contractor with Clark, and the intention of the parties, when it can be gathered from the writing and is not contrary to law, must be carried into effect.”

It might, perhaps with propriety, be said, that it is evident from the paper itself that the decedent, Pike, intended to bind himself as a joint contractor because he signed the agreement, and in no way expressed any other obligation or intention.

The cases cited, it must be conceded, are not entirely like this, but the difference consists only in the position of the signature, and this seems too unimportant to change the principles announced. It may be said that, strictly, the only parallel for this case is, where a person writes his name on the back of a note not negotiable, the legal consequence of which is that he may be held as maker or guarantor. (Richards v. Waring, 1 Keyes, 576 ; Moore v. Cross, 19 N. Y., 227.)

Here, unless some interpretation is given to the signature of Mr. Pike, he assumed no liability, because there was, as already said, nothing written over it.

If the plaintiff had the power to overwrite the name of Pike with a contract implied by law, or recover against him as an original contractor or guarantor, then the amendment was unobjectionable, because it only expressed his obligation, and parol evidence to sustain it, could not affect the interests of his estate, while it sustained the legal result predicated of his signature in the place mentioned. There is no distinction between a note and an agreement recognized. In the cases in 2 Hill and 2 Denio (supra), the rule was applied to both. They rest on the same principles, and should be governed by the same rule.

It is quite clear that the decedent meant to be bound in relation to Harrison’s contract, and if the plaintiff could regard him as an original contractor or guarantor, the view of the learned justice at the trial was erroneous, and a new trial should be granted.

The decision heretofore rendered in this case on the appeal in reference to a contemplated amendment does not affect the question under discussion.

It was only intended by that decision to pass upon the propriety of the order appealed from. It was not designed to limit the plaintiff’s cause of action or remedy to what was then revealed.

The plaintiff was entitled to have the issue passed upon created by the amendment allowed upon the trial, namely, whether or not the defendants’ testator was a joint contractor with Harrison, and there must therefore be a new trial, costs to abide event.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed and new trial ordered, with costs to abide event.


author: Heady, J.:

text:
    DAVID STEWART, Plaintiff, v. HERMAN D. ALDRICH, Defendant.

      Pw'ty wall — covenant by grantee to assume agreement as to — similar!' in principle to assumption of mortgage.

    Where a deed was executed and delivered, conveying premises subject to a party wall agreement, made between the grantor and the owner of adjoining premises:

      Held, that the burden was, by express covenant, transferred to the grantee, and he assumed it, and the covenant to pay for the party wall, when used, became united with, and formed part of the consideration for which the land was parted with. That there was no difference between a covenant to assume an obligation of a party wall agreement, and one assuming the payment of a mortgage.
    Submission of ease under section 372 of the Code.
    The plaintiff, Stewart, owned lot No. 60é, and one John N. Hayward owned lot No. 602, on Broadway, and the lots adjoined. In June, 1853, Hayward and Stewart, when Stewart was about to rebuild, made a contract that the new wall should be a party wall between said lots. Stewart was to build the new wall on the dividing line, one-half to be on the land of each party; the foundation to be at least twenty-four inches thick at base, etc.
    Hayward, “ his heirs and assigns,” were to be “ at liberty at any time to use said wall, or a part thereof, upon paying to the party of the first part (Stewart), a moiety or half part of the then value of said wall, or of the part so used, and not otherwise.” Stewart built the wall at his own expense, according to the contract, in 1853.
    The contract was duly acknowledged by both, and recorded September 20, 1853, in book 648 of conveyances, page 349.
    In 1851, Hayward sold to the defendant, Aldrich, with full covenants of warranty and in fee, and the deed was delivered and recorded. . The deed contained this clause, “ subject, nevertheless, to a party wall agreement made between the said John N. Hayward and the owners of the building on the lot No. 604 (six hundred and four) Broadway, next adjoining to the north of the premises above described, which party wall agreement, the party of the second part hereto, hereby agrees to assume.”
    The defendant, as owner under said deed, took possession of and used a portion of said party wall, of the agreed value of $1,955, of which one-half, viz., $977.50, had been demanded of the defendant by the plaintiff, as due under said contract and deed ; and, though admitting such use, and that he still owned such lot, the defendant refused to pay, and insisted he was not liable.

      JD. B. Eaton, for the plaintiff.

      Edwm S. Babcoclc, for the defendant.

       See McDonnell v. Culver, ante, p. 155

   Heady, J.:

The deed by which Hayward conveyed the premises to the defendant, subjected the estate created to the party wall agreement made between him and the plaintiff, and the defendant agreed to assume it, that is to say, he agreed when he used the party wall to pay for it, just as his grantor had agreed to do by the agreement mentioned. Whatever may have been the result of wandering into the region of learned speculation” to which the counsel for the defendant refers in his points, the legal proposition stated is one which must at once strike the untutored and should find a warm embrace in the learned mind. The defendant’s grantor acknowledged and respected his own obligation and when he conveyed the property, did so with that obligation as a burden upon it. The duty thus imposed upon the defendant was a part of the consideration for the purchase, just as much so as the assumption of a mortgage executed by the grantor would have been. The grantor was equally bound to discharge it. He could not avoid the covenant. If he had used the wall he would be required to pay the sum agreed upon. (Brown v. Puntz, 11 N. Y. Legal Obs., 24; Sherred v. Cisco, 4. Sand. S. C., 480.) The case of Cole v. Hughes (54 N. Y., 444) is not at all in conflict with this view.

There was nothing more than constructive notice of the party wall agreement charged against Hughes, no assumption of any agreement in relation to it, or any express or implied obligation to be bound by it.

The court said in that case, however, there is a wide difference between the transfer of the burden of a covenant running with the land and of the benefit of the covenant, or, in other words, of the liability to fulfill the covenant and of the right to exact its fulfillment. The benefit will pass with the land to which it is incident, but the burden or liability will be confined to the original cove-nantor, unless the relation of privity of estate or tenure exists, or is created, between the covenantor and covenantee at the time when the covenant is made.”

When the deed was executed the burden was by express covenant transferred to the defendant, and he assumed it. The covenant to 'pay for the party wall when used, became united with and formed a part of the consideration for which the land was parted with between the defendant and his grantor, and this, as already suggested, makes the defendant liable. Hurd v. Curtis (19 Pick., 459); Sherred v. Cisco (supra,) do not reject, but recognize this principle, and it would be a very extraordinary departure from familiar and established rules, if they did not. There is no difference between a covenant to assume the obligations of the party wall agreement and one assuming the payment of a mortgage. The discussion of a question so simple in its legal and equitable aspects seems to be unnecessary.

The plaintiff should have judgment for the amount agreed upon.

Davis, P. J., and DaNiels, J., concurred.

Judgment ordered for plaintiff for amount agreed upon.


author: Bbady, J.;

text:
    NORMAN HUBBARD and GEORGE WHITTAKER, Plaintiffs, v. JAMES O’BRIEN, Sheriff of the City and County of New York, Defendant.

      Acceptance — what sufficient to vest title■ — Goods manufactn/red, to order — payment of price often' seeing them, and, dwection to ship — tn'ansfens title.

    ExoeptioNS ordered to be heard, in the first instance, at General Term, on a judgment directed for the defendant at the Circuit.
    The suit was brought by the plaintiffs to recover possession of an iron rod seized by the defendant under an attachment against one George E. Reynolds, of Bristol, Pennsylvania. The plaintiffs are machinists; and, having to build a large engine, entered into an agreement with Reynolds, whereby he was to manufacture for them certain heavy parts of the engine, including the rod seized. Soifie of the articles were delivered; and on the 16th day of December, 1868, before the delivery of the rod seized, Reynolds came to the plaintiffs, stated that the rod was finished, and was at the shop of Neafie & Levy, in Philadelphia; that said firm had done the finishing of the rod, and would not deliver it till their claim upon it for their work was paid, and that he wanted the money. To this the plaintiffs finally assented, giving Reynolds their note for the whole price of the rod, which was paid by them February 27, 1869, and Reynolds at the same time giving the plaintiffs the bill for the rod, and giving tnem a receipt for the same in their receipt book. The rod still not coming forward, the plaintiffs went to Neafie & Levy, at Philadelphia, and saw the rod there finished and ready for delivery. But Neafie & Levy refused to deliver the rod to plaintiffs, claiming that Reynolds had not paid their lien upon it. The plaintiffs, to obtain possession of the rod, paid Neafie & Levy their claim, and the latter, in accordance with plaintiffs’ instruction, shipped the rod to plaintiffs, at New York, giving plaintiffs the bill of lading for the same. On the arrival of the rod at pier No. 2, New York, the same was seized by the sheriff under an attachment against Reynolds. The court directed a verdict for the defendant, on the ground that the title to the rod had never passed to the plaintiffs. The plaintiffs requested the court to direct a verdict for the plaintiffs, which the court refused ; and also asked to go to the jury on the question, whether the transactions of December sixteenth were a sale, which was also refused. To the court’s direction and its refusals plaintiffs excepted.
    The court at General Term say: “ It appears from this statement that the rod was seen by the plaintiffs in Philadelphia, and by their direction sent to them after the payment by them of the lien of Neafie & Levy. This was the acceptance of the rod, and an exercise of ownership over it. They had already given their note for the price of it to Reynolds under his promise to pay Neafie & Levy and to send it on to them. Whatever right they might have had to reject it was waived when they paid the lien of these workmen, and directed it to be shipped to them. When an article is manufactured, it is true that the title does not vest in the person for whom it is made until it is finished and delivered, or ready for delivery, and approved by him. (Andrews v. Durant, 11 N. Y., 35, per Deitio, J.; Williams v. Jackman, 16 Gray [82 Mass.], 517.)
    If the title to the article ve&ced absolutely in the person ordering it, it would necessarily follow that he must accept it, and he would thus be deprived of the right to say that it was not completed, or not made in accordance with the contract relating to' it, and also of the right of refusing, therefore, to accept it. If, however, the article being finished, he accept it and pay for it, and direct its tans-portation to him, there can be no doubt that the title passes at once. (Cases supra.) The doctrine of acceptance and approval is chiefly necessary for the protection of persons ordering the manufactured article.
    The presumption must be that the manufacturer is content to deliver, and when the minds meet by completion and acceptance or approval, and the price is paid in any manner agreed upon, the title passes and the property is at the risk of the vendee, unless there be something special intervening to prevent the application of the rule as to risk. The risk follows the title. It is not thought requisite to enter into any elaborate discussion of this subject. The cases supra, and those hereafter cited, make the conclusion on which this opinion is based unassailable.' (Terry v. Wheeler, 25 N. Y., 522; Russell v. Ga/rrington, 42 id., 119; Gross v. O' Donnell, 44 id., 661; Brewer v. Salisbury, 9 Barb., 512.) The position of the defendant rests on the assumption that the agreement was not ended or completed, or the property vested either because the rod was not finished or accepted or delivered; and if the facts warranted this attitude, it might be troublesome, if not impossible, to disturb the judgment. In this he is in error.
    The rod was finished. It was accepted, paid for, and delivered. The delivery to the carrier, in accordance with the plaintiffs’ instructions, was a delivery to them. They had the right to direct the transportation of the rod, because they had paid for it, and by discharging the lien of Neafie & Levy they had removed the only obstacle to their complete possession and ownership. This case differs,-therefore, widely from that class of cases which hold that goods ordered to be made, do not become the' property of the person directing their manufacture until they are completed and accepted and delivered. For these reasons there should be a new trial.
    Ordered accordingly, with costs to abide event.”

      E. M. Guillen, for the plaintiffs. A. J. Yanderpoel, for the defendant.
   Opinion by

Bbady, J.;

Davis, P. J., and Daotels, J., concurred.

New trial ordered, costs to abide event.


author: Beady, J.;

text:
    THE NEW YORK BALANCE DOCK COMPANY, Respondent, v. THE MAYOR, Etc., OF NEW YORK, and THE DEPARTMENT OF PUBLIC CHARITIES AND CORRECTION, Appellants.

      Department of public charities and correction, New York — cam, neither sue nor be sued.

    Appeal from a judgment entered at Special Term in favor of the plaintiff against the defendants.
    The plaintiff seeks to recover in this action a balance due for work done upon the school-ship Mercury. The bill for the whole service has never been disputed. It was duly certified to the comptroller for payment by the commissioners of charities and correction, by whom the plaintiff was employed, and a bill or requisition for its amount was presented to him on the 24th of May, 1873, at which time the amount to the credit of the department of the commissioners named was more than sufficient to pay it.
    On the 18th of March, 1875, there was an unexpended balance of the appropriations for 1873, amounting to the sum of $1,392.47, which was paid on account of the plaintiff’s claim, which was thus acknowledged to be correct.
    The court at General Term say: “ With this array of fact, it seems strange that the interposition of any defense should have been considered necessary. The proposition that the appropriation was exhausted when this action was commenced, is hardly worthy of serious consideration in face of the fact, that when the plaintiff’s claim, justly due, was presented for payment, and when it should have been paid, as this action demonstrates, there was an excess of funds belonging to the appropriation over and above its amount.

      “ It then became the duty of the comptroller, at once, to set aside the amount necessary to meet it, if, for any just reason, its payment was to be deferred, for the requisition mentioned was an equitable assignment pro tanto of the funds of the department of which he was the depositary. (Hall v. City of Buffalo, 1 Keyes, 193; Parker v. Oity of Syracuse, 31 N. Y., 379.) This defense fails utterly. There is, however, substance in the proposition that the commissioners of charities and correction should not have been joined in this action, and that judgment should have been in their favor.
    “ They constitute only a branch of the city government, a part of the municipality appointed by its officers, with some independent powers, but nevertheless in the main, subservient to and under the supervision and control of the general government. They have no corporate rights. They can neither sue nor be sued. They form a department merely as suggested, for the expense of which the city government provides, but they make no payments other than by requisition or drafts upon the sums appropriated to their use, and held for them by the defendants, The Mayor, etc., which are to be honored by the comptroller in the manner prescribed by law. (Chap. 510, Laws of 1860; chap. 335 [Charter], Laws of 1873, §§ 25, 26, 27, 28, 29, 90, 91, 112.)
    “ The independent powers exercised are conferred to enable the municipality more perfectly to discharge its varied and important duties, and to that end the commissioners are required to make proper estimates of the money needed, and in the several matters pertaining to their domain to do what is authorized, drawing upon the fiscal officer of the corporation to the extent only in the aggregate of the sums appropriated for their use, being thus restricted in expenditure to prevent useless or extravagant outlays.
    “ When, therefore, the requisition was made for the plaintiff, or the bill certified to be correct by the commissioners in the usual manner, they did all that they could be called upon to do for the plaintiff, and no action or proceeding was necessary or proper against them.
    “ The duty was then cast upon the finance department to examine and pay the bill, or to resist its payment, if there existed any good reason why it should not be paid. If no such reason existed, it should have been paid.
    “ The result of these views is, however, that the judgment must be reversed as to the commissioners, and affirmed as to the defendants The Mayor, etc.”

      Wm. G. Whitney, for the appellants. B. W. De Forrest, for the respondent.
   Opinion by

Beady, J.;

Davis, P. J., and DaNiels, J., concurred in result.

Judgment reversed as to commissioners and affirmed as to The Mayor, etc.


text:
    THE MERCHANTS’ BANK OF CANADA, Respondent, v. THE UNION RAILROAD AND TRANSPORTATION COMPANY, Impleaded with THE PACIFIC MAIL STEAMSHIP COMPANY, Appellant.

      Severed bills of lading — Delivery of goods — the holder of which bill entitled to.

    Appeal by the defendant from a judgment entered upon a verdict in favor of the plaintiff, by direction of the court.
    In February, 1813, the firm of Ritchie, Gregg, Gillespie & Co., merchants, of Montreal, applied by letter to the plaintiff, a banking institution of the same city, for a credit of £10,000 sterling, in favor of their agents, Charles Thorel & Co., at Yokohama. Such credit was to be availed of by the latter by their drafts upon the London agents of the plaintiff, the London Joint-stock Bank, the plaintiff having arranged that the latter should accept such drafts on the hypothecation by the drawers (Thorel & Co.) of the teas purchased by them in Yokohama for Ritchie, Gregg, Gillespie & Co.
    Six hundred and seventy-six packages of tea were shipped to New York by Thorel & Co., deliverable to order of shipper, as per bill of lading. The plaintiff’s manager testified that the plaintiff procured and made an advance upon the 676 packages of tea mentioned in the bill of lading; that the plaintiff received the bill of lading, invoice and consular certificate from the London Joint-stock Bank, in order that the plaintiff might collect or realize the amount of the invoice, and therewith retire or pay the draft of the shipper, for the payment of which the plaintiff held the bill of lading. He also testified that the plaintiff paid the amount of the draft to the London Joint-stock Bank, retaining the bill as its security for the amount. The bill of lading, however, contained a statement that the agent of the steamer had signed, five bills of lading all of the same tenor and date, one whereof being accomplished, the others were to stand void. Shortly after their arrival in New York by the defendant’s conveyance, the defendant delivered the teas to Thomas Rigney & Co., who had one of the bills of lading, upon receiving the written guarantee of that firm, indorsed on their bill of lading, that they would deliver to defendant “ the regular hill of lading, indorsed for the within teas, so soon as the same reached us.”
    The court at General Term say: “ It is assumed that the title to the teas was in Charles Thorel & Co., and that the mere possession of the unindorsed bill of lading by the plaintiff was not sufficient evidence of the transfer. The point thus taken is ingeniously put and argued, but the authorities do not sanction it. The rule is settled in this State, that the transfer of a bill of lading without indorsement is a symbolical delivery of the goods; that the property in it may be conveyed by such delivery, and be good against all the world except an innocent indorser for a valuable consideration. (Natha/n, v. Giles, 5 Taunt., 558; Bank of Rochester v. Jones, 4 N. Y., 497; Cayuga Go. Rat. Bank v. Daniels, 47 id., 631; Marine Bank v. Wright, 48 id., 1; First Nat. Bank of Cincinnati v. Kelly, 57 id., 34; Allen v. Williams, 12 Pick., 302.) It is true that the delivery of the bill must be with intent to pass the title, and that there must be some evidence to sustain that element. The arrangement made with the plaintiff in reference to the advances, provided for the delivery of the bill of lading as a security therefor, and their possession of it, after the advances, and of the invoice and consular certificate, which they also had, made it presumptive evidence that it was delivered for the purpose contemplated. There is no evidence to the contrary. * * *

      “ The defendants were acting, therefore, with full knowledge and under guarantee. They cannot cut off the plaintiffs, who are bona fide holders for value, without notice. The defendants’ counsel referred to the case of Fea/rn v. Bowers (cited in Bickbarrow v. Mason, 1 Sm. L. 0. [7 Am. ed;], 1162), and to The Tigress (Brown & Lush, 43), to sustain the proposition that, where there are several bills of lading, although the title to the property described goes to the first person to whom one of them is transferred for value, the master is justified in delivering the goods to the holder of the first bill presented.
    “ The decision in Fearn v. Bowers, it will be found, is predicated of a usage of trade, which sanctioned the delivery of the goods to any one of several holders that the captain thought proper to select. He was not bound, it was said, to look into the invoice or to consider the merits of different claimants. But that case stands alone, and its doctrine, resting upon usage, is clearly an exception to the general rule governing the relations of the bona fide holder of the bill to the carrier. The question was not involved in the case of The Tigress, but, so far as it is affirmatory of the case of Fearn v. Bowers, it rests upon the usage mentioned, to which allusion is made in the case. Here there was no proof of usage, and no offer to prove it.

      “ It is evident, indeed', that the defendants suspected the right of Thomas Rigney & Co. to receive the property, because they delivered it only upon a guarantee that that firm would give the regular bill of lading, by which was meant the bill only which was entitled to be honored. They took the risk of delivery, and must take the consequences. The cases are not parallel, therefore.”

      Ashbel Green, for the appellant. A. A. Bedfield, for the respondent.
   Opinion by

Beady, J.;

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


text:
    FRANCIS H. RUHE, Appellant, v. NATHANIEL B. LAW, Individually and as Executor, etc., Respondent.

      Resale of property — “difference and costs a/nd expenses on the resale'" — subsequent taxes included within — Boundaries control courses.

    ■ Appeal from a judgment rendered at Special Term in favor of the defendant, for a counter-claim.
    The plaintiff purchased certain real estate at a sain ordered by the surrogate of Kings county, and having refused to complete, brought this action to recover the ten per cent paid at the time of the purchase. The objections to the title having been overruled, and the terms of sale having provided for a resale and for the plaintiff’s liability in case of a deficiency, and the second sale not having realized as much as the first, the plaintiff was charged with the deficiency and the taxes, which had ad interim been imposed upon the property.
    The court at General Term say: “ The chief objection was the use of the word easterly in the description of the property, but the monuments or fixed boundary (Fulton street), mentioned, showed plainly that the word “ westerly ” was intended and was in accord with the diagram which formed part of the description. Known and fixed boundaries control courses and distances. (Gerard on Titles, 175, and cases cited.) * * '* He complains that the sum of $526.25, paid for taxes, imposed subsequent to his refusal to complete and before the second sale, are not within the letter or spirit of the contract, which threw upon him the ‘difference and costs and expenses on the resale,’ but in this he is mistaken. The resale was not delayed and the additional taxes were legitimately a part of the difference in the sum realized. The necessity of their payment was occasioned by his refusal to complete the sale. If he had taken the property the defendant would not have been obliged to pay them under any circumstances. * * * discover no reason why the judgment should be disturbed and it must be affirmed, with costs.”

      O. c& W. D. Lawton, for the appellant. Rioha/rd H. Huntley, for the respondent.
   Opinion by

Beady, J.;

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


text:
    HENRY HERRMAN and ISAAC HERRMAN, Respondents, v. WILLIAM R. GILBERT and STEPHEN J. WEAVER, Impleaded with JOHN T. STEWART, Appellants.

      Attachment — Bmure — what acts of plaintiff, a ratification of.

    Appeal from a judgment, entered on the verdict of a jury in favor of the plaintiffs, and from an order denying a new trial.
    The defendants, appellants, merchants doing business in the city of New York, on the 18th day of September, 1873, sued out a writ of attachment against the property of one Henry Curran, said writ being directed to one John T. Stewart, a city marshal of the city of New York; the writ was placed in the hands of said Stewart by the attorney for the attaching creditors, with instructions to attach some goods that came from Lockport, down in Hey street.
    Stewart, accompanied by one Walker, a salesman of Gilbert & Weaver, proceeded to No. 79 Hey street, and Walker, pointing to a lot of goods in the possession of one Lewis Greenbaum, said : “ These are the goods,” whereupon the marshal made a levy, by virtue of said writ, upon the goods of the plaintiffs herein. Mr. Greenbaum informed said marshal that said goods did not belong to Henry Curran, but to H. Herrman & Son ; whereupon Walker “started for Gilbert & Weaver to state to them how the trouble was about the goods, and then he returned and told Stewart to take the goods at all hazards,” “ by the authority of Gilbert & Weaver.” The goods of the plaintiff were then seized and removed to an auction- store, notwithstanding the protests of Greenbaum and his attorney. The plaintiffs then brought suit for the recovery of the value of the goods against the defendants Gilbert & Weaver, and John T. Stewart, the marshal. The counsel for Gilbert & Weaver asked the court to direct a verdict in their favor, on the ground that there was no evidence connecting them with the seizure, or any authority or ratification on their part. The motion was denied, and the court submitted the question of authority and ratification to the jury, to which they excepted.
    The court at General Term say: “ When a seizure is made of property and it is claimed by a third party, and he is compelled to commence an action to recover it, and the person for whose benefit the seizure is made not only refuses to surrender it, but by answer to the suit thus commenced asserts it to be the property of the debtor, the ratification of the levy is complete — the assent to it established beyond doubt. The necessary legal elements are thus presented.
    “ The ratification is made with full knowledge of all the facts. (,Seymour v. Wyckoff, 10 N. Y., 213 ; Brass v. Worth, 40 Barb., 648, 654; Howell v. Christy, 3 Bans., 242.) The learned justice was right in submitting that question to the jury, arid the exceptions taken relating thereto cannot be sustained, * * * and the duty of this court is to affirm the judgment.”

      A. J. Yanderpoel, for the appellants, Gilbert & Weaver. Ransom da Metz, for the respondents.
   Opinion by

Beady, J.;

Davis, P. J., and DaNiels, J., concurred.

Judgment affirmed, with costs.


author:
BooKes, J.:
      Leaened, P. J.:

text:
    REUBEN R. SPAN, Appellant, v. HENRY O. ELY, Respondent.

      Liability of master, for injuiHes to servant.

    The defendant, a physician, attended a woman who died of small.pox and subsequently employed the plaintiff to whitewash the house in which the death occurred. The plaintiff, who knew that the woman had died of small pox, entered and whitewashed the house, relying upon the assurances of the defendant that the house had been thoroughly disinfected, and that he would be entirely safe in so doing. Plaintiff having contracted the disease in the house, subsequently brought this action to recover the damages sustained thereby. Held

    (1), that the relation between the parties was that of master and servant; and
    (2), that the plaintiff was entitled to recover in case the jury should find on all the facts, that the plaintiff did not act rashly and inexcusably in entering the house under the employment; and further, that the defendant had not conducted towards the plaintiff with due care and prudence.
    The liability of a master for injuries sustained by the servant in the course of his employment, considered.
    Appeal by the plaintiff from a judgment of nonsuit, and also from an order denying a motion for a new trial, made on the judge’s minutes.

      Edward K. Glarh, for the appellant.

      E CConnor and W. J. Ludden, for the respondent.
    In actions brought by a servant against his master for negligence, the burden of proof, as to tbe master’s knowledge or culpability in lacking knowledge, rests upon the plaintiff. {Kunz v. Stewart, 1 Daly, 431; McMilland v. Saratoga, etc'., JR. JR. Co., 20 Barb., 449; Shearman & Bedfield on Negligence, § 99; Buzzell v. Laconia Mfg. (Jo. 48 Maine, 113.) In all cases in which it is necessary to prove a scienter, in order to sustain, the action, the complaint, to be good, must allege such scienter or knowledge on the part of the defendant. (Yan Santvoord’s PL, 286; 1 Chitty PL, 403, and 3 Dowl., 769.) Knowledge on the part of the defendant of the danger and risk, is the gist of the action. (Loomcm v. Roclcaway, 28 How., Pr., 472; 25 N. Y., 566.) The plaintiff knew the condition of the house, and voluntarily assumed the- risk, whatever it was, with full knowledge of its extent, and consequently had no cause of action. (Bird v. JRJolbroolc, 15 Eng. Com. Law Pep., 91, 93-96 ; Loomis v. Terry, 17 Wend., 498, 499; JBJartfield v. Roper, 21 id., 618, 619 ; Shearman & Redfield on Negligence, § 88; 30 Barb., 229; 5 Ohio St., 541; Wright v. M. Y. C. R. R. Co., 25 N. Y., 567, 568; Ryan v. Fowler, 24 N. Y., 416; Cruty v. Erie Railway Go., 3 N. Y. S. C., 245.)
   BooKes, J.:

For the purpose of this appeal, the following may be assumed as ■the facts of the case, to wit: 1. That the defendant employed the plaintiff to whitewash a house in which one Fanny Davis had recently died of the small pox. 2. That the defendant was a physician and attended such person during her sickness and until her decease, and knew that she had such contagious disease, and that she died of it. 3. That he assured the plaintiff that the house had been thoroughly disinfected, and that he would be entirely safe in entering and -whitewashing it. 4. That the plaintiff entered and whitewashed the house under the defendants employment; contracted the disease therein and remained sick for a considerable time, suffered greatly and was put to great loss and expense by reason thereof. The question is, whether these facts, if established, would give a cause of action, or make a case proper to be submitted to the jury. The plaintiff was the hired servant of the defendant. The legal relation existing between the parties was that of master and servant. Then what duty devolves upon, the master, as regards the exposure of his hired servant to an infectious disease under his employment? In respect to injuries to the person of the servant while engaged in his master’s business under his employment, the law is supposed to be well settled. If the servant engage with knowledge of the dangerous character of the employment, he will be deemed, in the absence of any qualifying facts, to have contracted with reference thereto, and to have assumed the risks incident to the service. (Ryan v. Fowler, 24 N. Y., 410.) But the principal or master is responsible for injuries resulting to his employees from his personal negligence or misfeasance. (Keegan v. The Western R. R. Co., 8 N. Y., 175 ; Warner v. Erie Railway Co., 39 id., 468; Connolly v. Poillon, 41 Barb., 366; Affd. in Ct. App., 41 N. Y., 619, n.) So it has been held that the master is responsible, in case .he exposes his servant to unreasonable risks and dangers. In Noyes v. Smith (28 Vt., 59), it is said that “ the master is bound to exercise care and prudence, that those in his employment be not exposed to unreasonable risks and dangers; and the servant has a right to understand that the master will exercise that diligence in protecting him from injury.” This case and this principle have been repeatedly cited in our courts with approval, and Judge BeowN gives the principle significance in Connolly v. Poillon, when he says that in determining the duty of the master to his servant, reference must be had to the limited means of knowledge possessed by the latter, and to the fact that men whose business is the lowest forms of human labor are not given to thought, reflection, and foresight, and therefore some one must usually think and reflect and foresee for them. Now, had the plaintiff in this case been ignorant of the fact that the house was infected, and the defendant, knowing of it, had omitted to inform him, and he had contracted the disease while engaged there in the defendant’s service, undoubtedly the defendant would have incurred liability. It would be manifestly imprudent to send a servant to labor in an infected house. It would expose him to great risk and danger in violation of the plainest rule of right. A master is not privileged, knowingly, to put his servant’s health or life in jeopardy, without informing him of the risk so that he may avoid it. So it has been well said, that it is the master’s duty to be careful that his servant be not induced to work under the supposition and belief that he is secure from danger, when in fact the master knows, or ought to know, that it is not so. In Cesar v. Karutz (60 N. Y., 229) the defendant leased apartments to the plaintiff which were infected with the small pox, of which fact the former had notice but did not notify the plaintiff, and the latter contracted the disease. The defendant was held to liability. (See, also, Jeffrey v. Bigelow, 13 Wend., 518; B. and A. R. R. Co. v. Shanly, 107 Mass., 568; Barney v. Burnstenbinder, 64 Barb., 212 ; Thomas v. Winchester, 6 N. Y., 397; Vandenburgh v. Truax, 4 Denio, 464.) In the cases here cited, as well as in the ease under consideration, the rule of liability is made to stand upon the principle of right and fair dealing between man and man, whatever may be their relation to each other.

In this case the plaintiff was informed, before his employment by the defendant, that a person had sickened and died in the house* of the small pox. Did knowledge of this fact change the case so as to relieve the defendant from liability ? The decision in Patterson v. Wallace, in the House of Lords (28 Eng. Law and Eq., 48), answers this question in the negative, or rather holds, that with such knowledge, accompanied by assurances that there was no danger to be apprehended, it became a question for the jury whether due care and caution had been exercised. In the case cited the injury complained of occurred to a miner, who was employed by the defendant to work in his coal mine. While engaged in taking out coal a stone fell from the roof of the mine and killed him. It appeared that the deceased knew of the dangerous position of the .stone and had often complained of it to the defendant’s manager, who insisted that there was no danger to be apprehended from it; he, nevertheless, promised to remove it. It was first held in this case, that the knowledge of the deceased that the stone was in a dangerous position, barred the action for the injury occasioned by its fall; but on appeal, this decision was reversed. In considering the case on appeal the lord chancellor first laid down the rule that when a master employs a servant in work of a particularly dangerous character, he is bound to take all reasonable precautions against dangers to be incurred by his workman; and he then proceeded to examine the question, whether knowledge by the workman of the danger which existed should, in that case, bar a right of recovery for the injury which ensued. He laid particular stress upon the assurances by the manager to the deceased that there was, in point of fact, no danger. The manager had told the workmen when they complained of the danger that they were “afraid of snow, when none fell;” in effect, that there was no reason to apprehend injury. The deceased remonstrated, saying, it is dangerous.” The manager replied: Why, Bobin, you might make your bed below it.” So the conclusion was reached by the lord chancellor, that, in consideration of these assurances to the .deceased that no danger was to be apprehended or incurred, the jury might find that there was no rashness of conduct on the part of the deceased; and that the question would remain for them, whether, on the whole case, the master had acted toward his servant with due care and prudence.

Now, let us turn to the case in hand, and mark the strong analogy on this point between that and the one cited. Here the plaintiff knew of the fact that the house had been recently occupied by a person having the small pox. The defendant, who was a physician, applied to the plaintiff to whitewash the house. • The latter said he was afraid. The defendant then told him there was no danger; that the house had been thoroughly cleansed ; that he would guarantee him against danger; that if there was any danger he would say so; or, in substance, all this, with other assurances, that he would incur no risk in doing the work. Thereupon the plaintiff' accepted the employment. Now, with this evidence, according to the decision in Patterson v. Wallace (supra), it was for the jury to say, on all the facts of the ease, whether the plaintiff had acted rashly and inexcusably in entering .the house under the employment; and whether the defendant had acted toward the plaintiff with due care and prudence. There were other questions, of course, for the consideration of the jury. It was a question of fact, on the proof, whether the plaintiff contracted the disease at the infected house, as there was some proof of his exposure to the disease elsewhere. As the case is here presented, it should have been submitted to the jury on all the evidence, with proper remarks and instructions by the court on all the questions of fact presented by the pleadings and the evidence. The nonsuit and dismissal of the complaint were erroneous. A new trial must be granted.

Leaened, P. J.:

I concur in this result. But it should be noticed, I think, that the pleadings admit that the representations made by the defendant weré untrue; and that it is proved that'one of these representations, admitted to be v untrue, was that the house had been thoroughly cleansed, which was a matter of fact not of opinion ; and further, that the defendant was the health officer of the place and a physician ; on whose statements, therefore, the plaintiff: might rely.

Present — Leaened, P. J., and Bocees, J. BoaedmaN, J., taking no part.

Judgment and order reversed ; new trial granted, costs to abide event.


author: BocKes, J.:

text:
    JESSE O. BURROWS, Respondent, v. STEPHEN F. WHITAKER, Appellant.

      Contract of sale — when title passes — Delimw'y — acts to designate arrticles — to ascertain their value — distinction.

    Defendant agreed to purchase of the plaintiff all the lumber he should deliver, prior to the spring or rafting freshet, at a place on the Delaware river to be provided by the defendant, who also agreed to furnish a man to receive and cull the same, and to pay therefor eleven dollars per thousand for all good lumber, and five dollars and fifty cents for the culled; the amount of lumber to be counted while on the bank or estimated when in a raft. In pursuance of > this contract plaintiff delivered lumber at the place to a man employed by the defendant to receive and cull it; before the lumber had been counted or estimated a portion of it was carried away by a freshet. Held, that the title to the lumber passed to the defendant upon its delivery at the designated place, and that he was liable for the price thereof.
    If the act remaining to be done is one of specification the title does not pass; if only to ascertain the total value at designated rates, the title does pass.
    Appeal by the defendant from an order denying a motion for a new trial made on the judge’s minutes, and also from a judgment in favor of the plaintiff, entered on the verdict of the jury.
    The action was brought to recover for a quantity of sawed lumber, alleged to have been sold and delivered by the plaintiff to the defendant. The answer was a general denial and payment.

      On the trial the plaintiff gave evidence tending to show a sale of the lumber and its delivery on the bank of the Delaware river, where it was agreed that it should be deposited. While the lumber was lying on the bank of the river a portion of it was carried away by a freshet. The defendant accepted and paid for the remainder, but refused to pay for what was lost by the freshet, and this action was brought to recover therefor. The jury found a verdict for the plaintiff for $910.82. A motion was made for a new trial on the judge’s minutes, which was denied. Judgment being entered on the verdict an appeal was taken therefrom, and also from the order denying a new trial.
    The question on the trial was whether, by the terms of the contract of sale, which was oral, the title to the lumber passed to the defendant on depositing and leaving it for the defendant on the bank of the river. It was also insisted that there was evidence tending to show its actual acceptance. The facts necessary to the consideration of the questions presented on the appeals are given in the following opinion.

      Chapman d¿ Martin, for the appellant.

      A. C. Moses and Giles W. Hotchkiss, for the respondent.
   BocKes, J.:

There was no dispute as to the general facts of the case. That there was an agreement between the parties for the purchase and sale of the lumber was admitted by both, and its terms were given by them alike except, perhaps, as to the single point of delivery. The contract was made in the spring of 1872. The defendant agreed to pay the plaintiff eleven dollars per thousand for all the good lumber, and five dollars fifty cents for all the culled lumber, the latter should deliver at Traver’s eddy, on the bank of the Delaware river, prior to the first rafting freshet in the spring of 1873, the defendant agreeing to have a man at the place of delivery to cull and pile it.. Under this contract the plaintiff commenced to deliver the lumber at the place designated, in the early part of December, and continued such delivery until about the middle of January following or perhaps a little later; the defendant furnishing a man as be bad agreed to do, wbo assisted in unloading and directed the culling and piling it. During the time of such delivery, and on the seventeenth January, there occurred an ice freshet which washed away the lumber in dispute. The case turned on the question, whether there had been such a delivery of the property washed away as to vest the title to it in the defendant. Let us now turn our attention to the proof bearing on the question of delivery. The plaintiff testified as follows: “ He said he would buy it on the bank, if I would deliver it on the bank at Traver’s eddy. * * * We talked it over a few minutes and I finally told him he could have it on the bank. * * * It was agreed upon that he should furnish a man to pile it. *. * * He didn’t want the culls in, as it would hinder him about rafting, and he would cull it and pile it so as to have it handy to raft. * * * I think I asked him how we should get at the amount, and after talking awhile we said to each other that we would either count it or estimate it; either count it on the bank or estimate it in the raft.” On his cross-examination, he said, “ it was to be either counted on the ground or estimated in the raft; it was not decided which; ” and again, it was either to be counted on the bank or estimated in the raft, when rafted.” The defendant testified that the lumber “ was to be counted on the bank, in the spring when we rafted; when spring opened I was to take the lumber and have it counted or estimated when rafted in the raft.” He denied that he agreed to furnish a man to receive, cull and pile, the lumber as it was being drawn. Such was the substance of the evidence on this point; and it is readily seen that it was not so entirely uncontradictory and positive as to leave the question as to the change of title a mere matter of law. Precisely what the parties agreed upon in regard to the delivery became a question of fact, to be determined on a consideration of the evidence as given by the parties, not entirely harmonious, viewed under the light of the. circumstances attending the transaction. Had the contract been in writing, in the, absence of any latent ambiguity, the .question would have been one’ of law on the instrument itself; a simple question of legal construction. But here the parties differed somewhat, both as to what was said at the time the bai’gain was entered into and as to their subsequent action in carrying it into effect. Such action is frequently of significance in determining the purport of a contract, where its construction is a subject of doubt. This was a case open to examination on all the evidence as a question of fact, whether the deposit of the lumber on the bank of the river constituted an absolute and perfected delivery of it, pursuant to the contract between the parties. The parties had testified, each to his own version of the contract; they were not entirely harmonious in their statements; the defendant provided the place of deposit on the bank of the river; he furnished a man to pile, cull and count it as it was there deposited; the plaintiff testified that he agreed to furnish a man so to receive it; the lumber, or part of it, was rafted without further or mutual inspection; there were declarations of the defendant of some significance as to his interpretation and understanding of the contract. Under this condition of the case it was properly submitted to the jury for their determination as a question of fact: (1) As to what the contract was, and (2) whether there was an absolute and perfected delivery of the lumber under the contract.

It is insisted on the part of the defendant, that, accepting the statement of the plaintiff himself, and wholly rejecting all evidence conflicting with it, the lumber was to be counted on the bank of the river in the spring, or estimated in the raft when rafted; neither of which was done as regards what was carried away by the freshet, hence there was no delivery of it so as to vest the title thereto in the defendant. It is, indeed, a very familiar rule, that title to property sold does not vest in the vendee until delivery — actual or constructive; and so it has become a well settled rule that title does not pass to the vendee, so long as any thing remains to be done to ascertain the' identity, quantity, quality or price of the property; that is, in case either of these acts was by the fair construction and import of the contract to precede or accompany delivery. The rule has been, perhaps, more clearly stated thus: that where, after a sale of goods, some act remains to be done by either the vendee or vendor before delivery, the property does not vest in the vendee, but continues at the risk of the vendor. The cases bearing on this subject are collected and commented on by Mr. Justice Hand, in Evans v. Harris (19 Barb., 416), with few, if any, omissions of those reported prior to that time (1853). And all later cases are probably in consonance with those there cited. The question here is, whether the contract was executed as to the lumber deposited on the bank and received there by the person designated by the defendant to receive it, so fast as it was so deposited; or whether it remained executory until counted in the spring or estimated in the raft. The plaintiff insists that it was the agreement between the parties that the title should pass on delivering the lumber on the bank. The plaintiff likens this case to Crofoot v. Bennett (2 N. Y., 258), where the bricks sold were not counted out, marked or separated from the residue in the kiln, yet it was held that the title passed to the vendee. In this case it was said that where goods are clearly identified, then, although it may be necessary to number, weigh, or measure them, in order to ascertain what would be the price of the whole at a rate agreed upon between the parties, the title will pass. It was here further said, that the distinction to be observed in the cases does not depend so much upon what is to be done, as upon the object which is to be effected by it. If that is specification, the property is not changed ; if it is merely to ascertain the total value at designated rates, the change of title is effected. The doctrine of this case has been repeatedly recognized and sanctioned in more recent decisions, and stands upon a sound basis. (See Wait’s Table of Cases under Crofoot v. Bennett; see, also, Dexter v. Bevins, 42 Barb., 573; Tyler v. Strong, 21 id., 200; Macomber v. Parker, 13 Pick., 175 ; Riddle v. Varnum, 20 id., 280; Russell v. Carrington, 42 N. Y., 118.) In Macomber v. Parker (supra), it was laid down that where a quantity of goods bargained for at a certain rate is actually delivered the sale is complete, notwithstanding the goods are to be counted, weighed, or measured in order to ascertain the amount to be paid for them. Now, assuming it to be true, as the plaintiff testified, that the delivery was to be made on the bank of all the lumber he should see fit to place there prior to the spring or rafting freshet; that the defendant provided the place of its deposit, and agreed to have a man there to receive it, and that he was there and did receive it, culling it as it was delivered; even if the contract was that the amount to be paid should be determined in the spring by counting or estimating, the title passed according to the decisions above cited. The plaintiff says : “ I think I asked him how we should get at the amount, and after talking awhile, we said to each other that we would either count it or estimate it; either count it on the bank or estimate it in the raft.” Now, here the property was identified by its delivery on the defendant’s banking-ground, and by its reception by his agent or servant. The counting or estimating was not necessary for identification. It was in the defendant’s actual possession, and under his control, for he contemplated putting it in the raft before estimating it, if he should so elect. The price was settled ; and the counting or estimating was merely to determine the amount with a view to payment. Thus the ease was directly within the decisions cited. It must be held that the title to the lumber passed to the defendant on its delivery on the bank of the river. There was no error in the admission or rejection of evidence calling for' a reversal of the judgment.

The order and judgment appealed from must be affirmed, with costs.

Learned, P. J., concurred. BoardmaN, J., not acting.

Judgment and order affirmed, with costs.


author: Bocees, J.:

text:
    JAMES POPE, Respondent, v. LEWIS HANMER, Appellant.

      Adverse possession — substantial inclosure — Cultivation and vmpi'ovement — Code, § 85.
    In this action, brought to recover damages for a trespass committed upon the land of the plaintiff, the defendant claimed to hold the lot by adverse possession. It appeared upon the trial that the lot was inclosed on one side by a highway, on two sides by fences and on the remaining side by a distinct line of marked trees from corner stake to corner stake. Held, that the lot was not protected by a substantial inclosure within the meaning of subdivision 1 of section 85 of the Code.
    It further appeared upon the trial, that the defendant had occasionally used the lot, (a wood-lot) as a pasture, and that he had, now and then, taken wood and timber from it for shingles and staves. Held, that this did not show it to have been . usually cultivated or improved, within the meaning of subdivision 2 of section 85 of the Code.

      Appeal by the defendant from an order- denying a motion for a new trial, made on a case and exceptions.
    The action was trespass for unlawfully entering upon the plaintiff’s land and cutting and carrying away a quantity of wood.
    The defense set up was a general denial, title and possession in the defendant, and adverse possession. The case was tried by jury, and a verdict of five dollars damages was rendered .against the defendant. Thereupon a case with exceptions was made and settled, and a motion thereon was made at Special Term, for a new trial, which motion was denied. An appeal was then taken to the General Term. The questions raised on the appeal appear in the opinion.

      O. S. Baker, for the appellant.
    The land was substantially inclosed and cultivated or improved. It was used for the supplying fuel (wood-lot). (Beecher v. Van Valkenbivrgh, 29 Barb. S. C., 319; Grcdg v. Goodman, 22 N. T. B., 170 ; 1 Hilliard on Beal Property [4th rev. ed.], 66, note and cases cited; Doming v. Miller, 33 Barb. S. C., 386.)

      J. McGuvre, for the respondent.
    Where a party has no paper title, a possession or occupation to be adverse must be an actual enjoyment of the land for agricultural purposes, such as plowing, sowing, erection of buildings, making improvements generally. (Doolittle v. Tiee, 41 Barb., 181; La/ne v: Gould, 10 id., 254; Doe v. Campbell, 10 Johns., 477; Jackson v. Wheat, 18 id., 338; Jackson v. Warford, 7 Wend., 62; Corning v. Troy Iron and Nail Factory, 34 Barb., 529, affirmed in 44 N. Y., 577.) The defendant’s deed confining him to lands on lot three, he has no constructive possession of any land on lot four. (Jackson v. Woodruff, 1 Cow., 286, 505; Tyler on Eject., etc., 895, and cases cited.) The plaintiff had possession of the land, and the action could be maintained. When a party has a deed for an entire lot of land, a part of which is under actual occupation, within a substantial inclosure, the legal effect of the deed is to enlarge the occupation and to create a constructive possession of the remainder. (Jackson v. Woodruff, 1 Cow., 276; Jackson v. Bowen, 1 Caines, 358; Jackson v. Glitz, 8 Wend., 440 ; Wickham v. Freeman, 12 Johns., 183 ; Jackson v. Hazen, 2 id., 22; MiUer v. Shaw, 7 Serg. & Bawle, 143.)
   Bocees, J.:

Tbe pai'ties were owners of adjoining lands, the plaintiff on the south and the defendant on the north of the dividing line. There had been a fence for many years on the north of the plaintiff’s cultivated land, inclosing it on that side and separating it from the uncultivated wood and timber land, which fence the plaintiff insisted was at a considerable distance south of the true line, and was, as he claimed, erected and maintained for his own convenience. The defendant, on the other hand, claimed and insisted that this fence marked the southern boundary of his lot, and the action was brought against him for entering upon and cutting wood on the strip of land situated between what the plaintiff claimed to be the true line and the fence. Much evidence was given bearing on the issue, and it may be here observed that no question is raised on this appeal, in regard to the admission or rejection of evidence. The first point urged upon our consideration is, that the court erred in refusing to direct a verdict for the defendant on the evidence. There was very manifestly no error in such ruling. Without recapitulating the evidence and its bearings, it is sufficient to say that a case was made for the jury on the proof. There was a question of fact certainly on the evidence as to the location of the true line, and also on the question of practical location, supposing that the fence did not mark the true line. These questions were properly given over to the jury, and, on this appeal, must be deemed settled by the verdict. The jury found, as they had a right to find on the evidence submitted, that the true line between the premises of the respective parties was north of the fence, and would include and give to the plaintiff the lands where the alleged trespasses were committed ; and further, that there had never been any practical location of the line between the parties, by the owners on the north and south of it, which barred the plaintiff’s right to insist on the true line as the northern boundary of his land. Thus the verdict determines the rights of the parties, unless obtained or rendered under some erroneous instruction by the court to the jury. This brings us to the consideration of the only important question presented by this appeal. On submitting the case to the jury, the learned judge held and charged that there was no question of adverse possession in the case. He said: There is no claim depending upon adverse possession, for tbe reason that the property in dispute is wood-land, and was incapable of actual possession or use; consequently the principle of adverse possession as establishing title to land does not come into the controversy. This ruling must be considered in view of the provisions of sections 83, 84 and 85 of the Code of Procedure. Section 83 declares what shall constitute adverse possession “under written instrument or judgment.” This section need not be here considered, inasmuch as the defendant made no claim to any part of lot number four under either. His train of title did not purport to convey any part of lot number four. Section 84 provides that when the adverse holding is under claim of title, not founded upon a written instrument, * * * the premises actually occupied, and no other, shall be deemed to have been held adversely, and section 85 declares what shall be deemed an actual occupation, to wit: (1) Where the land has been protected by a substantial inclosure; and (2), where it has been usually cultivated and improved. As above suggested, the facts proved did not bring the case within the purview of section 83. The defendant showed no paper title, or claim founded on a written instrument, to any part of lot four, on which the locus in quo was situated. If his title in fact embraced the locus in quo as part of lot three, there was no question of adverse possession whatevér, for-it was not disputed, indeed was conceded, that he owned to the south line of lot three, wherever that might be in fact, or as established by practical location, and the location of the line to which it was conceded the defendant had title was left to the decision of the jury on the evidence. Thus it is seen that the defendant had no title, nor did he make claim of title upon a written instrument, to any land south of the line, wheresoever that line should be found to be, either in point of fact or by practical location. Consequently his case on the proof was not brought within the purview of section 83. If he had any case for an application of the law of adverse possession, it was because, having title to all or part of lot three, possession had been extended in good faith over part of lot four, on the mistaken supposition that the train of title in fact embraced the land and justified such possession. (Hallas v. Bell, 53 Barb., 247.) But a claim of adverse possession under such a state of facts is controlled by sections 84 and 85 of the Code of Procedure. It would be the case of a party claiming title not founded upon a written instrument; in which case the premises actually occupied, and no other, shall be deemed to have been held adversely. (Code, § 84.) Now, for the purpose of considering the question under discussion, the locus in quo must be regarded as south of the line, or not within the description contained in the defendant’s line of title. Then, was the possession by the defendant and by his predecessors, of the locus in quo, an actual possession within the requirements of the law ? This is to be determined by section 85 which provides that, for the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases only: (1) Where it has been protected by a substantial inclosure; (2) where it has been usually cultivated and improved.” (Code, § 85.) It cannot be maintained that the locus in quo in this case was protected by a substantial inclosure. The premises claimed by the defendant were not so inclosed. Accept the statement of the defendant’s counsel, as given in his points, that it was inclosed on two sides by fences, a highway on another and a distinct line of marked trees from corner stake to stake on the other,” and the lot could not be deemed protected by a substantial inclosure. (Doolittle v. Tice, 41 Barb., 182.) Corner stakes do not, nor does a line of marked trees, constitute a substantial inclosure. Then, was the defendant’s possession and that of his predecessors such as was required by subdivision 2 of section 85 with a view to the establishment of title by adverse possession ? Had the locus in quo or the defendant’s lot, of which it was a part as claimed, been usually cultivated or improved? The lot was a wood-lot, and the utmost that was proved as to possession even (to say nothing as to cultivation and improvement) was an occasional pasturing upon it, and now and then getting wood and timber for shingles and staves, and this only to a very inconsiderable and limited extent. To adopt the language of the learned judge in Doolittle v. Tice (supra), there is no evidence that the defendant adopted any of the means usually employed to improve the land. He never plowed, sowed or tilled it, and it was then added, that this statute had in view the ordinary cultivation and improvement of lands, in the manner in which they are usually occupied, used and enjoyed by farmers for agricultural purposes, such as plowing, sowing, manuring and tbe like. In this case there can be no pretense that the defendant had thus cultivated or improved the lot. (See, also, Lane v. Gould, 10 Barb., 254.) In the last case cited the rule was laid down, that to make out an adverse possession of lands so as to vest the title, .where there is no deed or other written instrument, there must be a real substantial inclosure — an actual occupancy- — -apedis possessio, definite, positive and notorious, or they must have been usually cultivated or improved. As regards an actual possession. — a pedis possessio — with a view to establish title by adverse holding, in a case like the one in hand, Jackson v. Woodruff (1 Cow., 286) is in point. (See, also, Crary v. Goodman, 22 N. Y., 170-173, 174, 175.) These cases declare the rule to be that where a grantee, in taking possession under his deed, goes unintentionally and by mistake beyond his proper boundaries, and enters upon and actually occupies and improves lands not included in the deed, claiming and supposing them to be his, such occupation will be deemed adverse within the meaning of the statute of limitations, but only to the extent of his actual oeeupaney by 'cultivation and vmprovement. So where a party rests upon his possession of land, outside the description in his deed, the possession, to be effectual as an adverse possession, must be an actual occupation by improvement and cultivation. If the above conclusions be sound, and they seem to stand on authority, the learned judge was right in his instructions to the jury, that the question of adverse possession was not in the case. There was no evidence submitted on which the defendant could predicate a title to the locus in quo, by adverse possession. So, also, these conclusions make the case one where the possession must in law be deemed to accompany the legal title, hence trespass might be maintained by the party holding such title. It seems, therefore, that the ease was properly disposed of at the Circuit, and the order appealed from should be affirmed, with costs.

LeabNed, P. J., concurred. BoARDMAN, J., not acting.

Order affirmed, with costs..


text:
    HIRAM WILLIAMS, Respondent, v. FANNY PEABODY, Appellant.

      Vested remainder — action to restrain waste — who can maintain — Residuary legatee — when he may compel a discovery of personalty held by life beneficiary.

    The plaintiff was the owner of an estate in certain land, for the life of B., to commence upon the termination of an estate of the defendant therein for the term of her natural life. Held, that he had a vested remainder therein, and could maintain an action to restrain the defendant from the commission of waste.
    Defendant was entitled, under the will of her deceased husband, to use certain personal property, in her due discretion, for any purpose and in any reasonable manner, and in such use to consume and exhaust the same, if necessary for her own care and support, and the plaintiff was entitled to receive whatever might remain after her death. Held, that he was entitled to maintain an action to compel the defendant to render an account as to the items of personal property received by her, no inventory thereof having ever been made.
    Appeal by the defendant from a judgment in favor of the plaintiff, directed by a justice of this court, before whom the action was tried without a jury. The action was an action of waste, and for an accounting in regard to personal property. The plaintiff demanded judgment for damages; also for forfeiture of the defendant’s estate, and for protection of his rights in the personal property. By the judgment, the plaintiff was awarded ah injunction to stay waste, and an accounting was ordered as to the personal property, with costs of the action against the defendant. From this judgment the defendant appeals to the General Term.

      A. D. Knapp, for the appellant.

      W. S. Johnson, for the respondent.
   Bocees, J.:

The property, both real and personal, as to which relief is sought 'in this action, came to the defendant under the will of her deceased husband, John Brainard. By that instrument the defendant took an estate for her own life in the lands and premises, with the right also to use the personal property, in her due discretion, for any purpose and in any reasonable manner, and in such use to consume and exhaust the same if necessary for her own support. The remainder of both the real and personal property was, by such will, given and devised to one John Day Walworth. The latter died intestate leaving no widow nor descendant, but leaving a father, Gilbert Walworth, him surviving. John D. Walworth, the legateeand devisee, was the nephew of the testator on his mother’s side, consequently, under the circumstances of survivorship in his case -(which it is here unnecessary to detail), his father, Gilbert Walworth, took, under the statute of descent, a life interest or life estate for his own life, in the real property, subject to the defendant’s life pstate therein (Morris v. Ward, 36 N. Y., 587), and he inherited from his son an absolute interest in the personal property, subject to the defendant’s right to its use and enjoyment during her life, as above stated. These rights of pi’operty, so held by Gilbert Walworth, as heir and next of kin of his son John D. Walworth, were acquired by the plaintiff in this action and were held by him for a considerable time prior to, and until the commencement of the suit.

It is not deemed necessary to state the facts of the case more in detail, as there cannot be, and indeed is not, any question raised in regard to them; certainly not as affecting the title of the respective parties. We may assume, therefore, that the plain tiff’s rights of property, both as regards the real and personal estate, are the same as were those of Gilbert Walworth; and that they are correctly herein above given. It’is seen, therefore, that the estate of the plaintiff in the real property was a remainder for the life of Gilbert Walworth to commence in possession on the decease of the defendant. True, whether it would ever take effect in possession was uncertain ; being made to depend on the fact whether Gilbert Wal-worth should survive the defendant. Nevertheless, it was a vested remainder. Kent says, “ a vested remainder is a fixed interest to take effect in possession after a particular estate is spent. If it be uncertain whether the use ox estate limited infutmre shall ever vest, that use or estate is said to be in contingency. But though it may be uncertain whether a remainder will ever take effect in possession, it will, nevertheless, be a vested remainder if the interest be fixed.” (4 Kent, 202.) And, again, he says, “ it is the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder” (id., 203); and again, “it is not tbe uncertainty of enjoyment in future, but tbe uncertainty of tbe right to that enjoyment, wbieb marks tbe difference between a vested and contingent interest.” (Id., 206.) Now, bere tbe uncertainty was as to tbe enjoyment in future, not as to the right of that enjoyment. Tbe plaintiff’s right to enjoy tbe estate, on the determination of tbe intermediate one, was fixed and certain. Consequently bis estate was a vested remainder for the life of Gilbert Wal-worth, to commence in possession on tbe decease of tbe defendant. A,gainst injury to such interest by tbe defendant, who held the intermediate estate, tbe plaintiff might claim and should have tbe protection of this court. While he might not have a right of recovery at law for damages, yet be could have a remedy in equity by injunction to stay waste. Even when there is only a contingent estate, a court of equity will not permit waste to be done to tbe injury of such estate. So an injunction will be granted when tbe aggrieved party has equitable rights only. (2 Story’s Eq., §§ 913, 914, 919; Willard’s Eq. [Potter’s ed.], 139 ; Woodruff v. Cook, 47 Barb., 304.) In this case no right of recovery for damages was shown, and none were allowed. So the claim for judgment of forfeiture and eviction was not sustained, as such judgment could only be given when the injury to the estate in reversion or remainder should be adjudged to be equal to the value of the tenant’s estate or unexpired term, or to have been done in malice. (Code, § 452.) This was not here so adjudged. But the plaintiff had rights which the court, in the exercise of its equitable powers, could protect. The defendant was shown to have suffered permissive waste, as the learned judge who tried the cause has found, in “ utter defiance of, and disregard for, the plaintiff’s rights.” He also finds that the plaintiff’s interest in the real estate is exposed to loss and injury, and is liable to be seriously affected by the improper manner in which the defendant, just previous to the commencement of the action, permitted the same to be wasted and injured. These findings are not without sufficient support under the proof. The injunction was, therefore, properly awarded.

As regards the personal property, no other judgment than for an accounting as to items was directed. This was proper, inasmuch as the plaintiff had a right to know of what it consisted. No inventory of the property had been made, and the defendant used it for her owe purposes, denying all right thereto in any other party. The action is not for an accounting by the defendant as executrix, but to compel a disclosure of the nature and kind of property received by her, with a view to its due preservation and ultimate application according to the terms of the will. This the plaintiff may demand, and to such relief he is entitled, holding as he does the position and rights of residuary legatee. It is but right and equitable that the defendant, who has received the property, should discover and set it forth, and refusing so to do, the court of equity may compel it. True, the defendant may use the property for her own proper and necessary purposes, and may, if required for her necessary support, wholly consume and exhaust it; but the plaintiff is entitled to have whatever shall remain of it on her decease. The judgment here ordered, to the effect that the defendant should render an account of the items of the property, was therefore just and proper, with a view to protect the plaintiff in his rights relating thereto.

The granting or withholding of costs to the respective parties rested in the discretion of the court, as the cause was tried and is now argued before us as an equity case.

The plaintiff, it seems, failed on the most important claims, charges and demands put forward in the complaint, and it may be added also that the defendant put herself on untenable grounds of defense in several important particulars. Perhaps a very just disposition of this question would have been the withholding of costs from each party as against the other. Put the learned judge in the exercise of his discretion adjudged otherwise, and doubtless based his conclusion on what he deemed the wrongful and unjustifiable course pursued by the defendant in her use of the property. He has characterized her conduct with reference to the property as willful and in utter disregard of the plaintiff’s rights. It cannot be maintained, I think, under the proof and findings of the learned judge, that his conclusion was erroneous as an improper exercise of, or abuse of discretion.

The judgment appealed from must be affirmed, with costs.

LeaeNed, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.