author: JBoardman, J. :

text:
    HIRAM H. DORR, Respondent, v. THE CITY OF TROY, Appellant. MARTIN KELLY, Respondent, v. THE SAME, Appellant.

      Justices’ judgment —production, of docket, necessary.

    . Section 248 of 2 ~R. S., 270, providing that the proceedings in any cause, had before a justice of the peace, may be proved by his oath, does not authorize a judgment recovered before him to be established by his parol testimony as-to the proceedings had before him, '-without the production of his docket; in such case the judgment can only be proved by the production and verification of the docket itself.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justices before Avhom the action was tried, in each of the above entitled actions.
    R. A. Parmenter, for the appellant.

      James Lansing, for the respondents.
   JBoardman, J. :

The assignors of plaintiff were appointed street inspectora March 8, 1870, by the vote and appointment of the common council. By the charter, then in force, the common council were commissioners of highways for the city, and were authorized to pass ordinances in respect thereto, and to appoint persons to care for the streets, etc. In pursuance of such authority, in 1838 and 1869, ordinances were passed providing for the appointment,, annually, of a city commissioner and street inspectors, who should hold office, unless sooner removed, for one year, their compensation to be fixed by the common council, and to be paid quarterly. On the 8th of March, 1870, the compensation of street inspectors was fixed by resolution at $600 per annum. Their duties were also prescribed by ordinance. Such city commissioner and street inspectors became officers of said city. They represented the city in the matter of highways. They were the alter ego of the city in matters pertaining to highways, as a superintendent of a railroad company is of such company. In May, 1870, the charter of the city was amended, and by title 2, section 6 of chapter 598, the offices of city commissioner and street inspectors were abolished. From the time when the act toot effect no such offices existed. Section 2, title 3, provides for the re-organization of the common council after the next charter election in 1871, and then adds as follows : “ The first meeting, of the common council for organization under this section, for the year 1870, shall be the first meeting after the judicial election (May, 1870), and at that meeting all city officers, not created by this act, shall be chosen.” At such meeting the duties, theretofore discharged by plaintiff’s assignors, were imposed upon other persons and officers, of which such assignors had notice as well as that their services were no longer required or wanted. No services were thereafter rendered by them.

When these persons accepted office, it was with reference to the power of the Legislature to terminate the existence of the office at its pleasure. (1 Dill, on Corp., §§ 168, 169.) When the office was abolished, the right to pay ceased. (Connor v. Mayor 5 N. Y., 285.)

By the ordinance under which the inspectors were appointed the common council reserved the right to remove at any time. It was not an absolute appointment for a year, and the city could, not have compelled performance of their duties for a year at the peril of damages for a failure. The appointment was not, therefore, a contract for a year. Resolutions or ordinances fixing salaries are not, in the nature of contracts, with officers. (Dill, on Corp., § 170, and note and cases cited.) The salary may be diminished or entirely taken away. As the officers had no part in fixing the salary they cannot prevent its modification. So, by the notice that their services were no longer wanted, they were, in legal effect, removed from office, and were no longer entitled to pay for services.

But it is claimed by the respondents that a judgment by default has been recovered by the several assignors against the city for the second quarter’s salary, and that such judgment bars or estops the defendant from denying its liability. It appears that such judgments Avere recovered by collusion with the mayor of the city, if any judgment was, in fact, recovered. The Avhole proceeding was discreditable, if not fraudulent. No judgment appears on the justices’ docket. No entry was ever then made. The justice testifies that all the papers and proceedings are lost; that Edwards, one of the assignors, brought an action for three months’ services against the defendant; that he rendered a judgment against the city. He can not, or does not, give the date, the time when the service Avere rendered, the office held by Edwards, the amount of damages or costs. The only entry made was “upon separate sheets of. paper.” No entry was then or has ever been made in the docket. Upon such proceedings and evidence it was claimed by plaintiffs the defendant Avas estopped from interposing its defence, and that such result was conclusive upon every matter determined, and upon every matter which might have been determined. This position was sustained by the court below. Whether the same subject matter was involved, whether the parties Avere the same or privies, or whether such a determination, if valid, would have such effect, will not be discussed, since counsel for the defendant has not presented such questions for consideration.

But we think the proof, by parol, of such a judgment should not have been admitted. The Revised Statutes (2d vol., 269, 270, 245-248) prescribe how a justices’ judgment may be proved (1) : by the docket itself; (2) by a transcript from the docket; (3) by the oath of the justice. These are the only modes of proof, except in case of the death or absence of the justice. The first and second modes were impossible, because there was nothing in the docket respecting the matter. The plaintiffs attempted to avail themselves of the third method. But that can only be done by the production and verification of the docket. He cannot give parol evidence of the proceedings before him without the production of his docket. (Boomer v. Laine, 10 Wend., 525.) Judge Nelson says, the language of the statute means, “ the docket may be proved by the justice * * * by the production of the docket verified by the oath of the justice, and not that the justice may give parol evidence of the contents of the docket.” There is no authority for making anything, except the docket, evidence. (Pratt v. Peckham, 25 Barb., 195.)

Yarious cases are found deciding that the justice may make the entry in his docket, of the judgment given, provided it was entered in due time in his minutes, and .that the judgment so entered is good. (Hall v. Tuttle, 6 Hill, 38; Walrod v. Shuler, 2 N. Y., 134; Fish v. Emerson, 44 id., 376.) But, in all such cases, the judgment was, in fact, entered in the docket before the question came up for review, and it was held that such subsequent entry was sufficient. In the case at bar, no such entry has been made, the docket contains no statement whatever, and proof of, or transcript from, the docket furnishes no such evidence as is required by the statute. Great indulgence has been and should be extended to proceedings before justices’ of the peace. But it ivas never intended, we submit, that entries of judgment made upon loose' sheets of paper, having nothing of permanence, subject to being changed or modified at pleasure from day to day, easily destroyed or lost, should be the basis of evidence in a collateral proceeding of the existence of a judgment.

We ai-e satisfied that plaintiffs assignors were not justly entitled to pay for services, after their offices had been abolished by the Legislature and they had ceased to be in the employ of the city. The alleged judgments were obtained by collusion, and for that reason were entitled to no respect. The evidence of such judgments was not such as the statutes require, and consequently the judgments were not so proved as to bar or estop the defendant from interposing its defence.

For all these reasons, we think, the orders and judgments under review should be reversed, and new trials granted, costs to abide event.

Learned, P. J., and Bocees, J., concurred.

Judgments and orders reversed, new trial granted, costs to-abide event in both cases.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    FRANCES MOORE, Respondent, v. PETER V. BOGART AND SARAH ANN V. BOGART, Appellants.

      Payment by a borrower to the agent of the lender, for services rendered to him by such agent, does not vitiate the loan.

    One Elmer had certain moneys of the plaintiff in his hands to be loaned on bond and mortgage. He also held certain bonds and mortgages given by the defendant to one Crane, payment of which was then being pressed. To enable defendant to make a payment upon the.Crane mortgages, Elmer loaned him §500 of plaintiff’s moneys, and took a bond and mortgage from him therefor. Elmer charged defendant fifteen dollars for his services and for drawing the bond and mortgage. Plaintiff never received any of this fifteen dollars, nordid she know it had been paid to Elmer. Held, that the loan was not usurious.
    Appeal from a judgment in favor of the plaintiff, entered upon-"the report of a referee.

      J. JV. Dexter, for the appellants.

      A. O. Allen, for the respondent.
   Learned, P. J.:

This is an action to foreclose a mortgage ; the defence, usury. The facts are, that the plaintiff had put money in the hands of one Elmer, to loan on bond and mortgage, as her agent. Elmer had previously had charge of certain bonds and mortgages executed by the defendant and belonging to one Crane or his estate. The defendant was behind hand with his interest, and the holder of these bonds and mortgages were pressing. An accounting was had between Elmer and the defendant upon these Crane mortgages. And, in order to make a payment upon these Crane mortgages, Elmer, as agent for the plaintiff, lent the defendant $500 of money of the plaintiff’s in his hands; and took a bond and mortgage to the plaintiff from the defendant, which is the one in suit. Elmer drew this bond and mortgage, and charged the defendant fifteen dollars for his trouble. The plaintiff had no knowledge of this; and never received any part of the fifteen dollars, and had no agreement whatever with Elmer about the matter.

It is not urged on this appeal that this bond and mortgage is affected by any of the prior negotiations between Elmer and Bogart, as to the Crane mortgages. Whether there was or was not anything usurious as to those mortgages, the defendant seems to be satisfied (as he should be) with the finding of the referee, that any such transaction would not affect this mortgage. The plaintiff was, in no sense, a party to them, and could not be affected thereby.

But the defendant insists that the circumstances, that Elmer,, the agent of the plaintiff, charged fifteen dollars for his trouble, made the loan usurious. As already stated, it is proved that the plaintiff knew nothing of this. The fact that Elmer, a banker, had previously taken care of money for her, and had made her no charge, is no evidence of any agreement that he should charge the borrowers. She states that he was a confidential friend, and the temporary custody of the money might be sufficient compensation for the care..

This case seems to us more favorable to the plaintiff than even that of Condit v. Baldwin (21 N. Y., 219). For, in that case, it was not claimed that the money paid by the borrower to the agent was for any actual services. There the agent desired to make the loan on bond and mortgage, because he could then charge for services. The borrower wished to give, and did give, a note ; and paid the agent the same amount as he would have earned if he had prepared a bond and mortgage.

Now, in the present case, Elmer rendered services to the defendant which were necessary to be done, and which, on making a loan, the plaintiff could justly require the defendant to cause to be done at the defendant’s expense. Elmer drew the bond and mortgage, and charged fifteen dollars for his trouble. There is no evidence that this was a large charge ; no evidence that it was a cover (if, under the circumstances, it could be a cover) for usury.

The defendant cites the case of Bank of Salina v. Alvord (31 N. Y., 473), as to which it should be noticed that it was not a case involving the question of usury, but of a restriction on certain banks forbidding a discount at more than six per cent. But, at any rate, the case has no application to the present. The discount was made at the bank by the cashier and teller.

In Browne v. Vredenburgh (43 N. Y., 197) the lender stipulated for the contingent benefit of a share in the profits of certain business, in addition to seven per cent interest. Nothing of that kind existed here. The plaintiff received, and was to receive, nothing beyond seven per cent.

The case of Algur v. Gardner (54 N. Y., 362) is urged by the defendant. An examination of that case shows that the court had charged the jury that the note was not usurious, although the agent made a separate agreement with the borrower to pay her for her benefit a certain sum, provided the principal had no knowledge of, and in no manner, sanctioned the agreement. The Commission of' Appeals held that this was erroneous, because there was not a particle of evidence that the money thus paid by the borrower, and received by the agent, was on a separate contract for her individual benefit. And, again, the learned commission repeat that there was no evidence going to show any separate arrangement between the borrower and the agent “ as to the application of the extra ten dollars paid her, and it was obviously a part of the contract of loan.” Now, in the present case, on the contrary, it is proved, and not contradicted, that the payment of the fifteen dollars was not a part of the contract of loan ; but that it was paid to compensate Elmer for his trouble ; and that he actually performed services for the defendant, for which he was entitled to compensation. It is proved, and not contradicted, that the plaintiff never had any benefit 'from this sum. While, in the case of Algur v. Gardner, the court believed; and thought that, on a proper charge, the jury would believe that the bonus of ten dollars was, in fact, received for the benefit of the principal.

The case of Bell v. Day (32 N. Y., 165) holds the same doctrine with Condit v. Baldwin. And, in that case, the agent had rendered no services whatever to the borrower ; but only charged, a bonus for effecting the loan.

We-think the judgment should be affirmed, with costs.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs.


author:
Learned, P. J.:
      Bociues, J.,

text:
    THE SUSQUEHANNA VALLEY BANK, Respondent, v. JUSTUS PICKERING, Appellant.

      Money paid on a forged draft — when it cannot be recovered from an indorser.

    A draft for $1,200, purporting to be drawn by the” cashier of a New Jersey bank,, upon a New York bank, payable to the order of one Brown, was, on June 14, purchased by the plaintiff and the proceeds paid to Brown. The latter, who-was unknown to plaintiff’s officers was accompanied by the defendant, who, at-plaintiff’s request, indorsed the draft, though he received nothing for so doing. Brown had brought a letter of introduction to the defendant, which proved to be a forgery. The draft had been altered by changing the name of the payee and raising its amount from twenty-five dollars to $1,200. The draft having been returned to the plaintiff, it sued the defendant to recover the amount paid on it.

      Meld, that as the defendant had received none of the money paid by the plaintiff, he was liable solely as an indorser, and that the necessary steps to charge him as such, not having been taken, the action could not be maintained. (Bocees, J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.
    This action was commenced by the plaintiff against the defendant upon a certain draft or bill of exchange, of which the following is a copy:

    (Indorsed) “William Brown,” “Justus Pickering.” “Pay D. Palmer, cashier, or order, for collection account of Susquehanna Valley Bank, Binghamton, N. Y.
    “J. W. MANIER.”
    The defendant, Justus Pickering, put his name upon the aforementioned draft or bill of exchange, under the following circumstances : On the 14th day of June, 1877, the payee, Brown, called upon the defendant Pickering and showed him a letter of introduction, pui’porting to have been written by a Mr. Conklin, of New York, to the defendant, introducing the said Brown to defendant. The Conklin mentioned in the letter was an acquaintance and business friend of defendant; the letter was subsequently found to be a forgery/but not until some four weeks after the transaction herein mentioned.
    At the request of Brown, defendant went with him to the banking house of plaintiff; at the request of the cashier, Pickering put his name upon the back of the draft under the name of Brown. Manier, plaintiff’s cashier, paid to Brown $1,200, and received the draft; Pickering received no portion of the money paid, and was in no manner benefited by the indorsement.
    On the 15th day of June, 1877, the plaintiff forwarded the draft to their correspondent, the National City Bank of New York, for collection. On the morning of the 16th of June, 1877, the National City Bank presented the draft to the drawee, the First National Bank of New York, for payment, and upon such presentation the draft was paid and canceled.
    The First National Bank of New York sent it on the 2d day of July, 1877, to the First National Bank of Plainfield, N. J., which received it on July 3, 1877. On the ninth of July, it discovered that it was a draft issued by them on the 5th day of June, 1877, for the sum of twenty-five dollars, payable to the order of one William A. Palmer ; that the date had been changed to the sixth of June ; the words “ twenty-five ” had been erased and the words “ twelve hundred ” written in their place ; the figures “ $25 ” had been erased and “$1,200” inserted; the words “William A. Palmer” had been erased and “ William Brown” written in their place.
    On the tenth of July, the First National Bank of Plainfield, N. J., returned the draft to the drawee, and on the eleventh of July it was returned to the plaintiff.
    On the twelfth of July, the defendant was informed of the aforesaid facts by Mr. Manier, plaintiff’s cashier, but the draft was never protested.
    /S’. O. Millard, for the appellant.

      JEdward K. Clark, for the respondent.
   Learned, P. J.:

It is not pretended that Pickering was guilty of any fraud, or that he was a party to the fraud done by another person.

By indorsing the note he became liable, if charged as an indorser, whether the note was genuine or not. But he has never been charged as an indorser, and is, therefore, not liable as such.

Nor did he receive any of the money. In the case of Bank of Commerce v. Union Bank (3 N. Y., 230), the recovery was not on the bill or note, but was for money paid to the defendant by mistake. So, also, in the case of White, v. Continental Bank (64 N. Y., 316). But, as Pickering did not receive any of the money, he is not liable to an action as for money paid by fraud or mistake. That is always an action, equitable in its character, based on the fact that the defendant has money which, in justice, he ought not to retain as against the plaintiff. No such claim can exist against Pickering.

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

Bociues, J.,

dissenting:

The obligation of the pax'ties to. commercial paper, makers and indorsers, is presumably in the order in which their names appear thereon. The paper, in theoiy, passes to the holder through the hands of the indorsers in that order. In this case, the defendant did not receive the money on the draft. Still the money was advanced by the plaintiff upon the faith of his indorsement. Hence, the defendant must be hold to have indorsed the paper to the plaintiff, and their relation became and was strictly that of indorser and indorsee. The defendant then, by his indorsemexit, guaranteed to the plaintiff, not only the genuineness of the signatures on the paper antecedent to his own, but also that the instrument itself was genuine. He then could not deny his liability to the plaintiff, on the ground- that the draft had been raised from twenty-five dollars to $1,200, and must be held responsible the same as if he had received the moiiey from the plaintiff on the spurious paper. Then, holding the defendant to the genuineness of the draft, has he been legally charged according to his liability on the facts found ? He was not charged in the usual mode by making demand of payment and giving notice of dishoxior. But the learned judge held him liable, on the ground that due diligence was used in forwarding and presenting the draft for payment axid in discovering the alteration, and notifying the defendant of the fact; that having received the money from the plaintiff, as in law he must be held to have done, on spurious paper, ho will be held bound to its return in case of due diligence in discovering the -character of the paper and informing him of its invalidity. This ruling seems well suppox’ted by the decision in Bank of Commerce v. Union Bank (3 N. Y., 230). It is there said, in substance, that in a case like this, due diligence in detecting the spurious character of the paper, and in giving xiotice of its invalidity to the indorser, was all that was required of the indorsee to establish the liability of the former to l’espond. The language of the court in that case is appropriate here. As is there said, the action is xxot founded on the bill as an ixxstrument containing the contract on which the suit is brought. The defendant has obtained the money of the plaintiff, without right, on the exhibition of spurious paper as genuine ; its invalidity being unknown to both. The defendant ought not, in conscience, to retain the money, because it does not belong to him ; and, for the further reason, that the defendant and the previous indorsers have, each, on the same principle, their remedy over against the party to whom they respectively paid the money, until the wrong-doer is finally made to pay. If that party should be irresponsible, or if he cannot be found, the loss ought to fall on the party who, without due caution, took the bill from him. In cases where no negligence is imputable to the transferee or holder, in failing to detect the spurious character of the paper, the want of notice, within the ordinary time, to charge the previous parties to the bill, is excused, provided notice of the invalidity of the paper be given as soon as it is discovered. Such is the reasoning and, in general, the precise language of the court in the case cited. (See page 237.) • It cannot, with fairness, be claimed that due dilligence is not shown in this case in the par* ticulars above suggested.

The judgment should be affirmed, with costs.

Present — Learned, P. J.; Bocees and Boardman, JJ.

Judgment reversed, new trial granted, costs to abide event.


author: Bockes, J.: Learned, P. J.,

text:
    PATRICK J. SMITH, Respondent, v. PATRICK CONLIN and others, Appellants.

      When a verbal contract is not void, as being a contract not to be performed within one year.

    In October, 1876, plaintiff entered into a verbal agreement with the trustees of a school district, by which he was to teach for the year ending October 1, 1877, at a "fixed salary, and for a further term of one year, at the same salary, to commence on the last mentioned day, if no notice should be given by either party, at least two weeks prior to that date, that the services should then qease.

      Held, that the agreement was not void as one which, by its terms, could not be fully performed within one year. (Learned, P. J., dissenting.)

      Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed at the circuit.

      J. Newton Fiero, -for the appellants.

      J. F. Van Ftten, for the respondent.
   Bockes, J.:

The contract with the plaintiff to teach was made in October, 1876, and was by parol. It was for the year ending October 1, 1877, at a salary of $552, and for a further year, at the same-salary, to commence on the last mentioned day, if no notice should be given by either party, at least two weeks prior to that date, that the services should then cease. Such notice was not given, and the plaintiff continued his services for a few weeks into the-second year, when he was discharged by the defendants. He made claim for his salary for the entire year. On the trial judgment was awarded him for the full amount.

It was urged on the trial, and it is still urged on this appeal, that the contract, as regards the second year, was void by the statute of frauds, which provides that “ every agreement that, by its terms, is not to be performed within one year from the making thereof,” shall be void unless in writing and subscribed by the-party to be charged therewith. (2 R. S., 135, § 2, sub. 1.) On the argument of the appeal at bar, I was fully impressed with the correctness of this position ; but, on examining the authorities, I find it otherwise expressly decided. In Trustees v. B. F. Ins. Co. (19 N. Y., 305), the agreement was that, until notice to the contrary should be given by one party or the other, the defendant should renew the policy from year to year*. It was held that'the agreement was not within the statute of frauds, although by parol. Judge Comstock, in delivering the opinion of the court, says : “ Such an agreement, although not in writing, is not void by the statute of frauds.” He adds : “ It is not the meaning of the statute that the contract must be performed within a year. * * * If the obligation of the contract is not, by its very terms, or. necessary construction, to endure for a longer period than one year, it is a valid agreement, although it may be cap •able of an indefinite continuance.” The learned judge further says, that such an agreement is not within the language or policy of the law, and cites authorities sustaining his view. This case is much like Moore v. Fox (10 Johns., 244), on the facts, where it was said that, to bring the case within the statute of frauds, there must be an express and specific agreement not to be performed within the space of a year. (See, also, McLees v. Hale, 10 Wend., 426.) The case of The Trustees v. B. F. Ins. Co. (supra) came before the Court of Appeals the second time (28 N. Y., 153), where the former ruling received approval. Judge Emott says : “ This court has decided, and from its decision we are not to depart, that an agreement, by parol, to renew this policy from year to year * * * until one of the parties should signify its dissent to a further continuance of the arrangement, was not «void by the statute of frauds.” (Page 163.) The question again came before the Court of Appeals in Kent v. Kent (62 N. Y., 560), where the rule laid down in Trustees v. B. F. Ins. Co. was again considered and approved. Judge Allen says, in Kent v. Kent, that “the statute, as interpreted by the courts, does not include agreements which may, or may not, be performed within one year from the making, but merely those which, within their terms, and consistent with the rights of the parties, cannot be performed within that time ; ” and the learned judge adds: “ If the agreement may, consistently with its terms, be entirely performed within the year, although it may not be probable, or expected, that it will be performed within that time, it is not within the condemnation of the statute.” (Page 564.)' Here, too, the case of Dresser v. Dresser (35 Barb., 573); in Court of Appeals (1 Abb. Dig., LXIV), received approval. The question presented in this case, therefore, seems to be determined in the plaintiff’s favor by the authorities. The reasoning of the defendant’s counsel is as follows, and is certainly specious ; he says : The contract for the second year must have become a binding contract before it could be enforced ; if it became a binding contract at all, it was by reason of what was said between the parties in October, 1876 ; this was the time of “ making” the contract, and was nearly a year before its performance commenced, and almost two years before it could be fully performed ; hence it was. void by the statute because not to be performed within one year from the making. This reasoning, however, is according to the cases fallacious, in view of the language employed in the statute. That makes a contract by parol void only when, by its terms, it cannot be performed within one year from the making. Here the contract might have been performed within the year by the giving of the notice; and this fact, according to the authorities, takes the case out of the statute. The ruling of the learned judge at. the trial was, therefore, correct. There was no request to have the case given to the jury, if, indeed, there was any question of fact as to which there could be doubt.

The judgment should be affirmed, with costs.

Boardman, J., concurred.

Learned, P. J.,

dissenting.

In October, 1876, the plaintiff agreed, verbally, with defendants, to teach for one year, from October 1, 1877, at a certain salary, unless, at least two weeks before October 1, 1877, either plaintiff or defendants should give notice to the contrary. Is this an agreement which, by its terms, is not to be performed within one year from the time of making ? I do not see how the privilege of annulling the agreement, by a notice two weeks before performance was to commence, makes the agreement one which can be performed within one year from making it. The agreement could not be performed till October 1, 1878. It might be annulled by notice as late as September 15, 1877. But annulling is not performing.

Nor, as it seems to me, is the validity of this agreement affected by the fact that, at the same time, there was also an agreement made, to teach from October, 1876, to October 1, 1877, absolute and with no right in either party to annul it.

The two agreements were distinct. One was absolute, and ended October 1, 1877. The other was conditional; that is, it might be annulled by either party before a certain time. If annulled, then it could not be performed at all within a year, or within any time whatever. If not annulled, then it could not be performed -within a year from the time when il was made.

Again, no notice having been given, the agreement ceased to be conditional, and became absolute, September 15, 1877; and it waa then an agreement which could not be performed until October 1, 1878, and could not be performed within a year from the time when it became binding by its terms.

This case should be “ distinguished ” from Trustees v. B. Fire Ins. Co. (19 N. Y., 305). In the present case, it was not the Tight of either party to annul the agreement, now in question, by giving notice at any time. It could only be annulled by a notice given, within two weeks, prior to October 1, 1877. While the case in 19 N. Y., 305, is put on the ground that either party could terminate the contract at any time.

Present — Learned, P. J.; Bocees and Boardman, JJ.

Judgment affirmed, with costs.


author: Bockes, J. :

text:
    GEORGE R. BELL, Survivor, etc., Respondent, v. THE LYCOMING FIRE INSURANCE COMPANY, Appellant.

      .Proofs of loss mailed to company — presumed to have been received — Retention of proofs without objection — As to estoppel of the company by knowledge of its agent — As to party procuring policy being deemed agent of aséwred.

    'Where proofs of loss, under a policy, are prepared and duly mailed to the company, with the postage prepaid, the presumption is, in the absence of evidence to the contrary, that they were received by the company in due course of mail delivery.
    Where proofs of loss are not delivered, until after the expiration of the time limited by the policy therefor, the company does not, by retaining them, without objection, waive the right to insist that the condition of the policy, in regard thereto, was not complied with.
    When evidence fails to show such knowledge in an agent issuing a policy, as to the true state of plaintiff’s title, as to estop the company from enforcing a forfeiture, caused by plaintiff’s erroneous statement in regard to his title, considered.
    The effect of a clause in a policy, providing that any person, other than the assured, procuring the insui’ance to be taken, shall be deemed the agent of the assured and not the agent of the company, as to all transactions relating to the insurance, considered.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Fdioard G. James, for the appellant.

      JUagone & Holbrook, for the respondent.
   Bockes, J. :

The policy of insurance, on which the action was brought, runs from November 1, 1873, to March 1, 1874, a period of four months. The policy was delivered or took effect on the sixth November, and the fire occurred on the thirteenth, seven days thereafter. Proofs of loss were prepared and mailed to the defendant, with postage prepaid, on the eleventh of January, next following. No evidence was given or offered, showing that they were not received. The presumption is, therefore, that they were received by the company in the due course of mail delivery. The presumption arises from the governmental organization and conduct of the public mail service, rendered efficient through sworn officers and common experience, as to the due transmission and delivery of mail matter. But such delivery of the proofs was not within the time required by the condition inserted in the policy. It is urged that this condition, or provision, was waived by reason of the retention of the proofs, without objection, on that or any other ground. It has been held that the retention of the proofs, without giving any notice of objection to' them, when delivered in time, will be deemed to be an acceptance of them as sufficient, both as to form and substance ; and so, too, the company will be estojaped from insisting that they were not delivered in time, when the delay has been induced by the conduct of its officers or agents authorized to act in that regard. But was held in the recent case of Brinks. The H. F. Ins., Co. (70 N. Y., 593) that, if proofs were not served in time, and the insurer had done nothing to induce the omission, and so the insured had lost all rights under the policy, the fact that thereafter the company refused to pay, without assigning any reason, or only assigning one of many, did not amount to a waiver, and did. not estop it from insisting upon any other defences. The rule is stated clearly in Underwood v. The Far. J. S. Ins. Co. (57 N. Y., 500), that “ while the party bound to perform has still time and opportunity for so doing, if something be said or done by the other party by which the former is induced to believe that the condition is waived, or that strict compliance will not be insisted upon, the latter is estopped from claiming non-performance of the condition but that an estoppel cannot be founded, on facts occurring after forfeiture of the contract because of non-performance.” This rule is. also distinctly recognized in Blossom v. Ly. F. Ins. Co. (64 N. Y., 162.) Now, there was no evidence submitted in this case on which to found either a waiver or an estoppel, as regards the omission to serve the proofs of loss within the time required by the provisions inserted in the policy. Nothing was said or done by any agent of the company to authorize or induce delay in the delivery of 'the proof, if, indeed, an agent could have done this, save in accordance with the stipulation in the policy, that nothing less than a distinct specific agreement, clearly expressed, and indorsed on the policy, should be construed as a waiver of any printed or written restriction therein. Effect was given to this stipulation in the policy according to its terms in Van Allen v. The Far. J. S. Ins. Co. (64 N. Y., 469) ; and, also, to a similar one in Walsh v. The Hart. Ins. Co. (73 N. Y., 5). In the last case cited the waiver was explicitly and purposely given in terms, and by an agent having general powers. But the court held that the party must be hold to his express contract, evidenced by the written stipulation; adding that “ the case seemed to be a hard one for the plaintiff; but courts cannot make contracts for parties, nor can they dispense with their provisions.” (Page 10.) In the case at bar, however, there is no evidence establishing a waiver of the condition, or of the remotest intention to yield up or surrender any existing objection which the company had the right to urge to defeat the plaintiff’s claim. All that occurred or was said bearing on this point was said and done by Goggin, the local agent, or by Chamberlain, the general agent of the company. But there was nothing which passed between them,' if fully communicated to the plaintiff, intimating a waiver as regarded the duty of the assured to serve the proofs of loss according to the requirements of the policy. Indeed, the interview between these parties was after the time for the delivery of the proofs had expired. It seems (although this fact is not distinctly proved) that the claim had been rejected, for some reason, in whole or in part, or, at least, disputed ; whereupon Goggin, after having had. an interview with the plaintiff’s attorney, applied to Chamberlain for a ‘ rehearing and re-adjustment of the case.” On what grounds does not appear, exeept, perhaps, inferentially from Chamberlain’s remarks made to Goggin on receiving the application. He said, if a wrong had been done, the case should be opened, and he would direct -a meeting with the claimants under the policy ; that he would write Goggin when the meeting could be had, and the latter was to inform the parties. Goggin was written to and gave the parties notice. It does not appear that anything further was done in the matter. It does not appear that any meeting was had or that there was any further attempt made for a rehearing or re-adjustment. Here, certainly, is no evidence of any waiver of the due service of the proofs of loss. It is not seen that they were referred to in the remotest manner. This, too, was after the time within which service should have been made. There was not any proof whatever on which to rest an estoppel against the objection that they were not delivered in time.

We are of the opinion that the learned referee was in error, in holding that the irregularity in the service of the proofs of loss was not available to the defendant as a defence to the action.

Again, the above difficulty does not seem to be the only one in the case.

It was provided in the policy that if the interest of the assured be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured ; or if the building insured stand on leased ground, it must be so represented to the company, and so expressed in the written part of the policy ; otherwise the policy should be void. The referee found, as the proof showed, a violation of this provision; but he further held that Goggin, the defendant’s agent, had knowledge of the true state of the title at the time he issued the policy, and therefore the defendant was estopped from this defence ; and further, that Goggin’s mistake in not inserting the actual state of the title was the mistake of the defendant.

It will be necessary to examine the evidence bearing on this branch of the case somewhat in detail. It appears that Goggin had resided in the vicinity of the insured premises for several years ; that he had been on to the premises and into the building; that he know that one Davis had occupied the building principally for some time previously, and still held an occupation at the time the policy was issued. He had before taken an insurance upon the property.

The assured applied to Goggin for an insurance, and, as he testified, told him what he wanted ; told him that he occupied the shops, and Davis also, for making threshing machines; directed Goggin what to put in the policy; gave no directions to him what to write; “ meant by my answer that I stated to him that I was using the shop myself, and that Davis was using it for threshing machines ; that as soon as Davis vacated it in thirty or sixty flays I should use it myself, or rent it to other parties ; Goggin said in response that I virtually owned and occupied the buildings ; never made any further representations to Goggin on the .'subject.” Goggin testified that Bell applied to him for the insurance — said he had bought the property. “I believe I .asked him if he had title to the place, and he said they were making out the papers.” Goggin then wrote, in his daily report, a memorandum of an insurance to Bell (after some preliminaries), as follows : “ $1,500 on his three-story frame building, and twoistory frame addition, known as the Northern Agricultural Works, occupied by him for making agricultural implements, and chains,” etc. This he read over to Bell — said he wrote from Bell’s statement— did not remember that Bell said Davis occupied a part; “did not know who occupied, except from Bell.” He said Hulburd bought the premises at the foreclosure sale, and that he bought of Hulburd.” “ My recollection is, that Bell said he was getting title.” “Bell never told me he was getting’ only three-fourths of the title.”

It was proved, that Davis was in the actual possession of most of the building; that the title was complicated, and that Bell, “the assured, had not the entire title ; but in the best view for him, had actual title to a part, and only an equitable title to the remaining part.

Now, admitting that Goggiu’s knowledge of the condition of the title was the knowledge of the company, and that the latter would be estopped to the extent of such knowledge from setting Tip, as a defence, any other or different condition of title from what was entered in the policy, within the doctrine declared in Van Schoick v. Niag. Fire Ins. Co. (68 N. Y., 434), and kindred cases, does the evidence show that Goggin had knowledge of the true state of the title, and having such knowledge neglected and omitted to make due and proper entry in that regard in the policy. His residence in the vicinitjq and acquaintance with the premises, together with what the assured informed him as to the purposes for which they wore used, might, and perhaps would, raise á presumption that he know the facts — the truth — attending their occupation. But this evidence goes but little way •towards showing him informed as to the state of the title, and especially is this so, in view of the facts that the title had been frequently changed during preceding years, and had been and still remained very complicated. It does not appear that he ever had .any connection with the title himself', or any business relation with others calculated to give him information on the subject. Then, is it shown that he had any information on the subject ? None, save what was communicated to him by the assured at the time he applied for the insurance. Was he then truly and fully informed by the assured as to the state of the title ? Very plainly not so. But before there can be good ground for the application of the doctrine of estoppel to the case, it must be made clearly to appear that Goggin knew the entire truth. It is not enough that he was put on inquiry, even conceding that such is this case. An estoppel, which prevents an assertion of the truth, is not favored in law, and is permitted only to countervail imposition and fraud. For anything' appearing to the contrary, Goggin knew only what-Bell told him as to the state of the title. Then, did Bell tell him the whole truth ? Did he inform the latter fully in that regard, to the end. that his interest in the property might be correctly inserted, in the policy ? He bound himself to make this representation, conceding Goggin’s ignorance of the truth, under an express provision that if he omitted so to do, there should be a forfeiture of the policy.. The substance of what Bell told Goggin was this : that Hulburd had purchased the property on a foreclosure sale ; that he had purchased of Hulburd, and that he was getting title; that “ they were making out the papers.”. This was but part of the entire truth ; whereas, he had bound himself (his interest in the property being confessedly other than the entire and conditional ownership) to represent the true state of the title to the company, and have it truly expressed in the written part of the policy, otherwise the policy wras to be void. To this condition he had bound himself, and he shows no right or equity by way of waiver or estoppel entitling him to be relieved from its effect. This being so, we need not inquire whether the evidence admitted by the learned referee upon the, question of fraud, and so limited when received, may be used to invalidate the express warranty of title contained in the policy.

There is, however, another point which should, perhaps, receive a few words of comment.

The policy in this case contains what is known as the “ agency clause.” It was therein stipulated, in effect, that any person, other than the assured, procuring the insurance to be taken, should be deemed to be the agent of the assured, not the agent of the company, as to all transactions relating to the insurance. If force be given to this provision in the policy, the plaintiff is barred from setting up Goggin’s knowledge of the true state of the title (conceding that he possessed it) to defeat the defence of a breach of warranty in that regard. It is urged by the respondent’s counsel that the “agency clause” has no application to a case like this in hand; or; to put it more directly, that this clause is inoperative and void as regards the case here presented. This position of the learned counsel has vindication under the ruling in Broadhead v. The Ly. Ins. Co. (14 Hun, 452); and in Chase v. The Peo. F. Ins. Co. (id., 456); also in Partridge v. The C. Ins. Co. (17 Hun, 95). We are also cited to Sprague v. The Hol. Pur. Ins. Co. (69 N. Y., 128), in support of this ruling. The question, however, was not in the Sprague Case. It was determined there that there was no warranty, and, consequently, no breach. The three cases in Hun, above cited, seem to be in direct conflict with Alexander v. Germania Ins. Co. (66 N. Y., 464); and with Rohrbach v. Germania Ins. Co. (62 id., 47), where it was expressly decided (in the latter, all the judges concurring, and in the former all concurring who took part in the decision) that this clause was operative, and precluded the assured from claiming, in a case like this, that the company was bound by the knowledge of its agent, through whom the policy was procured.

The three cases in this count were put upon the ground that the decision, in the more recent case of Van Schoick v. The Niag. Fire Ins. Co. (168 N. Y., 434), overruled Rohrbach’s Case, and Alexander’s Case, above cited. This, however, is a mistake. The “agency clause” was not in Van Schoiclc’s Case; and this fact is noted as a distinguishing feature by Judge Folder, in his opinion, in the latter case. (Pages 441-442.) But then comes Whited v. Germania Ins. Co., also in the Court of Appeals (cited in 19 Alb. Law Jour., 396), not yet reported in the regular series of reports, the decision in which, if there correctly rendered, susfains the three decisions of this court in Hun. It is there said of Rohrbach’s Case, and Alexander’s Case, distinguished and limited.’’ We can hardly be expected to know what the law is, on the subject under consideration, until we have the full text of the decision in Whited’s Case; and even then, as it now seems, there must remain a sharp conflict in the reported cases. If, howover, the conclusions above reached on other questions, in this case, are sound, we need not here trouble ourselves with this.

Judgment reversed, now trial granted, costs to abide the event, and reference discharged.

Learned, P. J., and Boardman, J., concurred.

Judgment reversed, new trial granted, reference discharged, costs to abide event.


author: Bocees, J.

text:
    SOPHIA P. GRAHAM, Respondent, v. THOMAS H. LUDDINGTON, Appellant.

      Tenancy bythecuHesy — seizin in fact in the wife necessary thm-eto — right of loife to sue alone — dowi-ess must keep clown quit-i-enfs on the land, — statute of limitations does not run against remainder-onan until the death of the tenant for life.

    September 6,1842, Henry Luddington died intestate, leaving him surviving a, widow and ten children, among whom were the defendant and the plaintiff, of whom the latter was then married and had children living. Subsequently a. partition was had, and certain land formerly owned by the intestate was set aside to the plaintiff’s mother for her dower, such premises being held under-a perpetual lease, subject to the payment of rent. In 1856, the widow and the defendant, of whom the latter then occupied the said land, permitted the rent to remain in arrear, and allowed the lessor to recover a judgment’ for the possession of the said land, in pursuance' of an agreement by which it was provided that the land should be subsequently conveyed to the defendant, which was done; the agreement being made with intent to deprive the plaintiff and the other heirs of Henry Luddington of their interest in the land. In 1873 the widow died. In 1875 this action was brought by the plaintiff to-recover her interest in the land and to have the said judgment and deed set aside-so far as it might be necessary to do so to attain that result.

      Held,, that the plaintiff, prior to the death of her mother, never had such a seizin, in fact, of the land as to constitute her'husband a tenant by the curtesy, or to give him any estate therein.
    That upon the death of her mother in 1873, she acquired an absolute right of' property therein the same as a, feme sole, and that it was not necessary that, her husband should join with her in an action to recover her share therein. That it was the duty of the dowress to keep down the rents accruing under-the lease, and that the judgment and deed, which were procured by the defendant, were void as against his co-tenant.
    That the plaintiff’s right of action did not accrue until her mother’s death, and was not barred by the statute of limitations. ( ■
    Appeal from a judgment in favor of the plaintiff, entered upon, the trial of this action, by the court, without a jury.
    Henry Luddington died September 6, 1842, intestate, leaving, surviving him, his widow, Jane Luddington, and ten children, among whom were the plaintiff and defendant, of whom the latter was married and had children then living; Henry Luddington was, at the time of his death, the owner of about 263 acres of land in the town of Bovina. Delaware county ; 215 acres of which he held under a lease in fee from Edward P. Livingston, which reserved, among other things, an annual rent charge of thirty-eight bushels and forty-five pounds of merchantable winter wheat, to be delivered to the lessor on the first day of May in each year.
    In August, 1843, Jane Luddington, the widow, having become the owner, by purchase, of the share of Joseph N. Luddington, one of the children, in the real estate of Henry Luddington, filed a bill in chancery for a partition in the said real estate between herself and the nine other children as tenants in common thereof, and for the admeasurement of her dower therein.
    Commissioners were appointed to make partition, by whom actual partition was made, in which they set apart to Jane Luddington, for her right of dower, the premises described in the complaint in this action.
    The portion set off' to the widow, and to each of the children, was made subject to such rents as the intestate, Henry Luddington, was bound to pay to the holder of the soil.
    In 1856, the rent upon the said premises being in arrear, the lessor commenced an action of ejectment against Jane Luddington aiid Thomas H. Luddington, the defendant in this action, to recover the possession thereof. No defence was put in, and upon the written admission of the defendants in that action of the truth of the complaint, judgment was entered in Delaware county clerk’s office, September 2, 1856, in favor of Clermont Livingston for the recovery of the possession of the premises and $16.37 costs.
    September 8, 1856, an execution or writ of possession was issued upon the judgment, and Jane Luddington and this defendant were dispossessed.
    November 10, 1856, the defendant purchased the land in question and other land of Clermont Livingston, paying him $2,500, taking a full covenant warrahty deed, in which Livingston covenanted that he was “ seized of a good and indefeasible estate of inheritance therein, clear of all incumbrances, subject, however, to any lease or leases made by the late Robert R. Livingston, or any person or persons claimind under or from him, and subject also to any incumbrances of whatever name or nature made or created by the lessee Or lessees of said premises or any part or parts thereof.”
    The rent had been permitted to remain in arrear under an agreement with the lessor’s attorney that the land should be reconveyed to Thomas Luddington ; he intending to deprive the plaintiff and the other heirs-at-law of Henry Luddington, of their interest in the land.
    The plaintiff knew of the re-entry, the recovery of the judgment, and dispossession, and execution of the deed, prior to January 1, 1858.
    The defendant was in possession of fifty-one acres of said land, claiming to own it, from November, 1856, down to the death of his mother, Jane Luddington, which occurred December 12, 1873, and has been in possession of them since that time.
    In June, 1875, the plaintiff demanded possession of the defendant of the undivided tenth part of the said fifty-one acres, and ho refused to give her possession, claiming that he owned it under his deed from Livingston.
    The plaintiff then commenced this action in equity to obtain a decree declaring the judgment of re-entry recovered by Livingston and the proceedings .thereunder and the deed from Livingston to the defendant fraudulent and void, as to her, so far as they divested or purported to divest her of her title to the said fifty-one acres, and that she be adjudged the owner of the undivided one-tenth part thereof and recover possession of the same.

      I. H. Maynard, for the appellant.

      Wm. Gleason, for the respondent.
   Bocees, J.

The learned judge, who decided this case at Special Term, shows very clearly in his opinion, written on that occasion, that the action was well brought by the plaintiff. Her husband never had possession of the premises in right of his wife, nor did he evre acquire the right of possession as tenant by the curtesy, for the reason that his wife, the "plaintiff, had only a seizin in law — never an actual seizen — such a seizin, in fact and in deed, as was necessary to constitute her husband a tenant by the curtesy. The plaintiff’s right of possession accrued on the death of her mother in 1873. This was long after the passage of the act known as the married woman’s act, by force of which she took an absolute right of property in herself as a feme sole. This, I think, is plainly shown in the opinion of Judge Foelett. There is one suggestion now made by the appellant’s counsel, which, perhaps, requires further comment. It is urged that there was a seizin in the plaintiff, following her father’s decease and before' dower was assigned to her mother, sufficient to sustain an estate-in the husband as tenant by the curtesy. But, as was decided in Lawrence v. Miller (2 N. Y., 245), cited by Judge Follett, after assignment, the seizin of the heir (here the plaintiff) was defeated ab initio, and the dowress was in of the seizin of her husband, as of the time when that seizin was first acquired. Again, as above suggested, a seizin to uphold the husband’s curtesy must be an actual seizin in the wife, with few exceptions, not necessary hereto be noted. (Ferguson y. Tweedy, 43 N. Y., 543.) This the plaintiff did not have. It is found that her mother was in actual possession from the death of her father until dower was. assigned. Now, it was not enough that the plaintiff had a vested right in the premises as heir. A person, who claims as heir or devisee, has only a seizin in law before entry; and if before entry a stranger enters, it is an abatement, not a disseisin. (3 Bl. Com., 167.) “In descents of laud, which are cast upon the heirs by the act of the law itself, the heir has not plenum dominium, or full and complete ownership, till he has made an actual corporal entry into the land.” (2 Bl. Com., 312.) So Sutherland, J., says in Jackson v. Johnson (5 Cow., 74, p. 98), “A person claiming by descent or devise has only a seizin in law before entry ; ” and further, that “ upon .such a seizin of the wife there could be no estate by the curtesy.” It is unnecessary to inquire whether the case would have been the same had the plaintiff acquired her right and title by purchase under a deed. If, then, the husband could have no estate by the curtesy until actual seizin by the wife, the action was well brought by the latter alone. On the decease of lier mother in 1873, the property came to her free from all claim by her husband, and she would hold it and could dispose of it by virtue of the married woman’s act, as if she were a feme sole.

The remaining question, whether the plaintiff’s right of action was barred by the statute of limitations, is more difficult of solution. But after consideration I am inclined to accept the reasoning and conclusions of Judge Follett, in his opinion, as sound in that regard. The question is, when did the plaintiff’s right of action on the facts stated in the complaint and found by the judge, accrue to her ? Her right of action here was her right to have possession of the lands ; that right did not accrue to her until her mother’s decease, in 1873. To that time she could claim nothing. To that time she was barred of no right by the recovery and deed sought to be set aside, or to be decreed inoperative against her. This precise question did not arise in any of the cases cited by the learned counsel for the defendant. Again, this was not a case where the remedy sought by the action must be administered by a court of equity ; for the plaintiff might have brought simple -ejectment, and in that suit have assailed the recovery. (Phillips v. Gorham, 17 N. Y., 270; Van Deusen v. Sweet, 51 id., 387.) If, then, the plaintiff’s right of action on the facts stated in the complaint and found by the judge accrued in 1873, the action was not barred by the statute of limitations.

It can hardly be disputed that it was the duty of the life-tenant, .and those claiming under her, to satisfy the accruing rents. (2 Scribner on Dower, chap. 30, pp. 23 to 31; also pp. 730 to 734; also De Witt v. Cooper, 18 Hun, 72, and cases cited). In conclusion, I am of the opinion that the judgment appealed from should be affirmed.

Learned, P. J., and BoardMan, J., concurred.

Judgment affirmed, with costs.

       The following opinion was written at Special Term :
      Follett, J.:
      Two legal objections ax-e raised by the defendant to defeat a recovery in this action,
      1st. That if a x’ight of recovery exists, the husband of the plaintiff is entitled to the possession of the lands, and he alone can maintain an action for their x-ecovex-y.
      2d. That an action for the recovery of the land is bari'ed by the statute of limitations. „
      Befox-e the married woman’s act (chap. 200, Laws 1848), if a wife had title to land, and was entitled to its possession, her husband was entitled to a life estate thex’ein during his own or the life of his wife, and to the rents and pi-ofits therefrom. If a child was not born alive, the wife’s estate upon her death, descended to her heirs free from her husband’s estate. If a child was born alive, her estate descended to her heirs, subject to the continuance of the husband’s estate during his life, which was called thereafter a tenancy by the curtesy, (Williams on Real Prop. [12th ed.], 223; 1 Wash, on Real Prop., chap. 9, § 1, paragraph 2, page 276 ; 2 Kent’s Com., 130.)
      During coverture, a husband might recover by action, possession of the wife’s land, though achild had not been born, his right not being dependent upon a tenancy by the curtesy having become initiate.
      A tenancy by curtesy is not initiated until the wife becomes entitled to the possession of the lands in which she has an estate. (4 Kent’s Com., 29; Williams on Real Prop. [12th ed.], 228 ; 1 Washburn on Real Prop., chap. 6, paragraph 24, page 135 ; Ferguson v. Tweedy, 43 N. Y., 543.)
      After assignment of dower the seizen of the heir is defeated ah initio, and the dowress is in of the seizen of her husband as of the time when that seizen was first acquired. (Lawrence v. Miller, 2 N. Y., 245.)
      It is very clear that a husband could not acquire, through his wife and the marital relation, a right which the wife, had she remained single, was not entitled to assert. In this case the plaintiff did not become entitled to the possession of the lands in suit until 1873, when, by force of the married woman’s act, they were freed from the husband’s life estate during the life of the wife.
      It has been repeatedly held that the married woman’s act is constitutional, except when it affects vested rights, and that it excludes the husband from all rights in his wife’s estate, except such as were vested at the date of its passage, though marriage was contracted before the act.
      Previous to the death of Jane Luddington the husband of the plaintiff cleai'ly had not a vested right in possession in this land, because his wife had none, neither had he a right vested in interest, because it was uncertain whether he would ever become entitled to the right to possess this land. His rights depended upon his surviving the dowress and upon his wife surviving her. (Cregier’s Case, 1 Barb. Ch., 598; Ferguson v. Tweedy, 43 N. Y., 543.) It was not vested, but contingent, depending upon two contigencies.

        “An estate is vested in possession when there exists a right of present enjoyment. '
      “ An estate is vested in interest when there is a present fixed right of future enjoyment.
      “ An estate is contingent, when a right of enjoyment is to accrue on an event which is dubious and uncertain.” (1 Fearne on Remainders, 2 ; 1 Preston on Estates, 62, 64; 4 Kent’s Com,, 202.) Under the married woman’s act the husband of the plaintiff has no present estate in the lands in suit, and is not a necessary party for their recovery.
      Is the action barred by the statute of limitations 1 The judgment was recovered, and the deed executed in 1856. Their existence was known to the plaintiff before 1838. The dowress died December 12,1878. This action was commenced July 31, 1875. The defendant insists that it is barred by the limitations prescribed by subdivision 6 of section 91 or section 97 of the Code.
      By this action the plaintiff seeks to recover, as one of the heirs of her father, the possession of her share of the lands assigned to her mother for dower.
      From the defendant’s wrong two separate legal injuries resulted to the plaintiff ; one immediately to her reversion, by clouding her title thereto; another, to her right of possession, which did not ripen into a cause of action until she became entitled to possession at the death of the dowress. When a right of recovery exists upon two separate grounds, the loss of one by lapse of time, does not impair the other. (Angel on Limitations, 375; Tyler on Ejectment, 117.)
      Adverse holding as against a reversioner does not begin to run until his right to possession accrues, and all persons previously holding, are presumed to have held under the particular estate. (Chadwick v. Broadwood, 3 Beav., 308: Tyler v. Watkins, 4 B. Mon., 561; Angel on Limitations, §§ 384, 385.) If the lapse of time has not barred a plaintiff’s rig-ht to recover land, the right to undo the wrongful acts of the defendant under which he claims to hold, is not barred. It is unnecessary to inquire whether when actions had names, this would have been called an equitable action or an action of ejectment. The distinction between legal and equitable remedies has been abolished, and rights which before the Code could only be recovered by resorting to two tribunals may now be recovered in an action.

        In determining which period of limitation applies, the subject matter of the action is made the test by the Code. The subject matter of this action is not the judgment nor the deed, but the land. The cause of the action is the wrongful withholding.
      Being for the recovery of real property it falls as to limitation of time in which it must be brought, within chap. 2, title 2, part 2 of the Code, which is entitled “ actions for the recovery of real property,” by which the limitation is fixed at twenty years. Sections 91 and 97 are embraced within chap. 3 of the same title ayd part which relates to and is entitled “ The time of commencing actions other-than for the recovery of real property,” and ai-e not applicable to this action.
      It was the duty of the dowress to keep down the rent and all charges, and save the heirs from a forfeiture. (2 Scribner on Dower, chap. 30, pp. 23-31, pp. 730— 734.)
      A tenant in common, buying- in an outstanding title, is deemed in law to have done so for the benefit of his co-tenants, and he will not be permitted to use a purchased title to exclude his co-tenants from their interest in the estate. (Weaver v. Wible, 25 Penn. St., 270; Lloyd v. Lynch, 28 id., 419.) Community of interest-produces a community of duty, and there is no real difference on the ground of policy and justice, whether one co-tenant buys up an outstanding incumbrance or an adverse title to disseize and expel his co-tenant. It cannot be tolerated, when applied to a common subject, in which the parties had equal concern, and which created a mutual obligation, to deal candidly and benevolently with each other, and to cause no harm to their joint interest. (Van Horne v. Fonda, 5 Johns. Ch., 407.) The defendant by his purchase gained no advantage over his co-tenant. Under his deed he stands in the place of the owner of the soil, and as between him and his co-tenant, the leasehold estate was not merged in the fee.
      The plaintiff is entitled to recover an undivided tenth part of the land, subject to the payment of a proportionate amount of the rent with mesne profits, to the; date of the trial. (Vandevoort v. Gould, 36 N. Y., 639.)


author: Bocees, J.:

text:
    MARIA B. MINICK, Respondent, v. THE CITY OF TROY, Appellant.

      Requirement that all claims he presented to the comptroller hefcn'e aetion brought— what is a compliance therewith — •Right of wife to recover for loss of services — Verdict of ¡wry — when not set aside as excessive.

    The city charter of Troy pro vid ed that no civil action, should be brought against the city “ by any person for inj uries to person or property, unless it appears that the claim for which the action was brought was presented to the comptroller, with an abstract of the facts out of which the cause of action arose, duly verified by the claimant, and that the comptroller did not, within sixty days thereafter, audit the same.” In^his action, brought to recover damages resulting from injuries occasioned by the neglect of the city to keep its streets in repair, §5,000 damages were claimed. It appeared that the plaintiff had presented her claim,' in due form and duly verified, to the comptroller, who had failed to audit it. In that claim she placed her damages at §10,000.

      Held, that though the amounts of damages demanded were different, yet the claims were identical and the evidence established a compliance with the statute. Although, in an action to recover damages for personal injuries, a married woman cannot recover on the ground of her inability to render services which are due or belong to her husband, yet she may recover for the loss of such as are personal to herself.
    In determining the personal loss to herself, evidence as to who composed her family, and as to what she did before the injury, and how she was affected by it, and as to the pain and suffering endured, is competent.
    In an action for personal injuries, a verdict of a jury will not be set aside as. excessive unless it manifestly appears to be the result of passion, partiality, prejudice or corruption.'
    An objection as follows: “ I desire to except to your honor’s statement to the jury of evidence, or supposed evidence, connected with the accident or causing it,” is too general and vague to be available as a ground of error.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and also from an order denying a motion for a new trial, made' upon the minutes of the justice before whom the action was tried.
    The action was brought to recover $5,000 damages for personal injuries received by the plaintiff from a fall from a wagon while driving on Congress street, Troy, on the 4th day of August, 1874, between five and six o'clock, p. m. The jury rendered a verdict for the plaintiff for $4,500.

      B. A. Parmenler, for the appellant.

      Edgar L. Fursman, for the respondent.
   Bocees, J.:

It is found, by the verdict of the jury, that the injury to the plaintiff, for which the action was brought, was occasioned by a hole in the- street, shown to have existed for a'considerable time prior to the accident. The jury have found, also, that for its existence or its continuance, the city, in its corporate capacity, was responsible. It is not disputed but that the city was bound, by law, to keep and maintain its streets in a reasonably safe condition for public use ; nor but that when there is an omission of this duty, by reason of which injury occurs to a traveler, it is liable therefor. Now, there was evidence, bearing on every question of fact in the case, necessary to establish the defendant’s liability; and there was no conclusive, controlling proof which will authorize the court to say that the verdict is against evidence. The verdict, therefore, concludes the defendant on this appeal on this branch of the case.

It remains, then, to be seen whether any error was committed in the course of the trial, either in the admission or rejection of evidence, or in the,charge of the judge, or in his refusal to charge, calling for a reversal of the judgment.

It is first insisted by the defendant’s counsel that compliance with .section 10, title 6 of the charter (chap. 129 of 1872), was not shown ; by which section it is provided that “ no civil action shall bo maintained against the city by any person for injuries to person or .property, unless it appears that the claim for which the action was brought was presented to the comptroller, with an abstract of the facts out of which the cause of action arose, duly verified by the claimant, and that said comptroller did not, within sixty days thereafter, audit the same.” The evidence shows that the plaintiff presented her claim, in due form, and duly verified, to the comptroller, and thar he omitted to audit or allow it within the time specified. In that paper the plaintiff placed her damages at $10,000. In this action the damages are placed at $5,000. On ■this discrepancy between the two claims the defendant’s counsel based an objection, that the claim in suit had never been presented to the comptroller for audit'. The objection, I think, untenable. The claims were, in fact, identical. By claim was here meant the facts on which the right to demand compensation Avere based. The statute should be construed with reference to the object and •end to be gained or secured by it. Its purpose was to have the facts and circumstances, attending the demand for compensation, .submitted to the city authorities before suit should be commenced, to the end that its justice might be determined, and, if well grounded, that compensation might be made without the expense of a suit at law. The mere fact that the damages were placed at different sums in the claim presented to the comptroller, and in the suit, did not make the claim for compensation, in any respect, different, both resting on the same facts and circumstances. There was no error in the ruling of the court on this subject.

It is next urged that the court erred in allowing evidence showing who composed her family, the plaintiff being a married woman. This evidence was admissible, as part of the history of her case, showing her surroundings and connected with her duties and habits of life, it tended to give such information as was competent to be considered bearing on her vigor of constitution and general health, in connection witty the other proof submitted. It was thus limited by the learned judge. As he expressly ruled, this evidence was received, “not for the purpose of showing loss to the husband by her inability to perform services for him, but merely for the purpose of showing the extent of the injury which she had sustained.” In this view, and with the additional proof of what she did do before the injury, and how she was affected by it, the evidence was competent.

It is next urged that the court improperly excluded evidence of the condition of the street at or near .the place where the injury occurred, but this was as to its condition years after the accident. So the judge ruled as follows: “ I hold that proving the condition of the water-bar four years after the accident is incompetent.” There was no evidence offered in connection with this rendering it competent, nor are we referred to any which had already been put in which would show it proper. None was alluded to at the time the ruling rvas made overcoming the objection that it was too remote to bo of any value.

It is next insisted that the court should have granted the motion for a nonsuit made on the entire case. The grounds urged were : (1.) That the action was brought without having first presented the claim to the comptroller. (2.) That there was no sufficient proof of negligence on the part of the defendant. (3.) That the proof showed contributory negligence on the part of the plaintiff, or of her son, who was driving the horse. (4.) That the city authorities had no notice or knowledge of the alleged hole in the street; and (5.) That no cause of action had been established. The first ground of nonsuit stated has been above considered, and need not be further commented on. As to the other grounds, it is sufficient to say that a case was very manifestly made for the consideration of the jury on each and all of them.

It is next urged that the judge was incorrect in his statement of the evidence in giving his charge ; and a general exception was interposed as follows : “I desire to except to your honor’s statement to the jury of evidence, or supposed evidence, connected with the accident, or causing it.” This exception was quite too general and vague to be available as a ground of error. The particular or particulars, as to which the mis-statements were supposed to have been made, should have been' pointed out, to the end that corrections might be made, if errors in that regard had occurred. Besides, the judge instructed the jury at once, on suggestion, in substance, that his recitals of the facts of the case was open to correction by them in accordance with their recollection, in case he had, in any respect, mis-stated the proof.

It is further insisted that the learned judge erred in charging that a recovery could be had by the plaintiff for damages arising from her inability to labor by reason of the injury, inasmuch as her services belonged to her husband. The judge was guarded in his ruling in this regard. "When evidence was offered bearing, by possibility on this subject, it was clearly intimated by the court that the plaintiff could not recover for services due to or belonging to her husband, and at the close of the charge, when the-defendant’s counsel again called attention to the subject, saying : “ Your honor stated to the jury that the plaintiff may recover in this action as brought for loss of time and inability to labor as formerly : I except to that,” the court remarked : “"If you mean by that covertly to make an exception, ¿upon the ground that she is a married woman, and her husband is entitled to the compensation for her services, I charge .the jury, explicitly, that she can only recover for such loss of service as she has sustained herself and towards herself.” Now, whatever the judge might have said on this subject in the course of his general charge, liable by possibility to have been misunderstood, hero was a clear and specific instruction given, by which the jury was to be governed in their deliberations, quite as favorable to the defendant as could well be claimed. It embraced only the past', excluded in fact and in strictness any loss to be sustained in the future, and limited the jury to a consideration of “ such loss of service as she has (had) sustained herself and towards herself; ” that is, such only, as was personal to her. Here, in effect, the jury were instructed that they should not allow such consequential damages as might result to the plaintiff’s husband from her inability to labor. In this case, unlike Brooks v. Schwerin (54 N. Y., 343), the plaintiff was engaged in no separate business or employment; still there remained to her many duties, privileges and services personal to herself, which were proper subjects for the consideration of the jury, in connection with the pain and suffering endured, in determining the damages to be awarded to her.

A request was made for a specific charge upon the question of contributory negligence. This related to the opportunity which existed for the plaintiff, and her son, to see and avoid the defect in the street. The court thereupon charged, substantially, as requested ; hence, error cannot be predicated upon the ruling in this regard.

And, finally, it is urged that the damages awarded by the jury are here excessive ; and that the judgment should be reversed, and a new trial be granted, for that reason. As I understand the evidence in this case, and considering the plaintiff’s circumstances and surroundings, I should be better satisfied had the verdict been one-half less than it is. - Juries are, in my judgment, habitually giving large — not to say extravagant — verdicts in this class of cases. Especially is this so where corporations are defendants. They should be considerate and fair; should be careful to be reasonable and just, especially as this subject is left to their judgment, without the right of review, save it can be plainly seen that their action was governed by improper influences, which can rarely be shown, even though the fact exists.

But this question of damages is for the jury, and their determination of it must be accepted as final, in the absence of fair inference of improper influence. It is the prerogative of the jury pass upon this subject, and their conclusion cannot be disturbed by the court on appeal in a case like this, unless it be in some way made to appear quite manifestly that the result was reached through passion, partiality, prejudice or corruption. (Bierbauer v. R. R. Co., 15 Hun, 564; Gale v. R. R. Co., 13 id., 1; Peck v. N. Y. C. and H. R. R. R. Co., 8 id., 286.) This rule has been adhered to with the utmost rigor in many of tlio older cases. (Coleman v. Southwick, Johns., 51, 52, and cases there cited.) In the case last referred to, Kent, Ch. J., says: “The question of damages was within the proper and peculiar province of the jury. It rested in their sound discretion, under all the circumstances of the case, and unless the damages are so outrageous as to strike every one with the enormity and injustice of them, and so as to induce the court to believe that the juiy must have acted from prejudice, partiality or corruption, we cannot, consistently with the precedents, interfere with the verdict. It is not enough to say that, in the opinion of the court, the damages are too high, and that we would have .given much less. It is the judgment of the jury, and not the judgment of the coui’t, which is to assess the damages in actions for personal torts and injuries.” Giving application to this rule, the judgment cannot be disturbed in this case, on the ground that the verdict was excessive.

All the grounds of error, urged by the learned counsel for the defendant, have been above considered, and in the order presented in his brief and points. We find no error in the record demanding a reversal of the judgment.

The judgment and order appealed from should be affirmed, with (¡costs.

Learned, P. J., and Boardman, J., concurred.

Judgment and order affirmed, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ROBERT LENOX BELKNAP, Respondent, v. ALLEN C. BEACH, as Secretary of State of the State of New York, Appellant.

      Manufacturing act, chapter 40 o/’lS4S —what a sufficient designation of business— A corporation may be formed to mine moi'e than one metal — when the cei'tifi~ cate sufficiently desci'ibes the place of business.

    A certificate, for the incorporation of a company, under chapter 40 of 1848, which states “ that the objects for which the said company is formed are as follows, namely, the mining of gold, silver and nead, in the territory of Utah,” is sufficient under section 1 of the said act.
    A certificate, which states, “ The said company is formed for the purpose of carrying on some part of its business outside the State of New York, namely, in Big Cottenwood District, Utah, and the name of the place in which the principal part of the business of the said company is to be transacted is in the city and county of New York,” is sufficient under-section 8 of chapter 29 of 1857.
    Appeal from an order made at Special Term, granting a peremptory mandamus against the Secretary of State, commanding him to file in his office the certificate of incorporation of a mining company, proposed to be organized under the name of “ The Kcsler Mining Company.”
    On the eighth day of February last, the certificate Avas presented to the secretary to be filed. The secretary, after examination, declined to file it, and returned it the same day.
    The portions of the certificate to Avhich the secretary objected are the second and sixth clauses. These clauses are as follows :
    II. That the objects for which said company is formed are as follows, namely, the mining of gold, silver and lead in the territory of Utah.
    YI. The said company is formed for the purpose of carrying •on some part of its 'business outside the State of New York, namely, in Big Cottomvood District, Utah, and the name of the place in which the principal part of -the business of the said company is to be transacted is in the city and county of New York.
    The secretary declined to file it, because it was vague, general .and indefinite, and gave a roving commission to mine for three separate and distinct kinds of business in the whole territory of Utah. Also, for the reason that said certificate did not show a purpose to carry on a separate kind of business, nor in any specified place, as contemplated by the act under which the company desired to form; ” and that, as he believed, the statute should be construed to limit corporations organized under it to some single kind of business at some specified place.

      A. SchoonmaJcer, attorney-general, for the appellant.

      It. W. De Forest, for the respondent.
   Bockes, J. :

The relator, and his associates, intending to organize a company with corporate powers under the act of 1848 (chap. 40), and its amendments, made and presented to the secretary of State, to be filed in his office, as the law requires, their proposed certificate of incorporation. The certificate was rejected by that officer on two grounds. (1.) That it was not sufficiently specific and distinct in its statement of the object and business purposes of the company ; and (2), hot sufficiently definite in its designation of the place out of the State where its business was to be conducted. It vas insisted that in these respects the certificate was not in conformity with the requirements of the law.

The statute referred to, provides for the formation of companies “forthe purpose of carrying on any kind A manufacturing, mining, mechanical or chemical business.” This language is in the disjunctive, thus authorizing an organización for the carrying on ,of business, having in view either of these purposes as its. auxiliary or means of producing results. Nor does section 20, which provides for extending the business of a company formed, or to be formed, to any other manufacturing, mining, mechanical or chemical business, “ confer the right to. combine any two or more of these general purposes.” This section leaves the purpose of the organization still to be limited to one of the genera); classes of business, designated in the act, as manufacturing; mininsT, mechanical or chemical. With a view to the maintenance of these distinctions in the business, to be carried on by the company, it is further provided that “ the objects, for which the company shall be formed,” shall be stated in the certificate — that is, that the certificate shall state the particular branch, or branches, of business to be carried on under one of the designated heads. A limitation of the business, in this regard, was required to be evidenced by a statement in the certificate. Still, the requirements of the law would be answered, both in its letter and spirit, by stating in due form, first, under what general head the business belonged; and, secondly, the branch or branches of business, falling under that head, which it was proposed to carry on. That it was intended to permit more than a single result to be attained from the business, if it was embraced within or came under one of the designated heads, is evident from the provision in section 20, which expressly confers .such rights. This section provides- for an extending of the business of a company already existing, or which might be thereafter formed under the act, to other business belonging to the same class; that is, so as to embrace, as an object and purpose of the -organization, some other business than that already stated in the ■charter or certificate of incorporation. If this result might be -secured by an addition to or an amendment of the charter, certainly the same end might be attained by proper statements in a mew or original charter. It would seem to follow that a company might be formed under the act, having for its purpose and object the mining of gold, silver and lead. Such was the u7cind” of mining business intended to be carried on. The statement in the ■certificate was, that the objects for which the company was ■formed were as follows : “ the mining of gold, silver and lead .and this statement, in my judgment, answers both the letter and ■.the spirit of the law.

Second. The act also required “ the names of the town and (county,” in which the operations of the company were to be (Carried on, 'to be stated in the certificate. This was the original provision, and doubtless contemplated operations within this State. In 1857 (chap. 29) an amendment was adopted, which declared or recognized the right, in a company formed under the act, to carry .on business out of the State. It provided that if the company so formed “ for the purpose of carrying on any part of its business in any place out of this State, the said certificate shall so state ; and shall also state the name of the town and county in which, the principal part of the business of said company within this State is to be transacted.”

Now, part of the business of tne company was to be carried on in a place out of this State. So it was requisite that this fact should be so stated in the certificate of incorporation. This was stated. It was stated that the mining contemplated in the Oertificate, was to be carried on in Big Cottonwood District, in the-ten’itory of Utah. This statement, as it seems, to me answers-the statute in its letter and policy. If the mining was to be carried on in this State, the name of the town would be a sufficient designation as to the particular locality. The statute manifestly contemplates only certainty in this regard to a common intent.. The precise, exact point of location was not required or expected to be stated. A town embraces considerable territory, often in our own State, with á moderately dense population, from thirty to fifty square miles. Thus it is seen that it was not necessary to be very particular in giving the place where the business was to be conducted. So such place, when out of the State, might-be given by equally general reference. We have nothing' in the-papers before us showing the extent of territory embraced in the Big Cottonwood District, whether more or less than is embraced in some townships in our own State. For anything that appears in the papers to the contrary, the place out of the State designated as that where part of the business of the company was to be carried on, is as definite and certain as Avould be the naming of a. town in this State. By analogy with what is declared by the act to be a sufficient designation of .place in this State, the statement in the certificate should be held to answer the requirements of the law. The suggestion that it is difficult for persons interested in companies under this act to obtain information, as to the action of the officers who conduct the business, isansAvered by the amendment to the act in 1854, chapter 201, which puts it in the power of such persons to obtain a statement from the treasurer, sufficient for all general and practical purposes.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Learned, P. J., and Boardman, J., concurred.

Order affirmed, with ten dollars costs and printing disbursements.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. FRANKLIN WATERS and others, as Commissioners of Highways of the Town of Hoosick, Appellants, v. JACOB A. DIVER, HARMON COLE AND CHARLES W. LARABEE, Referees on an Appeal brought by DANIEL CARROLL, Respondents.

      Order laying out a highway — when void for uncertainty.

    On an appeal from a decision of the commissioners of highways refusing to lay out a highway, the referees reversed such decision, and ordered a highway to be laid out “beginning at the highway leading from North Hoosick to Hoosick Falls, at a point near the old Chase garden, and nearly opposite the tenement' house owned by S. S. Stevens, running in a westerly direction to the Troy and Bennington railroad, and, crossing the same, runs parallel to and with said railroad to Hoosick Junction.”

      Held, that the order was erroneous, and should be reversed, for uncertainty in the description of the highway directed to be laid out.
    Appeal from an order made at Special Term, affirming on certiorari the proceedings before and decision of the referees, reversing the determination of the commissioners of highways, and directing a highway to be laid out in the town of Hoosick.
    The appeal was taken from a decision of the commissioners-refusing to lay out the highway.

      It. A. Parmenter, for the appellants.

      Edgar L. Eursman, for the respondents.
   Bockes, J. :

We are of, the opinion that the decision and order of the referees are erroneous, not to say, absolutely void, because of uncertainty in the description of the highway directed to be laid out. The description in the order made by the referees is as follows : “ Beginning at the highway leading from North Hoosick to Hoosick Falls, at a point near the old Chase garden, and nearly opposite the tenement-house owned by S. S. Stevens, running in a westerly direction to the Troy and Bennington railroad, and crossing the same, runs parallel to and with said railroad to Hoosick Junction.” This description is not aided by anything in the record making it more definite or certain. Now, conceding that the action of the referees should be deemed, in all respects, as an original proceeding, in so far as it rested with them to determine the merits of the application for the proposed road. (Comm’rs v. Judges of Orange, 13 Wend., 432; People ex rel. Bodine v. Goodwin, 5 N. Y., 568; People ex rel. Hubbard v. Harris, 63 id., 391; People ex rel. Bailey v. Sherman, 15 Hun, 575), yet, if laid by them, its location should be made certain in or by the order, both as to line and width. In this they would proceed in the same manner as commissioners are directed to proceed in laying out a road. The statute requires that when the latter shall lay out any road, they shall cause a survey to be made of such road, and shall incorporate such survey in an order to be signed by them, and to be filed and recorded in the office of the town clerk. (2 R. S., 151, § 90 [6th ed.]; and it is further provided that all public roads shall be laid out not less than three rods wide. (§ 145, p. 161.) The order made by the referees is indefinite and uncertain, in every particular. It does not comply with the requirements of the statute in any fair sense. There was no survey of the road laid by the referees. Not only is there no width expressed in it, but it is wholly uncertain, both as to the starting point and terminus, nor is the line given by courses and distances. If not entirely straight, then the latter were necessary to the description. It is seen that a record in the toAvn clerk’s office is to be made from the order. The necessity for completeness and certainty in the order is quite apparent. It should be so definite in description that it could be used against the commissioners as the foundation for a mandamus, in case they should be recalcitrant. If the starting point, courses, distances and terminus had been given as a centre line, perhaps the width, to wit, three rods, would have been inferred. (Lawton v. Comrs., 2 Caines, 178 ; The People ex rel. McFarland v. Comrs., 1 Cow., 23.) We do not intend, however, here to say this would be so. It will be seen, on reference to the cases cited, that the roads there were in fact described with entire certainty as to location, courses, distances, and objects or monuments. In the cases under examination, the location of the road is not made certain in any respect.

We are of the opinion that the order of the Special Term, affirming the order of the referees, should be reversed, as should also the order of the referees brought up by the certiorari.

Costs should also be awarded against Daniel Carroll, who instituted the proceedings on the appeal, from the order of the commissioners.

Order of the Special Term, and of the referees, reversed, with costs.

Learned, P. J., and Boardman, J., concurred.

Order of Special Term and reference reversed, with costs against Carroll.