author: Hardin, P. J,

text:
    People of the State of New York ex rel. John Navagh and James A. Milne, Resp’t, v. William A Frink and Robert McNaught, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1886.)

      1. Arrest—Warrant of — Against persons unlawfully confining a child—What must be stated in it when issued under Code Civil, Pro., § 2054—What a felony within Penal Code, § 211
    The relators were arrested in the city of Oswego hy the defendants and held hy virtue of a warrant issued hy a justice of the supreme court, who resided in the city of New York The warrant commanded the defendants, who were named in the warrant to make the arrest. It was alleged that Eugenia Meeham, a child under twelve of age, was held in unlawful con fmement and custody by one John Navagh and one J A. Milne in the city of Oswego * * * of which child, “ theNew York Society for 1lie Prevention of Cruelty to Children is the lawful guardian duly appointed," etc. It also appeared that Navagh and Milne had kidnapped and still caused the child to he secretly confined in vi< lotion of the Penal Code, § 211, and of the rights of the guardian of the child It was stated in the-warrant “That there is good reason to believe that the said child will he carried out of the state by or will suffer irreparable injury at the hards of the said John Navagh and the said J A. Milne before said child can he-relieved hy the issuing of a habeas corpus or certiorari ” It also recited that it satisfactorily appeared to the officer issuing the warrant, “that the said child Eugenia is held in unlawful confinement and custody by the-said John Navagh and the said J A- Milne " Feld, that the warrant, charged a felony against Navagh and Milne under Penal Code, § 211; that all the tacts and allegations requisite to bring the case within Code Civil ' Pro | 2054, which authorizes a warrant are found in the warrant
    2. Same—Before whom* the officer should take prisoner under Code Civil Pro , § 2057.

      Held, that it was the duty of the officers receiving the warrant to carry the prisoners before the magistrate who issued it, to the end that such proceedings as are authorized hy Code Civil Pro , 2057, might he had and to-the end that he might he examined, committed,- hailed or discharged by the]udge as in other criminal cases of the same nature
    3. Same—What justice has jurisdiction—On whom notice of return OF HABEAS CORPUS MUST BE SERVED-CODE ClVIL PRO , § 2038.
    The prisoners were discharged on a habeas corpus issued by a justice of the supreme court residing in the city of Oswego It appeared chat no notice of the time or place of the return of the habeas corpus was given to the attorney, whose name was indorsed upon the warrant, nor to the district attorney of the county where the habeas eoipus was issued. Held, first, that the magistrate who issued the warrant had exclusive jurisdiction (except as provided in Code Grim. Pro., § 164), second, that the discharge-of the prisoners without notice to the district attorney of Oswego county, was irregular under Code Civil Pro., § 2038.

      S. B. Mead,, district attorney of Oswego county, and. Ethridge T. Gerry, for app’Its; W. A. P.oucher and William Tiffany, for resp’ts.
   Hardin, P. J,

From the papers before us it would appear that Eugenia Meehan was alleged “ to be held in unlawful confinement and custody by one John ‘Navagh and one J. A. Milne, in the city of Osweg’o, * * * of which child ” the New York Society for the Prevention of Cruelty to Children is the “lawful guardian, duly appointed such by the supreme court of this state by order thereof duly made and entered.”

It also appears that the child was under twelve years of age, to wit, three years and five months, and that Navagh and Milne ‘ ‘ are not, nor is either the lawful guardian of such child or entitled to its custody, care or control, and that said child was seized and taken possession of by them on the death of its mother without any warrant or authority of law, and that they refused to deliver said child to said society.” ' ©

It also appears that Navagh, with the counsel and assistance of Milne, “ unlawfully, feloniously and willfully did seize, confine, inveigle and kidnap the said child with intent to cause her, without the authority of law, to be secretly confined within this state, and did then and there unlawfully, feloniously and wilfully lead, take, entice awray and detain the said child, with intent then and there to keep and conceal said child from the persons having the lawful care and control thereof, in violation of the provisions of sction 211 of the Penal Code of the state of New York.”

And it appears also upon the papers before us that it was alleged that said child, viz: “ Is now by the said John Navagh and the said J. A. Milne secretly confined, kept and concealed as aforesaid in violation of the legal rights of said society as the lawful guardian of said child.”

It appears also that it was stated in the warrant so issued by a justice of this court, viz.: “ That there is good reason to believe that the said child will be carried out of the state by, or will suffer irreparable ■ injury at, the hands of the said John Navagh and the said J. A. Milne, before said child can be relieved by the issuing of a habeas corpus or certiorari.” It was also recited in the warrant, viz.: It satisfactorily appears to the officer issuing the warrant “that the said child Eugenia is held in unlawful confinement and custody by the said John Navagh and the said J. A. Milne.”

According to the tenor of the warrant and the return made to the writ of habeas corpus, it would seem that the warrant was issued in pursuance of section 2054 of the Code of Civil Procedure. That section authorized the issuance of the warrant and the arrest of Navagh and Milne. That section provides fór a warrant of the character of'the one now before us. It also authorized the direction of such a warrant to a “person specially designated therein,” and. commanding him to take and forthwith bring before the court or judge the prisoner, to be dealt with according to law. Proceedings under that statute are criminal in their nature. People v. Gilmore, 26 Hun, 1; S. C., affirmed, 88 N. Y., 626.

In section 211 of the Penal Code, defining the crime of kidnapping, it is provided that a person who willfully leads, takes, entices away or detains a child under the age of twelve years, with intent to keep or conceal it from its parent, guardian or other person having lawful care or control thereof, * * * is guilty of -kidnapping, and is punishable by imprisonment for not more than fifteen years.

We are of the opinion that the warrant before us charged a felony against Havagh and Milne under the section from which we have quoted, and that all the facts and allegations requisite to bring the case within section 2054 of the Code of Civil Procedure, which authorizes a warrant, are found in the warrant under which Havagh and Milne were arrested. It was the duty of the persons who received the warrant for execution to take the prisoners therein named before the judge issuing the warrant. Code of Civil Pro., § 2056.

It is provided in that section that wherever it appears that the “person detaining the prisoner” is thus taken before a judge in virtue of such a warrant, that the person “must make a return in like manner, and the like proceedings must be taken as if a writ of habeas corpus had been issued in the first instance.” It is further provided by section 205Y that the person thus arrested “is entitled to be examined, and must be committed, bailed or discharged by the court or judge as in any other criminal case of the same nature.”

We are of the opinion that it was the duty of the officer or officers receiving the warrant to carry the prisoners before the magistrate who issued it, to the end that such proceedings as are authorized by the section to which we have alluded might be had, and to the end that they might be “examined, * * * committed, bailed or discharged by * * * the judge as in other criminal cases of the same nature.” The grade of the crime charged in the warrant was that of felony. It was within the province of the judge who issued the warrant to deal with the prisoner’s offense named in the warrant. We think this sufficiently appears from, the tenor of sections 2054, 2055, 2056, 205Y of the Code of Civil Procedure.

Section 205Y clearly authorized the persons charged under the previous sections, which we have just quoted, to be dealt with in the same manner as “in any other criminal case of the same nature.” As stated, the nature and grade of the offense charged was that of a felony. By section 158 of the Code of Criminal Procedure it is provided, viz.: If the crime charged in the warrant be a felony, the officer making the arrest must take the defendant before the magistrate who issued the warrant, or some other magistrate in the same county, as provided in section 164.

Section 164 of the Code of Criminal Procedure seems to contemplate the taking of such prisoners before the magistrate who issued the warrant, as it provides that if the magistrate who issued the warrant “be absent or unable to act,” then, in that case, the prisoner is to be taken before the nearest or most accessible magistrate in the same county. People ex rel. Sichel v. Chapman, 30 How., 202; People v. Clews, 77 N. Y., 39.

If the prisoners had been arrested for a misdemeanor, it seems that it would have been competent for a magistrate, residing in the county in which the arrest was made, to have let the prisoners to bail. People v. Chapman; People v. Clews, supra.

We are of the opinion that the magistrate who issued the warrant had exclusive jurisdiction (except in case of his absence or inability to act), and that a contrary construction would frustrate and defeat the object and intent of the legislature in enacting the exceptional provisions found in section 2054 of the Code of Civil Procedure.

It seems no notice was given to the attorney, whose name was indorsed upon the warrant, nor to the district attorney of the county where the habeas corpus was issued. Section 2038 of the Code of Civil Procedure forbids a discharge of a person on a writ of habeas corpus, where he is held by virtue of a mandate, “until notice of the time when and "the place where the writ is returnable, or to which the hearing hag been adjourned, as the case may be, has been either personally served eight days previously or given in such other manner and for such previous length of time as the court or judge prescribes.” •

- “Where the mandate was issued or made in a civil action or special proceeding to the person who has an interest in continuing the imprisonment or his attorney. In every other case to the district attorney of the county within which the prisoner was detained at the time when the writ was served.”

Inasmuch as the writ of habeas corpus in this case was not issued in a civil action or a special proceeding, but rather in a criminal action (People v. Gilmore, 88 N. Y., 628), and as section 2057 provides that the discharge or bailing or committal shall be “as in any other criminal case of the same nature,” it would seem that the discharge of' the prisoners, without notice to the district attorney of the county of Oswego, was irregular.. Code Civil Pro., §§ 2038, 2057; People ex rel. N. Y. Soc., etc., v. Gilmore, 88 N. Y., 628.

There is nothing before us in the appeal book to show that any question was made before the justice who granted the discharge as to the genuineness of the warrant, and we think it is too late to raise the question upon this appeal, as it appears by the clerk’s certificate forming a part of the appeal papers herein, that he has compared the copy of warrant certified to us with the original on file in his office, and that copy appears to be issued by a justice of this court, residing in the city of New York, clothed with all the powers given by section 2054 of the Code of Civil Procedure. Whether or not the persons named in the warrant charged with a felony should be admitted to bail rested in judicial discretion, and our views already expressed lead us to the conclusion that the exercise of that judicial discretion should have been by the magistrate issuing the warrant. Prom note 38 in People v. McLeod (3 Hill, 663), as somewhat appropriate to the question involved here, we quote, viz.: “It is, therefore, believed that the rules of the common law, under which one superior court rarely allowed itself to interfere with the process of another, still hold their full sway/and should, indeed, be allowed a peculiar force when the power of a single magistrate is invoked.”

Again, it was said iñ note 45 to the same case, at page 613, viz.: “Valid process alone, both in criminal and civil cases, prima facie renders it obligatory _ on the court or officer to remand. It lies with the parties suing out the writ to show affirmatively that it is insufficient to authorize his detention * * * The people are, therefore, under no obligation to produce evidence even in cases where this may be looked into. The accused who appeals by habeas corpus must, at his peril, show that he has béen committed upon insufficient evidence.

We find nothing inconsistent with this in section 553 of the Code of Criminal Procedure, nor does section 190 of the Code of Criminal Procedure contain any provision inconsistent with the views already expressed. Under that .section had the prisoners been taken before the magistrate who issued the warrant, they might have waived an examination and at once elected to give bail. Code of Criminal Procedure, §§ 188, 189, 190 and 210.

We are of the opinion that the recital of the facts found in the warrant- is insufficient, and that it ought not .to be said upon this appeal that the same was issued without proper proofs to confer jurisdiction upon the officer issuing, the same. We are of the opinion that the order appealed from should be reversed.

Boardman and Fóllett, JJ., concur.


source: Caselaw Access Project

author: Fóllett, J.

license: Public Domain

text:
    Daniel L. Couch, as Assignee in Bankruptcy of Robert Millard, et al., App'lt, v. George W. Millard et al., Resp’ts.

      (Supreme Court, General Term. Fourth Department,

      Filed July, 1886.)

    1, Costs—In equity actions—Discretion op trial court in granting —Revtewable on appeal.
    M. U. & Co. executed a chattel mortgage to defendants on December 1, 1875; on June 27, 1876, W. U. & Co filed a voluntary petition in bankruptcy, upon which they were adjudged bankrupts December 26, 1876, and plaintiff was, on March 12, 1877, appointed assignee in bankruptcy. The defendants, on April 29, 1876, began the foreclosure of their mortgage by taking possession of the chattels, and sold them at public auction and at private sale to various purchasers, and on various occasions, prior to June 1, 1877. Defendants purchased many of the chattels. Defendants also seized and sold a quantity of moldings owned by said bankrupt firm, upon which defendants had no valid claim. In an action brought to recover the avails or value of the chattels seized and sold by the defendants, upon the ground that the moldings were Stized and sold without color of authority, and that the mortgage under which the other chattels were sold was fraudulent and void, the referee found that the defendants wrongfully seized and sold the moldings 'without authority; also that the mortgage was valid A judgment was ordered for the plaintiff, with cysts to both parties out of the recovery. The plaintiff appealed from that part of the judgment allowing defendants costs, and from the order granting additional allowance. Meld, that the discretion of a trial court in awarding costs may be reviewed upon an appeal from the judgment.
    2. Same—Case where costs cannot be awarded to both sides.

      Held, that assuming that the action is an equitable one, and that costs may be awarded or withheld pursuant to Code Oiv. Pro., § 8230, this was not a case in which both sides can be awarded costs. The action is not one arising out of a trust or common fund.
    Appeal from so much of a judgment, entered upon the report of a referee, as awarded costs to the defendants.
    The notice of appeal stated that the appellant intended to bring up for review on said appeal the order giving an extra allowance.of costs in said action to the defendants.

      George W. Parklmrst for appl’t; D. W. Guernsey, for resp’ts.
   Fóllett, J.

December 1, 1875, Millard, Underwood & Go. executed a chattel mortgage to defendants which covered a large quantity of lumber, and two or more mills and the machinery in them. June 27, 1876, Millard, Underwood & Co. filed a voluntary petition in bankruptcy, upon which they were adjudged bankrupts December 26, 1876, and March 12, 1877, the plaintiff was appointed assignee in bankruptcy. April 29,1876, the defendants began the foreclosure of their mortgage by taking possession of the chattels, and sold them at public auction and at private sale to various purchasers and on various occasions, prior to June 1, 1877. Defendants purchased many of the chattels. Defendants also seized and sold a quantity of moldings owned by said bankrupt firm upon which defendants had no valid claim.

This action was brought to recover the avails or value (it is difficult to say which) of the chattels seized and sold by defendants, upon the ground that the moldings were seized and sold without color of authority, and that the mortgage under which the other chattels were sold was fraudulent and void. The referee found that defendants wrongfully seized and sold the moldings without authority, and that they were worth $2,611.37. He also found that the mortgage was valid, but found that defendants had in their hands $1,892.98, derived from the sale of the mortgaged chattels, over and above all of their claims arising under said mortgage. The items of recovery are as follows :

Moldings sold................................. $2,61137
Surplus on sale of mortgaged chattels.......... 1,892 98
Total in defendants’ haúds................. $4,504 35
Interest. .......................... 2,304 62
Total recovery............................ $6,80*8 97

A judgment was ordered for the plaintiff for $6,808.97, with costs to both parties, payable out of the recovery.

The plaintiff’s costs and disbursements were taxed at...................................;. $390 45
The defendants’ costs and disbursements were taxed at.................................... $767 76
Additional allowance granted December 12, 1885, 780 00
$1,547 70

February 2, 1886, judgment was entered adjudging that the plaintiff recover the amount found due by the referee and interest; that the costs of both parties be paid from the recovery, the defendants’ to be set off against the amount of plaintiff’s recovery, and that the plaintiff have execution for the remainder. The plaintiff excepted to that part of the referee’s report allowing defendants’ costs, and appealed from that part of the judgment allowing defendants’ costs and from the order granting additional allowance.

The discretion of a trial court in awarding costs in an equitable action may be reviewed by the general term upon an appeal from the judgment. Stevens v. Veriane, 2 Lans., 90, 93; Law v. McDonald, 9 Hun, 23; Woodford v. Bucklin, 14 id., 444; McLean v. Stewart, 14 id., 472; Rosa v. Jenkins, 31 id., 384. Such was the rule before the Codes. Winslow v. Collins, 3 Paige, 88; Buloid v. Miller, 4 id., 473.

The question arising upon this appeal is discussed by both sides upon the theory that the action is an equitable one, and that costs may be awarded or withheld, pursuant to section 3230 of Code of Civil Procedure. Assuming this to be so, we do not think it is a case in which both sides can be awarded costs. This is not an action arising out of a trust or common fund, but is simply an action between two hostile parties to determine their rights to certain property taken by the defendants, who in their answer denied having any money or property belonging to plaintiff, and averred that the debt, interest and expenses exceeded, by a large amount, the sum realized by defendants from the sale of the property. While the section of the Code provides that costs in equitable actions are within the discretion of the court, still this discretion must be exercised in accordance with the rules and well settled principles applicable to the subject, and they cannot be awarded or withheld as suits the caprice of the trial court. Law v. McDonald, supra, 23, 26; Brooks v. Byam, 2 Story C. C., 553; 2 Barb. Ch. Pr., 322, 323; Id. [2d ed.], 858. The general rule is that the successful party, although he may be denied costs, never pays them. 2 Dan. Ch. Pr., [3d Am. ed.], 1483; 2 Barb. Ch. Pr., 323; Id. [2d ed.], 859. When a creditor recovers a debt in an equitable action, he recovers costs also, unless special and strong reasons to the contrary prevent. Hunn v. Norton, Hopk., 344; May v. Biggenden, 24 Beav., 207; Jeffryes v. Agra, etc., Bank, Law, R., 2 Eq., 674; Hill v. South Staffordshire Ry. Co., Law R., 18 Eq;, 154; 2 Barb. Ch. Pr., 322; Id. [2d ed.], 857. When the action is not solely for the recovery of a debt, and both parties claim more than they are entitled to, each succeeding in part, neither is entitled to costs against the other. Crippen v. Heermance, 9 Paige, 211; Caldwell v. Leiber, 7 id., 483; Righter v. Stall, 3 Sandf. Ch., 608; Saunders v. Frost, 5 Pick., 259; Fairchild v. Hunt, 14 N. J. Eq. (1 McCarter), 367; Cullingworth v. Loyd, 2 Beav., 385; Law v. McDonald, supra.

Two issues are raised by the pleadings and were contested before the referee: First, the plaintiff’s right to recover for the property described in and sold under the mortgage; second, for the conversion of property not described in the mortgage. Upon the first issue the plaintiff succeeded in part and wholly succeeded on the second, which brings the case within the rule laid down in Law v. McDonald, supra.

We know of no authority, statutory or judicial, authorizing an award of costs to an unsuccessful defendant payable out of plaintiff’s recovery in an action in which the plaintiff recovered, as damages, a sum of money which a defendant claimed to hold as his own.

‘" It was the rule of the civil law that victus victori in expensis condemnatus est, and this is the general rule adopted in the court of chancery, as well as in courts of law, at least to the extent of throwing it upon the failing party to show the existence of circumstances to displace the prima facie claim to costs given by success to the party who prevails.” 2 Dan. Ch. Pr. (3 Am. ed.), 1461; 2 Barb. Ch. Pr., 322; Id. [2d ed.], 857; Saunders v. Frost, 5 Pick., 259; Clark v. Reed, 11 id., 446. We fail to find any circumstances in this case justifying an award of costs to the defendants payable out of a sum of money which they are adjudged to owe the plaintiff, and which they refused to pay, denying all liability.

The learned judge, who granted the order for an additional allowance, held that the special term had no authority to review the decision of the referee as to the question of costs, and granted the additional allowance upon the theory that it was a proper case, provided defendants were entitled to costs, which question he could not and did not consider. The defendants not being entitled to costs, the order granting them an additional allowance necessarily falls.

The order granting an additional allowance is reversed, and the judgment modified by striking therefrom the clause awarding costs to defendants.

Boardman, J., concurs; Hardin, P. J., not sitting.


author: Hardin, P. J. Follett, J.

text:
    Standard Wagon Co., Resp’ts, v. Henry E. Nichols, as Assignee of McCully & Co. et al., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1886.)

    1. Contract of sale—Conversations of agents as to terms—When not in contravention of terms of written contract admissible in EVIDENCE.
    P. McC. and E. McC., copartners, doing business under the firm name of McC. & Co., in January, 1884, ordered of the plaintiff, by written order, certain carriages. By the order they agreed to pay freight and hold the goods on consignment, storing them safely free of expense to the plaintiff, and to-sell on its account on the sale, remitting cash at the prices specified, and if all the vehicles were not sold on or before November 15, 1884, to purchase any of them remaining on hand at that time, giving their acceptance for the same at ninety days from that date. In February, May and June, 1884, other articles were consigned to McC. & Co. A bill accompanying the May consignment, saying that the goods were consigned to be paid for as sold, and goods on hand November 1, 1884, to be purchased by cash, and that of June was accompanied by a bill, in substantially the same language. In November, 1884, McC. & Co. made a general assignment for the benefit of creditors to the defendant, H. M,, who, qualified as assignee, and entered upon his duties as such, receiving assets of the firm. Held, that conversations between the agents of the parties prior to the orders given as to the arrangement entered into in consigning the property to the defendants, and not varying any written contract between the parties, were admissible.
    2. Same—Check—Receipt of—Does not operate to transfer owner' SHIP OF GOODS ON SALE UNTIL PAYMENT.
    On November 10, 1884, McC. & Co. had sold goods not theretofore settled for, amounting to $218.97; to meet which sum, the plaintiff’s received from McC. & Co. a check which was dishonored upon presentment, and has never been paid. Held, that the delivering of the check, and giving a receipt therefor, was not an extinguishment of the original relation of the parties, and was not intended to, and could not operate as such until its payment. That the moneys arising from the sale cf goods and represented by this check were received by McC. & Co. for goods belonging to the plaintiff, improperly mingled with their assets and retained by them to the making of their assignment, and that to that extent the assets that passed to the hands of the assignee were augmented by moneys rightfully belonging to the plaintiff, and that the assets in the hands of the assignee were impressed to that extent with a trust in favor of the plaintiff. Follett, J., dissenting.
    S. Same—Payment by note in pursuance of terms of contract operates TO TRANSFER OWNERSHIP OF GOODS ON SALE ALTHOUGH NOTE IS DISHONORED.
    On the same occasion it was ascertained that there remained unsold goods to the amount of $153.76, and for that sum the plaintiff received defendant’s note, which was also dishonored at maturity. Held, that the giving of the note in pursuance of the arrangement between the parties operated as a transfer of the property to McC & Co.

      H. E. Nichols in person, and I. M. Dada, for app’lt Persis McCully; George W. Bradner, for resp’ts.
   Hardin, P. J.

Wesley McCully, the husband of Persis McCully, and the father of Edward McCully, was shown by the evidence tq be the agent of McCully & Co., having general charge and the management of their business, and had the principal transactions with the plaintiff with respect to the property in question. The fact that he was not a member of the firm was not known to the plaintiffs at the time they dealt with the firm.

Compton Ferguson was called as a witness for the plaintiff, and said that he was agent for the plaintiff at and prior to the date of the order of January 25, 1884, and also said that he had a conversation with Wesley McCully “about the property to be shipped to him.” The conversation was before this order of January 25, 1884, was made concerning the consignment of goods to McCully & Co. to be sold, ana he was asked to state the conversation. That question was objected to by the defendants as incompetent and improper, such conversation having been merged, in the written contract. The objection was overruled and the defendants excepted. The witness answered: “ Plaintiff was to let him have these goods on consignment; he was to handle these goods on commission; that he would order from time to time as he sold out; he would order to take the place of the goods sold; this is the substance of the agreement with him previous to the "writing out this order for the .goods; he was to handle the Standard Wagon Company’s goods on consignment and he was to order other goods as he sold out; 1 never had any other or different contract with him except that one; subsequent to this conversation I sent him goods from time to time as he ordered them, and I think he sometimes telegraphed for goods; he was riot limited as to price at which he was to sell; they were billed to him at a certain price; * * * I supposed. Wesley McCuliy was a member of the firm. • I knew no one else in the business as a member of the firm” We are of the opinion that no error was committed in receiving the evidence:

First. So far as the consignment of January twenty-fifth was concerned, it was proper to show that after the plaintiff received that order the goods were furnished to McCuliy & Co. While that order indicates the arrangement under which the property was received, and could not be contradicted by oral evidence, still it was admissible to show that after the reception of that order the property was shipped to McCully & Co. The bill of February 21, 1884, stated that the goods were consigned to be paid for as sold. So, too, the bill of goods of May nineteenth stated: “ Consigned to be paid for as sold.” The same is true of the bill of June 9, 1884. We think the evidence was competent to show that the property was delivered to McCully & Co. under the arrangement entered into stated by the witness, and that the oral evidence did not tend to contradict or vary any written contract existing between the parties with respect to the goods.

Second. It appears by the evidence that on the 10th of November, 1884, the agent of the plaintiff was at Fulton, and ascertained the state of affairs between the plaintiff and the firm of McCully & Co. At that time it appeared that McCully & Co. had sold goods not theretofore settled for, amounting to $218.97. To meet that sum the plaintiffs received from McCully & Co. a check for $218.97. The check when presen led was not paid. It never has been paid. The delivering of that check and giving a receipt therefor was no extinguishment of the original relation of the parties, was not intended and could not operate as such until .the check was paid. Schemerhorn v. Loines, 7 Johns., 312. On the same occasion it was ascertained that there remained unsold goods to the amount of $153.76. For that sum the plaintiff received a note dated November 1st, at three months, for $153.76, and subsequently, in September, rendered a statement that they had received such a note. The note was not paid at maturity, and was held by the plaintiff at the time of the commencement of this action.

We are of the opinion that inasmuch as the referee found, as a matter of fact, that the plaintiff did not rely on any false or fraudulent representations of any member of said firm of McCully & Co., or of any managing agent of said firm in selling the said goods to said firm, that it must be assumed that the goods, which were represented by the note of $153.76, were purchased in pursuance of the arrangement between the parties that goods that remained unsold in November should be purchased by McCully & Co. and settled for by the giving of a note, and that the giving of the note, in pursuance of the arrangement, indicated by the evidence between the parties, operated to transfer the goods to McCully & Co. for the note given on the occasion of the adjustment.

In the absence of any finding of fraud, we think it but fair to assume that that was a purchase of the goods settled for by the note, and that McCully & Co. became the owner of the goods, and the plaintiff the owner of the note upon the consummation of the settlement in November, 1884. We are also of the opinion that the moneys arising from the sale of the goods, which are represented by the amount included in the check of $218.87, were received for the goods belonging to the plaintiff, and that McCully & Co. improperly" mingled them with the assets and retained them down to the time of making the assignment, and that to that extent the assets that passed to the hands of the assignee are swollen by moneys that rightfully belong to the plaintiff, and when the assignee received such assets the moneys to the extent of $218.97 were impressed with the trust in favor of the plaintiff. Those moneys were received by the firm of McCully & Co. in a fiduciary relation, and the mixing them with other funds by the 'firm ought not to deprive the plaintiffs of a charge upon the mixed funds.

In note to Hooley v. Gieve (9 Abb. N. C., 42, 43), it is said, viz.: “Where any person holding money in a fiduciary relation, mixes it with his own, the person for whom he holds it has a charge upon the mixed fund.” Defendant Nichols is not a bona fide purchaser or holder of the funds in which the plaintiff, as cestui que trust, was interested. Hooley v. Gieve, 9 Abb. N. C., 29; S. C. 9 Daly, 104. So far as the referee’s report applies to the $218.97, we think Ms conclusions are correct and should be sustained. If these views prevail, the judgment may be modified accordingly.

Judgment reversed and new trial granted, with costs to abide the event, unless the plaintiff shall stipulate to reduce the damages to $218.97 and interest thereon from the 10th day of November, 1884, to the date of the referee’s report, August 8, 1885, in which case the judgment so modified is-affirmed, without costs to either party of tMs appeal.

Boakdman, J., concurs.

Follett, J.

I am unable to see how plaintiff is entitled to a hen on funds in the assignee’s hands, no part of which are shown to be or to have been derived from the moneys realized by McOully & Go. on the sale of the wagon, and therefore dissent.

Judgment as stated in opirnon of Hardin, J.


author: Hardest, P. J. Follett, J.

text:
    Harriet Beal, App’lt, v. The New York Central and Hudson River R. R. Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1886.)

    1. Railroad company—Taking land by—Eminent domain—What teclee in railroad under Laws 1833, chap. 294.
    The Utica and Schenectady Railroad ■ Company was incorporated in. 1835, under chapter 294, Laws of 1833, which, among other things, provided that “ all lands or real estate thus entered, taken possession of or used by the said corporation, which are not donations, shall be purchased by the owner or owners of the same, and at a price to be mutually agreed upon between them.” In case of disagreement of price, “ the land should be acquired by resort to certain proceedings, and that the award of commissioners appointed in such proceedings should be “¿what they shall deem to be the full value of the same,” and that the corporation should pay such, value to the owner, and that upon and after such payment the corporation shall be possessed of all the lands for the purposes of said road, and may enter upon and take possession and use the same.” At the time the lands- ' in question were taken by the Utica and Schenectady Railroad Company,' plaintiff, who then owned the lands, was a minor, and recourse was had to-proceedings under its charter to acquire the lands, which resulted in the entry of the final decree required by the said act, which provided that upon recording of the said decree, the corporation should be possessed of the lands-for the purposes of the said road, and that it might enter upon and take-possession of and use the same. The corporate existence of the company was fixed by the charter at fifty years, which term expired April 28, 1883. The railroad, after having entered into possession of the land, was, pursuant to an act of the legislature, legally consolidated with other railroad companies into the present corporation known as the New York Central and Hudson River Railroad Company, transferring all its rights, franchises and interests to and vesting them in the new company, it being-provided expressly in the act that the title and real estate acquired by the old company should not be deemed to revert or be impaired by means of such act of consolidation, or anything relating thereto. In an action of ejectment brought by plaintiff to recover the lands: 3eld, that the action could not be maintained, that the proceedings had under the act of 1833 transferred the fee to this land and not a mere easement therein to the company; that this being so, the expiration of the time limited for its corporate ex'stence would not, without subsequent legislation, work areverter of the title to the plaintiff.

      2. Same—Power of legislature to extend the term of its corporate EXISTENCE AND TO AUTHORIZE ITS CONSOLIDATION WITH OTHER COMPANIES
    By the act of 1833, the power to at any time alter, modify or repeal the act of incorporation was expressly reserved to the legislature: Reid, that that body could extend the period of its corporate existence, or authorize its consolidation with other corporations, and authorize the successors to receive and hold its property and effects, including the premises in question, and to require and authorize them to be possessed by such successors for the purposes of a. railroad and its use of the same.
    Appeal from a judgment entered in Oneida county dismissing plaintiff’s complaint. The case was tried at the Oneida circuit without a jury, and findings of fact and conclusions of law made, upon which the judgment was based.
    The act under which the Utica and Schenectady Bailroad Co. was incorporated was passed on the 29th day of April, 1833. By one of the clauses of the act the corporate existence was limited to fifty years. This action was commenced after April 28th, 1883.
    The land in question belonged to the plaintiff in 1835 and up to May 9th, 1836, she being then a minor when proceedings were taken under its charter to acquire the land, and the amount awarded by the commissioners was paid to her guardian.
    The Utica and Schenectady Bailroad Co. was duly consolidated with another railroad under the act passed April 2, 1853, forming the Yew York Central Bailroad Co., and by authority of said act all the rights of property real and personal belonging to the U. and S. Bailroad were transferred and vested in the new company formed. .
    This new company under the authority of the act passed May 20, 1869, was consolidated with the Hudson Biver Bailroad Company under the name of the Hew York Central and Hudson Biver Bailroad Company, and by authority of this act the title to the land in question was claimed to be transferred to and vested in the N„ Y. Cent, and H. B. B. B. Co.

      C. W. White, for app’lt; D. M. K. Johnson, for resp’t.
   Hardest, P. J.

Whether the plaintiff is entitled to or interested in the lands described in the complaint depends upon the construction of chapter 294 of the Laws of 1833, and the force to be given to the proceedings had under that chapter to condemn the lands in question, or in other words, did the proceedings had operate to the transfer from the plaintiff the fee or a mere easement in the premises, limited to the period expiring on the 28th day of April, 1883 ? 2 Wood Railroad Law, 764.

Section 7 of chapter 294 of the Laws of 1833, authorizes - the corporation, first, to purchase, receive and hold such real estate as may be necessary and convenient in accomplishing the object for which this corporation is granted; second, it also authorized the corporation’s agents, surveyors and engineers to enter upon such route, place or places to be designated; and, third, it authorizes “the said corporation to enter upon and take possession and use all such lands and real estate as may be indispensable for the construction and maintenance of said double railroad. ” ** * It also authorizes the corporation, fourth, to “ receive, hold and take all such voluntary grants and donations of land and real estate as shall be made to the said corporation to aid in the construction, maintenance and accommodation of said railroad or ways; but all lands or real estate thus entered, taken possession of and used by the said corporation, which are not donations, shall be purchased of the owner or owners of the same, and at a price to be mutually agreed upon between them; in case of a disagreement in price, and before the making of any portion of the road upon said land, the directors of said corporation may present their petition to the chancellor, setting forth the necessity of such lands for making said railroad or ways, and of the attempt and failure to purchase the same, with the name and residence of the owner and the reason why the purchase cannot be made. And the chancellor shall direct such notice to the owner or owners of such lands, as he shall deem proper and reasonable, of the time and place of hearing the parties: and upon proof of due service of such notice, and upon hearing the parties, the chancellor shall appoint three competent and disinterested freeholders of the county in which the lands are situated to be commissioners to appraise said lands. The said commissioners shall appraise said lands, and shall award to the owner or owners thereof what they have shall deem to be the full value of the same; and shall be authorized to examine the lands, to administer oaths and hear testimony; and shall make their appraisement in writing without delay, under their hands, with a minute and accurate description of the land appraised with a map thereof, and shall report the fíame, with the testimony taken, to the court of chancery. The chancellor shall examine the report and shall hear the parties, if desired, and may increase or diminish the amount awarded if he shall be satisfied injustice has been done. Upon proof to the chancellor, within thirty days after his determination, of payment to the owner or of the depositing to the credit of the owner in such bank as the said chancellor shall direct of the amount of such appraisement, and the payment of all expenses attending it,, the said, chancellor shall make a decree or order particularly describing the lands and reciting the appraisement, and the mode of making it, and all other facts necessary to a compliance of this section of the act. And when the said decree or order shall be recorded in the office of the clerk of the county in which the land is situated, whose duty it shall be to record the same, the said corporation shall be possessed of all the lands for the purpose of the said road, and may enter upon and take possession and use the same.”

In ascertaining the proper construction to be given to the section under consideration, attention must be given to the words, viz.: “But all lands or real estate thus entered, taken possession of and used by the said corporation, which are not donations, shall be purchased of the owner or owners of the same, and at a price to be mutually agreed upon between them.” This language is broad and comprehensive, apparently used for the purpose of including all lands which the road should acquire otherwise than by “donations.” It seems to relate not only to lands as to which there should be a voluntary conveyance, but to lands which should be acquired by resort to proceedings under the principle of eminent domain. The following language bears upon the construction which we have intimated should be given to the sentence just quoted, viz.: “In the case of a disagreement of price,” the directors were authorized to present their petition to the chancellor, “setting forth the necessity of such lands for making said railroad or ways, and of the attempt and failure to purchase the same, with the name and residence of the owner.” Thereupon the chancellor was authorized to appoint commissioners “to appraise said lands.” Then follows a rule for the appraisal, commanding its commissioners to “appraise said lands, and shall award to the owner or owners thereof, what they shall deem to be the full value of the same.” The commissioners are then directed to make an appraisement in writing, “with a minute and accurate description of the land appraised.”

The section then provides that “upon proof to the chancellor * * * of payment to the owner, the chancellor shall make a decree particularly describing the lands and reciting the appraisement, the mode of making it, and all other facts necessary to a compliance with this section.” Then follows a provision that when the decree shall be recorded, “the said corporation shall be possessed of all the lands, for the purposes of said road, and may enter upon and take possession and use the same.” It must be borne in mind that the language which we have quoted refers to the lands unqualifiedly. No words are used indicative of an attempt to authorize the taking of anything less than the fee. The concluding language of the section was probably inserted for the purpose of declaring that the company should be the owner of the lands.

The word ‘.‘possessed ” seems to be used as the equivalent of the word “owner.” If we thus read "the sentence, the statute declares that the company shall be the owner “of all the lands upon payment of the price” or “appraisement ” of the lands fixed by the commissioners. As we have already seen, in the early part of the section, there was an intent evinced by the language used, that all lands should be purchased (except those donated), first, at a price to be mutually agreed upon; and, second, that in case of a disagreement of price, that the price should be named by commissioners. Some stress is laid by the appellant upon the words found at the close of the section, viz.: “Said corporation shall be possessed of all the lands for the purposes of said road and may enter upon and take possession and use the same.”

We are not able to construe these words as indicative of an attempt to limit the estate or of the title which should pass to the corporation under the proceedings. It may be conceded that those words required the corporation, or its successors, to use the land for railroad purposes. So far as public policy is concerned, the language may be regarded as sufficient to require the corporation created to devote the premises thus acquired to no other use or purpese.

It is not claimed, upon the facts before us, that the corporation thus created, or its successors, have devoted the lands to any other purpose than that of maintaining and operating a railroad thereon. If we are right in assuming that the fee passed under the proceedings to the corporation, then it possessed the right to use and occupy the preifiises in question for the purpose of erecting, building or making a single, double or quadruple railroad or way, and by the charter it also possessed “the right of using the same in the manner * * * directed ” in the act “ for and during the term of fifty years.” It was thus permitted to operate its road, by express permission of the legislature, for the period of fifty years.' But by the nineteenth section of the act it was expressly declared that the legislature may, at any time, alter, modify or repeal the act. _ So far, therefore, as the act is concerned, the act in question gave the corporation created by it certain powers. These powers were to be enjoyed by it for the period of fifty years. It was competent for the legislature to extend the period to a corporation thus created, or to so modify the charter, alter or amend it, that in conjunction with one or more other corporations, the same privileges might be exercised. Eut if we are right in assuming that the corporation received the same title or interest by virtue of the proceedings, which it acquired in lands where there was a mutual agreement as to price, the lapse of time without subsequent legislation would not work a reverter of the title to the premises to the plaintiff.

In Heath v. Barmore (50 N. Y., 302) it is held, viz. “The rule of the common law, that real estate held by a corporation at the time of its dissolution reverts to the grantor, does not prevail in this state in respect to stock corporations. Where lands are conveyed absolutely to a corporation having stockholders, no reversion or possibility of reverter remains in the grantor.”

In such case it seems to be settled that property acquired by purchase may be conveyed to a subsequent purchaser “discharged of any right of reverter in the grantor or his heirs.” Kenney v. Wallace, 24 Hun, 479; Nicoll v. Erie Railway, 12 Barb., 460; S. C., affirmed, 12 N. Y., 121.

It was held in The Brooklyn Park Commissioners v. Armstrong (45 N. Y., 234) that “in the exercise of the right of eminent domain, the legislature are the sole judges to what extent the public use requires the extinguishment of the owner’s title, and their power in this respect (subject always to the necessity of making full compensation) is not limited by any constitutional restriction. The nature of the right acquired by the public in such cases, whether an absolute title to, or a mere easement in, the lands, depends, therefore, upon the intention of the legislature, to be deduced from the act authorizing the condemnation.”

Judge Folger says in that case, at page 241: “ The terms employed in the fifth section, descriptive of what is to be acquired and paid for, are broad, and would seem to include all of the proprietary nature in the lands, or connected with or growing out of them. And for relinquishing it all, the owner is to be paid the full value of it all, without deduction. It seems inconsistent, that if the legislature intended that the city should take but an easement, it should be required to pay the value of the lands, and of all hereditaments and appurtenances, and also the other loss and damage to the owner from the taking, without deduction for benefit. This would be to exact the price of the fee for taking a user only. It could not have been intended that the owner should receive ftill value, and yet have left to him a reversionary interest.” Haldeman v. The Pennsylvania Cent R. R. Co., 50 Penn. St. R., 425; Cooley on Limitation of Legislative Power, 552.

This case was referred to by Andrews, J., in Washington Cemetery v. Prospect Park and Coney Island R. R. Co. (68 N. Y., 595), with approbation. In the latter case the learned judge refers to the statute of 1873, then under con sideration, which provided for the appointment of commissioners “to estimate the value of the lands and premises required to be taken for said avenue, the damages to be sustained by any person interested therein, by reason of such taking, and the benefits which will be derived by owners of the land within the district of assessment from the opening-of the avenue,” and he adds: “The land is taken for an avenue, and this purpose is fully satisfied by the taking of an easement in the land for the street or highway.” We think that case differs from the one now before us. Brooklyn Park Commissioners v. Armstrong, supra, was referred to and followed to in Gearty v. The Mayor, 49 How., 34.

In Heyward v. The Mayor (7 N. Y., 314), it was declared that the legislature has power to authorize the acquisition of the fee in lands of private persons, required for public uses, on payment of just compensation, and that when so acquired, no reversionary estate remains; and that where the public exigencies require lands to be converted to some other purpose, they may be so converted. Near the close of the opinion in that case, Welles, J., says: “A man is called upon to give up and part with his property for the public use. It is reasonable that he should do so," and the law requires it of him;, a full indemnity is all that he can ask in return, and should satisfy him. Having received it, a demand for anything beyond must be founded upon a rule anything but equitable.”

In Story v. The New York Elevated R. R. Co. (90 N. Y., 172), Tracy, J., says: “The proceedings by which land is acquired by the exercise of the right of eminent domain amount to a statutory conveyance of the same to the public or the corporation, and there is no distinction between such a conveyance and a voluntary conveyance made for a public use.”

When such proceedings are instituted, Blackstone says, viz: “The public is considered as an individual treating with an individual for exchange. All that the legislature does is to oblige the owner to alienate his possessions at a reasonable price, and even this is an exertion of power which the legislature indulges with caution, and which nothing but the legislature can perform.” 1 Black. Com., 139.

It was competent for the legislature to enact, as it did in section 7 of the act of 1833, that “ all lands or real estate thus entered upon, taken possession of, or used by the said corporation, which are not donations, shall be purchased of the owner or owners of the same, and at a price to be mutually agreed upon between them, in case of disagreement of price,” and to provide, in case of such disagreement, that the award of commissioners should be “what they shall deem to be the full value of the same,” and that the corporation should pay such value to the owner, and that upon and after such payment the corporation should be deemed possessed of and to be the owner of the property required.

If we are right in the conclusion that the plaintiff parted with her whole title to the property when she received compensation to the extent of the full value thereof under the proceedings had, and that the corporation acquired for a public use, the title and ownership of the property, it follows that the plaintiff had no title to, or right to the possession of, the premises in 1888, or at the commencement of this action.

It was competent for the legislature to amend the act of 1833, as in section 19 thereof it had reserved the power to do so, and it was within the power of the legislature, with the assent of such corporation, to authorize its successors to receive and hold its property and effects, including the premises in question, and to require and authorize the premises to be possessed “ for the purpose of a railroad and its use of the same.” These views lead to the conclusion that the decision at the circuit should be sustained. Terry v. N. Y. C. and H. R. R. R. Co., 67 How., 439; opinion by Haight, J.

Boardman, J., concurred in result.

Follett, J.

Without expressing an opinion upon the question as to whether the Utica and Schenectady Railroad Company acquired an absolute fee, which could be conveyed and the land converted to other uses, I am of the opinion that the corporation acquired the right to use the land for railroad purposes so long as it, or any successor corporation is authorized to and does use the land for such purpose. Upon this ground, I vote for affirming the judgment, with costs.

Judgment affirmed, with costs.


author: Hardest, P. J. Churchill, J. Follett, J.

text:
    New York State Monitor Milk Pan Company (limited), Resp’t, v. Philo Remington et al., Appl’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1886.)

    1. Contract—Sale oe Chattels—Warranty as to quality—Measure 03? DAMAGES 3?OR BREACH.
    A warranty on the sale of a chattel is in legal effect a promise that the subject of sale corresponds with the warranty in the quality to which it relates. Where the warranty relates to the soundness or quality of the article sold, compensation is due immediately if the article does not coi-respond with the warranty, and the measure of damages upon a breach thereof is the difference between the value of the goods, if they had so corresponded, and their actual value.

      3. Same—When articles are furnished subject to the inspection of vendee’s agent, his determination as to the quality is binding ON VENDEE.
    The defendant had contracted to make milk coolers for the plaintiff. “Each ten sets subject to inspection of the party of the second part within five days after notice of completion.” Held, that when the contract in terms prescribes an examination, or inspection, or a test, and an opportunity has been afforded for the exercise of that option and privilege on the part of the vendee to examine, inspect and test, and it has been exercised, and it appears there has been no fraud or collusion in the test, examination or inspection contemplated by the contract between the parties, it -is deemed final and binding upon them. Follett, J., dissenting
    3. Same—Ignorance of test furnishes no excuse.
    It is the fault of the party having the right of inspection or test if a person selected by them for the purpose is not aware of the means necessary to ascertain defects in the articles "warranted, and his decision as to their suitable quality is binding on the party.
    4 Same—Measure of damages—Where the parts of the article furnished are separable

      Held, That where a part of the articles furnished under the contract did not correspond with the warranty therein contained, and that part was separable from the remainder, it was error to allow damages to an amount including the value of the part complying therewith.

      Francis Kernan and Thomas Bichardson, for app’lts; W. H. Johnson, for resp’t.
   Hardest, P. J.

In Cary v. Gruman (4 Hill, 625), it was held that “a warranty on the sale of a chattel is in legal effect a promise that the subject of sale corresponds with the warranty in title, soundness or other quality to which it relates * * * It naturally follows that if the subject prove defective within the meaning of the warranty the stipulation can be satisfied in no other way than by making it good. That cannot be done except by paying to the vendee such sum as together with the cash value of the defective article shall amount to what it would have been worth if the defect had not existed.”

That case was approved and followed in Muller v. Eno (14 N. Y., 605), where Judge Comstock said that, in accordance with the doctrine of Cary v. Gruman, “the rule of compensation is now well settled, and this compensation, it should be added, is due immediately. I mean it is due immediately where the warranty relates to the soundness or quality of ‘the article sold The promise is not one of indemnity against loss on a resale of the thing warranted by the purchaser. The promise is broken as soon as made, although the defect may then be known, and its effect is to subject the vendor at once to a legal liability to make good in money the difference between the article as sound and its actual value. This liability stands upon the same footing as any other pecuniary obligation or debt.”

Again, at page 206 of 14 New York, Judge Comstock says: “It has been already stated the measure of damages on a breach of warranty in the sale of goods is the difference' between the value of the goods if they had corresponded with the warranty and their actual value. This rule rests upon a sound principle and it must be regarded as settled by the two carefully considered cases of Voorhees v. Earl ( 2 Hill, 288), and Cary v. Gruman (4 id.,625).” To the same effect is Comstock v. Hutchinson (10 Barb., 211). To the same effect also is Richardson v. Mason (53 Barb., 601). To the same effect is Milburn v. Belloni (34 Barb., 607), where the warranty was that the coal ‘dust was free from soft coal, and that it was fit for use in making brick, and it was held that the recovery should have been “the difference between the value of the article sold him (plaintiff) as it was, and. its value as it would have been if it had been such as it was represented ” to be.

In Brigg v. Hilton (99 N. Y., 519), the rule was laid down to be “ the difference between the value of the goods if they had been as warranted, and the actual value of the goods in their defective condition.”

It appears by the testimony of Ross, the superintendent of the defendants, that none of the parts of the coolers were enameled except the pans, and no complaint was made of any of the parts of the coolers except as to the pans, and the defect complained of in respect to the pans Vas confined to the quality of the enamel on the pans. The witness added “the proportion of cost, that is the proportion of price which we received for the manufacture ol this whole complete arrangement, including a pan with its enamel, a vat and its legs and braces, would be fifty-five per cent for the pan and enamel, and about forty-five for the balance; that is, fifty-five for the pan with its enamel, and forty-five for the vat, legs and braces.”

The witness further added, viz.: ' “Assuming that the enamel is soft and that the pans are useless for the purpose for which they were manufactured, the pan only, assuming that they were too soft for the purpose of holding milk, yet they are not entirely valueless for other purposes. They might be used for water vats. We have used some of them for that purpose. In other words, where the element of lactic acid does not come into consideration, and its effect upon the enamel, these pans would be as serviceable with the enamel they have on them as any other enamel so far as I know. So far as we have used them they answer the purpose.”

Plaintiff’s witness, Wright, who had negotiations leading up to the contract in behalf of the plaintiff, testified: “If the pan was properly enameled it would make it good; I don’t know that I ever called on the defendants to furnish other pans in case of defective enameling; if from any cause a pan was worthless, another pan could be placed in that set; a proper pan would remedy the defect.”

It appears by the referee’s opinion that he took the price paid for the coolers, including all of their four several parts, “as the market value of the articles contracted for, and that he reached the conclusion” that the pans, as made, had no market value; and he also said in his opinion that the defendants had “given no evidence tending to establish the same,” that is, the market value of the pan as a separate and independant article.

It appears from his report, as well as from his opinion, that he has allowed the- plaintiff to recover the whole price paid for the combined article called the coolers, embracing the four separate parts. If it be assumed upon the evidence that the plaintiff had satisfactorily shown that the pans were so defective as to be of no value, and that, therefore, the plaintiff might have a recovery of a sum equal to the price paid for the pans, it does not follow that because the pans were defective to such an extent as to be of no value, except, perhaps, for old iron, or for vats to hold other liquids, that the plaintiff was entitled to recover as damages that sum of money which it had paid for the other three parts of the cooler. It would seem, therefore, that the referee has fallen into an error in respect to the rule of damages.

Second. The written contract entered into by the parties provided for the inspection of the manufactured articles by the plaintiff. In pursuance of that contract it designated a party to inspect the manufactured articles. Defendants allowed him ample opportunity to make such inspection. He visited the works of the defendant, and from time to time examined, inspected, approved, rejected or accepted the manufactured articles as in the exercise of his discretion and judgment he deemed proper.

According to the evidence, in many instances, articles were rejected or disapproved of until remedied, and in some instances the rejection was entire. It is not pretended, in any aspect of the case, that there was any fraud or collusion practiced in respect to the inspection, examination-or acceptanfce of the manufactured articles. It is manifest from the evidence taken upon the trial that the inspector, by the use of lactic acid, could readily have determined the character and quality of the enamel at the time he inspected the manufactured articles. It is inferable that had he made the proper tests and examinations, and carried his inspection to the extent that the spirit of the contract warranted, he would have discovered the existence of the defects that are complained of in respect to the enamel. Upon a discovery of that defect and a rejection, the process of manufacturing in that regard would have been arrested, or the defect remedied.

In the contract between the parties, as well as in the evidence in respect to their execution of it in the selection of an inspector, it appears that the plaintiff had it in its power, and it was its privilege to make the selection of any person it might choose, to examine the manufactured articles and exercise the power of inspection given to the plaintiff in the contract.

The language of Davis, P. J., in McParlin v. Boynton (8 Hun, 453), is pertinent at this point. He there said of a party situated in respect to the right of inspection, as were the plaintiffs in the case now before us, that he “had the privilege óf selecting any person he chose. It was both his interest and duty to select an entirely competent and skillful man. If he failed to do that it was his misfortune or neglect. There can be no doubt that the' defendant was not bound to take any of the saws rejected by the person he employed for not coming up to the requirements of the contract in any respect. It is more than probable that the defendant selected an incompetent man, but as all the saws, as they were made, were delivered into his hands, and passed upon by him, and subsequently delivered to the defendant, no remedy remained for lack of compliance with the contract, unless on some "ground of fraud which is not alleged.”

It is also said in the opinion from which we have quoted that it is within the power of parties to make such an arrangement for an inspection, as we find in the one before, us, and the learned judge adds: “Where parties stipulate that articles to be manufactured shall be of a particular kind and quality, and at the same time stipulated that they shall be tested by some person selected by the purchaser, before delivery, to ascertain whether they are of a specified kind and quality, and such test is in fact made by him, and the goods are thereupon delivered and accepted, no remedy by action can be had, upon the contract, although the goods, or some portion of them, are subsequently ascertained not to be equal to the warranty. In the absence of fraud and of collusion between the manufacturer and the person selected, his decision, upon the test that the articles are such as the contract requires, is conclusive against the purchaser who subsequently receives them.”

It appears the case, from which the above quotation is made, was taken to the court of appeals and the judgment affirmed (71 N. Y., 604), the affirmance receiving four affirmative votes. Under such circumstances, it seems to be the duty of this court to accept the doctrine of McPa lin v. Boynton, as laid down by the general term of the first department in the opinion of Davis, P. J., from which quotations'have been made.

Brigg v. Hilton (99 N. Y., 520) lays down the principle which enables a vendee who has received goods under a warranty, notwithstanding he has retained them and used them, to recover for damages arising out of the breach of warranty. In that case the goods were represented as sound and merchantable goods, represented for and “known as cloakings,” and which the plaintiffs agreed “should in all respects be equal to the samples,” and it was alleged that the vendee, “relying upon the plaintiff’s agreement and guaranty, accepted and paid,” and that he subsequently discovered that none of the goods “corresponded with the samples, but were imperfect, unmerchantable, ” etc. In that case there was no express stipulation for an inspection by a party to be named by the vendee, nor in fact was there an inspection in pursuance of the tenor and spirit of the contract.

Here the parties carefully provided for the mode and manner of ascertaining the character and quality of the articles offered to and delivered to plaintiffs unde the contract. The undertaking of the defendants, found in the contract, was to make for the plaintiff, at the works of the defendant at Ilion, “ in.a good, workmanlike manner,” the coolers named in the contract, which wrere to be shipped as the plaintiff should direct, and it was provided that the articles so manufactured.were to be in sets Of ten “subject to the inspection of the party of the second part, within five days after the notice of completion;” and it- was further provided in the contract, viz.: “Payments to be made one-half each on inspection, and remainder at expiration of four months, with interest for two months.”

By the acts of the parties in the execution of the contract, it is evident that they understood, and, therefore so proceeded in the execution of the contract, that it was the duty of the plaintiff, on receiving notice or request, to select and furnish an inspector. It did select and furnish such inspector in accordance with such understanding of the contract, and in accordance with its terms.

The referee found, as a fact, that plaintiff paid for the articles manufactured before the defect in the enamel was discovered. He also found, viz.: “ Such defect was latent and was not ascertained or ascertainable by any process that could be reasonably employed, until the pans had been used for some weeks for storing milk. It is not easy to approve of the finding that the defect was not ascertainable “by any process that .could be reasonably employed until the pans had been used for some weeks for storing milk.”

It may be that the parties to this action, and certain witnesses that were called to the stand in the progress of the trial, did not understand the chemical effects of lactic acid, or understand the proper and correct mode of ascertaining the character and sufficiency of enamel when placed upon articles of the kind referred to in the contract. But it by no means follows that it was not the duty of the plaintiff to select a competent, capable person to sufficiently and suitably inspect the goods which they were to accept upon the inspection being made' in their behalf, and for which they had expressly stipulated to pay “on inspection.”

The referee found, as a matter of fact, “ that the quality and fitness of the enamel was ascertainable by applying lactic acid.” It was the neglect of the plaintiff that that test was not made. It had the opportunity to select a party capable of making such a test. If it failed to make the proper selection, that failure was because of its inattention to its privileges and rights. That neglect may not be excused by the findings of the referee, to the effect that that test “was not known by either party,” nor by the finding that “ there is no evidence that it was known except to scientists,” nor by the finding that the test was not in practical use.

Diligence on the part of the plaintiff in ascertaining the proper test for the durability of the enamel, doubtless would have revealed the fact to “scientists,” or other persons familiar with the nature and character of the component parts of milk, or its action upon substances when kept for a long period of time in contact with them, and that such action was the same in effect as is produced upon substances by bringing them in contact with lactic acid, one of the properties of milk. To test the enameling does not necessarily involve its use for a long of time.

In Gautier v. Douglass Manufacturing Company (13 Hun, 524), it was admitted that the quality of the steel could not be ascertained without working it up, and “ that an inspection and examination of it would not reveal its defects.” At. page 525, the judge who delivered the opinion in that case said, viz.: “The test of the steel involved its use, and it could not be rejected or returned.” That case is, therefore, unlike the one before us.

In Gurney v. Atlantic and Great Western Railway Company (58 N. Y., 358), it was held that “if a defect exists which could not be determined by examination upon the receipt of the articles, but only upon use, it is not the duty of the vendee to rescind the contract and return or offer to return the property upon discovery, but he may retain them and recover or recoup his damages.” In that case the referee found the frogs “were defective and brittle, but that this could not be discovered by examination, and could only be ascertained by use, and that the failure of one created no presumption that others were defective/’ and in that case Church, Ch. J., said, viz.: “The general rule is, when articles are sold upon an executory contract like the one in question,, that the delivery and acceptance of the articles after examination, or an opportunity to examine them, is a consent or agreement that the articles correspond with the contract, and precludes a recovery for any defects which may exist. Gaylord Manufacturing Company v. Allen, 53 N. Y., 515.

It was further observed by the court, viz.: “ The vendee must have an opportunity to examine, and when, from the terms of the contract or the nature of the article, this can only be done by use, and such was, therefore, the mode of examination contemplated, the vendee is not foreclosed until the test is made. But when made and the defects discovered, is it not the duty of the vendee then to take his ground and rescind the contract and return, or offer to return, the property, or be held to a waiver and acceptance? Upon principle I can see no difference in this respect on account of the time or mode of examination.”

It would seem that the case from which the quotation has just been made warrants the conclusion that when the contract in terms prescribes an examination or, inspection or a test, and an opportunity has been afforded for the exercise of that option and privilege on the part of the vendee to examine, inspect and test, and it has been exercised, and it appears there has been no fraud or collusion in the test, examination or inspection contemplated by the contract between the parties, it is to be deemed filial and binding upon them. In the case in hand the plaintiff’s agent, by it selected for the express purpose of making suitable and proper inspection, examined all the pans and the enameling thereof, and approved of the same. If he was incompetent, if he was negligent, if he was inattentive, the responsibility for such neglect, inattention or want of capacity, according to McParlin v. Boynton (supra), should fall upon the plaintiff.

The foregoing views, together with those expressed in the opinion of Churchill, J., lead me to concur in the result reached by him in his opinion, in favor of a reversal and a new tidal before another referee, with costs to abide the event.

Churchill, J.

By the written contract of the parties the defendants were to make for the plaintiff, at the works of the former in Ilion, “in a good workmanlike manner, two hundred set of ‘milk coolers,’ patented June 25, 1815, to consist of four coolers or pans complete to each set.” The plaintiff was assignee of the patent for the state of New York, and had the exclusive right to manufacture the coolers within the state. The contract further provided that each ten sets should be subject to the inspection of the plaintiff within five days after notice of completion, and that payment should be made one-half cash, on inspection and the remainder at the expiration of four months, with interest after two months. The sets were all made, inspected, accepted and paid for. Subsequently it was discovered that the enameling of 253 pans of the sets last made and known as the Crowley pans would not resist the action of the acid of milk, and that the pans for that reason were worthless. The pans were separate from the other parts of the coolers and cost about fifty-five per cent of the whole expense, and when the pan was worthless, supplying a proper pan would remedy the defect.

The fact that the enameling of the defective pans would not resist the action of the milk was not discoverable by ordinary inspection, but could have been discovered by testing with milk if continued for a sufficient length of time, or by the use of lactic acid. No offer to return the defective sets was made by the plaintiff, and they yet remain in its possession. The referee gave as damages the entire price paid by the plaintiff for the defective sets. The words, “in a good, workmanlike manner,” are' not surplusage and do not import into the contract an obligation which the law would imply without them. Taken in connection with the specifications accompanying the letters patent, the defendants thereby agreed to enamel the iron pans forming part of each set in such a manner as “to protect the iron from the effect of the acids contained in the milk or cream when sour.” The Crowley pans were defective in this respect, for which the plaintiff is entitled to damages unless the provision with respect to inspection prevents.

If it be true, as found by the referee, that the inspection made was not conclusive, except as to patent defects and such as were _ discoverable by observation, and that the plaintiff was in no wise concluded by such inspection and subsequent acceptance as to latent defects, the provision for such inspection was surplusage, since such defects would have been waived by acceptance ’without any provision therefor in the agreement. This provision for inspection should be construed to mean something equally with the words, “in a good, workmanlike manner.” If not limited to patent defects it must extend to and include latent defects, and in the absence of collusion or fraud bar any recovery therefor, McParlin v. Boynton, 8 Hun, 449; affirmed, 11 N. Y., 604; Wyckoff v. Meyers, 44 id., 143.

Glacius v. Black (50 N. Y., 145), distinguishes Wyckoff v. Meyers as a case where payment was to be made upon the certificate of the architect. But in the present case payment was to be made “on inspection.”

The pans were worthless to store milk unless enameled in such manner as to protect the iron of the pan from the effect of the acids of milk and cream when sour. The specifications forming part of the letters patent, of which the plaintiff was an assignee, showed this fact and also-stated that the manner of preparing and applying the enamel was well known to those skilled in the art. The defendants had a right to presume that the plaintiff had tests by which they could determine whether or not the pans were fit for the purpose for which they were made, and that the inspection provided for by the contract would at least extend to and determine whether or not in this essential particular they were of the kind required by the contract. The inspection by plaintiff’s agents of the pans complained of and their subsequent acceptance are a bar to any recovery in this action.

An improper rule of damages was adopted by the referee. The only part of the “milk cooler” which was defective was the non, which cost about fifty-five per cent of the whole. “If from any cause a pan was worthless, another pan could be placed in that set; a proper pan would remedy the defect.”

From this it would seem that by an expenditure of a little more than half the original cost of manufacture, the plaintiff could make perfect the articles complained of. This being so, an award of the entire cost as damages was unauthorized.

The judgment should be reversed and a new trial ordered before another referee, costs to abide event.

Follett, J.

(dissenting)—The plaintiff owns the exclusive right to sell within the State of New York “Johnson’s milk cooler,” a patented utensil for the use of manufacturers of butter or cheese. Each cooler consists of (1) a pan for milk; (2) a vat for water; (3) a frame supporting the pan and vat. The pan is made of cast-iron, enameled on the inside and used for storing milk until the cream rises to the surface and is removed. The vat is made of- cast-iron, encases the pan and is used for storing water, so as to keep-the milk at a proper temperature. The frame is made of cast-iron and supports the pan and vat. Four of these utensils are called a set—a set consisting of four pans, four vats and four frames. The defendants are manufacturers of agricultural implements at Ilion, New York. November 26, 1875, the parties to this action entered into a written contract, by which the defendants, for a sum agreed upon, contracted to furnish the material and manufacture, in a good, workmanlike manner, 200 sets of milk coolers with enameled pans, and deliver them to plaintiff at Ilion, New York. Each ten sets subject to inspection by plaintiff within five days after notice of completion. Under this contract defendants manufactured and delivered to the plaintiff 136f sets of coolers, _ with 547 enameled pans, which were accepted by the plaintiff and pronounced satisfactory, except as to some slight imperfection in the surface of the enamel, called “pin-holes,” which did not impair the practical usefulness of the pan. The pans above-mentioned were enameled by Joseph Parks, and are known as the “Parks pans,” over which no question is raised in this action.

Afterwards, the defendants manufactured and delivered to the plaintiff sixty-three and one-quarter sets of coolers, with 253 enameled pans, for which the plaintiff paid $5,239.19. These pans were enameled by Job B. Crowley, and°are known as the “ Crowley pans.” After the Crowley pans had been in use for a short time, the enamel was softened by the fermentation of milk and proved worthless for the purpose for which they were made. This action was brought' to recover damages occasioned by this defect. When milk sours or ferments, Retie acid is developed. So far as it is disclosed by the evidence, enameled cast-iron receptacles for milk undergoing fermentation were never used prior to the invention and use of this milk cooler; or, if used, the use was so limited that the action of lactic acid upon enamel laid on cast-iron had never been observed, at least, so far as was known to the parties to this action. The referee found that the 253 pans were not manufactured “in a good, workmanlike manner,” as stipulated in the contract. It is unnecessary to consider whether the stipulation to manufacture, “in a good, workmanlike manner,” is technically a warranty, or simply an executory promise; for, if broken, the defendants are liable unless the plaintiff is estopped from.claiming damages by inspecting, receiving and retaining the coolers.

The first question is whether the above finding of fact is sustained by the evidence? Farmers who used the pans enameled by Crowley testified that after a few weeks use the enamel softened, became rough and the pans were thereby rendered worthless for dairying purposes. Amable, one of defendants’ employees, who was sworn in their behalf, testified that he tested, with lactic acid, the pans enameled by Crowley, and that under the test the enamel softened, became rough and could be scraped off; that the enamel was defective, and by reason of the defect that the pans were worthless for dairying purposes, was not disputed on the trial.

Was this defect the result of unskillful workmanship? It is alleged in the complaint that the pans enameled by Parks resisted the action of lactic acid and served the purpose for which they were designed. This allegation is admitted in the answer. Van Dyke used pans enameled by Parks in his dairy eight years, and they resisted the action of lactic acid. Young used pans enameled by Parks in his dairy four years, and they stood the test. Anable, defendants’ employee, testified that under the direction of defendants’ superintendent, he tested, with lactic acid, pans enameled by Parks and pans enameled by Crowley, and that the pans enameled by Parks stood the test,.but those enameled by Crowley did not. This evidence seems to establish the fact that there were no insuperable difficulties preventing the production of enameled pans which would serve the purpose, for which they were designed. Crowley testified that he informed Ross, defendants’ superintendent, that the furnace in which the enamel was hardened, or fused upon the pans, was defective, and asked for a different one. Ross denied this, and testified that Crowley asked that changes be made' in the furnace, and that it was changed as desired. Anable testified that soon after Crowley commenced work, Parks said that Crowley’s enamel “would not stand, being too soft.” Gibson, one of defendants’ workman employed on these pahs, testified that Parks told him that Crowley’s enameling would not stand. Both testified that they told Center, plaintiff’s general agent, what Parks had said, and that he replied that he would risk Crowley’s work. Center denies this. At foho, 76 of the answer it is alleged that defendants’ agents doubted the ability of the pans enameled by Crowley to resist the action of lactic acid, and that they communicated their doubt to the plaintiff’s agent. If it be true that defendants’ agents did not communicate to plaintiff’s agent Parks’ statement, and if it be true that Crowley informed defendants’ superintendant that the furnace was unfit for the purpose, it goes far towards charging defendants with a negligent non-performance of their contract. Whether Crowley was employed upon the request or recommendation of plaintiff’s agents, was a disputed question. The credibility of these witnesses was for the referee, and, assuming that the plaintiff’s witnesses testified truthfully, the defect was the result of unskillful workmanship, and the finding of the referee cannot be set aside as contrary to the evidence.

It is urged that the plaintiff cannot recover because it inspected, accepted and retained the coolers without offering to return them. If a manufacturer, having agreed to make and subsequently deliver in a good and workmanlike manner articles designed for a known use, delivers articles not so manufactured, which are unfit for the use, the Tendee may retain the articles and recover the damages. Brigg v. Hilton, 11 Daly, 335; affirmed, 99 N. Y., 517; Hoe v. Sanborn, 21 id., 553; S. C., 36 id., 93; Norris v. La Farge, 3 E. D. Smith, 375. Apart from the provision in the contract in respect to the inspection, the retention of the coolers) after discovering the defect, would not bar the plaintiff’s claim for damages. The contract provides: “ Each ten sets subject to the inspection of the party of the second part (plaintiff), within five days after notice of completion.” Under this provision the plaintiff inspected, accepted and paid for the pans enameled by Crowley.

It is conceded that when the pans enameled by Crowley were inspected and delivered, the parties to the contract knew of no test by which the durability of the enamel could be tested, and that the defect subsequently developed by actual use was a latent one. Anable, after describing the process of inspection, testified: “At that time I did not know that anything further could be done for the purpose of obtaining a better knowledge as to whether the pans would answer the purpose or not.”

A manufacturer, under an agreement to manufacture in a good and workmanlike manner articles designed for a specific purpose, remains liable for latent defects arising from unskillful workmanship, notwithstanding the vendee’s acceptance of the articles after inspection or trial, under a clause in the contract of sale giving the vendee the right to inspect or try. Bird v. Smith, 12 Q. B., 786; Heilbutt v. Hickson, Law R., 7 C. P., 438; 2 Benj. Sales (Corbin’s ed.), § 911, p. 792, and cases cited. The effect of this clause was to pass the title of the accepted coolers to the plaintiff arid the defendants became entitled to the purchase-price, subject to their continuing liability on their agreement to manufacture in a skillful manner. It will be observed that the contract does not contain an arbitration clause or a clause of that nature, nor does it provide that acceptance after inspection shall discharge the defendants’ agreement to manufacture in a good, workmanlike manner.

Several cases have been cited as bearing upon this question. Wyckoff v. Meyers (44 N. Y., 143),’arose over a building contract which contained an arbitration clause, naming arbitrators, and it was held that the certificate of the arbitrators was binding upon the parties. Glacius v. Black, 50 N. Y., 145, also arose over a building contract, which provided: “ That the materials to be furnished shall be of the-best quality, and the workmanship performed in the best, manner, subject to the acceptance or rejection of Edward Wall, architect, and all to be in strict accordance with the plans and specifications which are signed by the parties of the second part, and form part of this contract. The builders procured the certificate of the architect and sued for the contract price, and it was held that defendant might-recoup his damages arising from a failure to do the work in a workmanlike manner.

This case was distinguished from Wyckoff v. Meyers, because of the absence of an arbitration clause. Bird v. Smith (supra) was cited with approval. McParlin v. Boynton (8 Hun, 449), arose over á contract to manufacture and deliver saws of a stipulated quality, subject to the inspection of the vendee. The saws were-inspected and accepted, but were subsequently found riot to be of the quality warranted. In an action for the price it was held that the defendants could not recoup their damages, upon the ground that the defects w’ere of a character that might have been discovered by inspection. None of the cases above cited áre referred to in the opinion. This judgment was affirmed (71 N. Y., 604), without an opinion, three of the judges dissenting. Bigler v. Mayor (9 Hun, 253), arose over a contract to furnish lumber and timber of a specified, quality and size, “ subject -to the inspection of the superintendent of repairs and supplies of the department of docks.”' The plaintiff held the certificate of the superintendent, and upon the trial of an action for the purchase price, the court held the certificate conclusive upon the defendant, unless- ■ the jury found-that it was fraudulently given or obtained. This was held to be error and a new trial was granted, the-court holding that the certificate was not conclusive, as the contract did not so provide. In this case Bird v. Smith (supra) and Glacius v. Black (supra) were commented upon and approved, and Wyckoff v. Meyers (supra) was distinguished, but McParlin v. Boynton (supra), decided by the same court at the preceding term, was not cited. The construction given to the clause under consideration seems to-accord, in principle, with the role declared in Brigg v. Hilton (supra), as it is difficult to see why a liability survives-the acceptance and use of defective articles with an ample opportunity to inspect -under an executory agreement to-deliver articles of a prescribed excellence, and not survive inspection and- acceptance under a like agreement containing a clause simply giving a right to inspect, which, right the vendee has without the clause. Pope v. Allis, 115 U. S., 363.

The measure of damages is the difference in value between coolers manufactured in a good and workmanlike manner and those delivered. Plaintiff’s witness testified that the defective coolers delivered would have been worth the price paid, §5,239.19, had they been manufactured in a good and workmanlike manner, which evidence is undisputed. The plaintiff’s witnesses also testified that the defective coolers were worthless. The burden was then upon the defendant to show that the coolers were of some value. Defendant’s superintendent testified that the coolers “were not entirely valueless for other purposes that defendants used some of them for sinks and the re-7 mainder of the rejected pans were broken up as old iron, for which purpose they were worth about a penny a pound, and that he told plaintiff’s agent that they were good for nothing else. Assuming that the defendants were liable, the damages were not excessive, and the correct measure of damages was adopted. None of the rulings of the referee upon the admissibility of evidence being questioned upon the argument, they are not considered.

The judgment should be affirmed, with costs.

Judgment reversed and a new trial ordered before another referee, with costs to abide the event.


author:
Follett, J.
      Hardin, P. J.

text:
    Matter of the Probate of the alleged last Will and Testament of Harriet Chase and Codicil thereto.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1886.)

    1. Evidence—Will—When draughtsman oe a wild not incompetent to testify— Code Civil Peo., § 835.
    The draughtsman of a will, though he is an attorney, is not incompete./t under O. de Civil Procedure, § 835, to testify in support of the will • to instructions received from the testator in respect to the provisions to he incorporated in the will.
    2. Same—When a donee of a power, with compensation for “services and cake,’’ not disqualified under Code Civil Pro., § 829.
    Where the will directed that two persons named, one of whom was Helen A. Benrup, should ha e power to superintend and care for the testatrix’s invalid son, and provided that the executors should pay them such reasonable sums from time to time as they or either of them may fairly expend for the purposes af rcsaid and such reasonable compensation as they should respectively receive for their services or care.” Held, that He¡en A. Bearup was not beneficially interested, or disqualified from testifying to the execution of the will under Code Civil Procedure, § 839.
    Appeal from a decree of the surrogate of Jefferson county denying an application to admit the alleged will of Harriet Chase, deceased, to probate.
    The will of testatrix directed that Helen A. Bearup and another named, have the care and charge of an invalid son of testatrix, and the e'xecutors were directed to pay the persons named, for such care, “ such reasonable sums from time to time as they or either of them may fairly expend for the purpose aforesaid, and such reasonable compensation as they should respectively receive for their services or care. ” '

      Lansing & Rogers, for executor and other app’lts; C. , W. Thompson and Hannibal Smith, for contestants.
   Follett, J.

Appeal from a decree of the surrogate of Jefferson county, refusing to admit to probate the will and codicil of Harriet Chase, deceased.

The draughtsman of a will, though life is an attorney, is not incompetent under section 835, Code Civil Procedure, to testify in support of the will, to the instructions received from the testator in respect to the provisions to be incorporated in the will. Sheridan v. Houghton, 6 Abb., N. C., 234; S. C., 16 Hun, 628; affirmed, 84 N. Y., 643; Matter of Chapman, 27 Hun, 573; Whelpley v. Loder, 1 Dem., 368; Hebbard v. Haughian, 70 N. Y., 54. A trustee under a will, who is entitled to a reasonable compensation for his services, is not incompetent under section 829 of the Code of Civil Procedure, to testify in support of the will. Code of Civil Procedure, § 2544; Rugg v. Rugg, 83 N. Y., 592; In re Will of Huestis, 23 N. Y. Weekly Dig., 224. Proponents offer to prove, by the draughtsman of the will (who is an attorney and also a trustee under the will), the instructions received, and they were carried out by the will, was erroneously rejected. The ruling that Helen A. Bearup is incompetent, under section 829, Code Civil Procedure, to testify to personal transactions with the testator, was error. She is not a legatee or devisee, and falls within the rule applicable to executors.

. It was error to permit the contestant to prove, over proponent’s objection and exception, by Munson Cook, the statements of the draughtsman; and it was also error to permit the contestant to prove like statements by Emma Lawton. The declarations of the draughtsman in respect :to the mental condition of the testatrix were incompetent. -It was incompetent for the contestants to show by these witnesses that the draughtsman made statements indicating that, in his opinion, the testatrix was incompetent to transact business. Had he testified he might have been contradicted, but his evidence was excluded by the surrogate. These errors are not such as may be disregarded under section 2545, Code Civil Procedure, because they bear directly upon the issue of fact upon which the decree rests.

The decree of the surrogate is reversed and a new trial is ordered before a jury upon the issues to be settled, with costs to abide the event.

Boardman, J., concurs.

Hardin, P. J.

Because Helen A. Bearup was the donee of a power, with compensation for “services and care,” it does not follow that she was beneficially interested, or disqualified from testifying to the execution of the will. McDonough v. Loughlin, 20 Barb., 238; Pruyn v. Brinkerhoff, 57 id., 176; S. C., 7 Abb. (N. S.), 400; Children’s Aid Society v. Loveridge, 70 N. Y., 387; Rugg v. Rugg, 21 Hun, 383; affirmed, 83 N. Y., 592; Code Civil Procedure, § 2544.

I concur in Brother Follett’s opinion, and agree that the erroneous rulings by the surrogate call for a reversal