author: Hardest, J. :

text:
    WILLIAM SMITH, Respondent, v. WILLIAM TIFFANY, Appellant, Impleaded with others.

      Assignment of a mortgage by a foreign administrator — vests the title thereto in the assignee.

    This action was brought to foreclose a mortgage on lands in Oswego county, given by the defendant, a resident thereof, to one Reynolds, who died in Illinois, where an administrator was appointed, by whom the mortgage was assigned to this plaintiff.

      Held, that the assignment vested the title in the plaintiff, and that he was entitled to maintain the action.
    Appeal by the defendant from judgment, entered upon the trial of this action by the court at Special Term, in favor of the plaintiff. The action was brought to foreclose a mortgage made by defendant to secure his bond, dated October 1, 1866, given to S. Hubble Reynolds, for $1,000, covering lands in Oswego county, where the defendant resided and now resides; it was payable in this State. The mortgagee died in Galesburg, Knox county! Ill., whore he resided, and one Lcander B. Reynolds was appointed by the Knox County Court his administrator, and, as such, he assigned the bond and mortgage to the plaintiff.
    The answer admits the execution of the bond and mortgage and their non-payment, and denies the other parts of the complaint, but sets up no defense.

      William Tiffany, in person, for the appellant.

      Earl & Prescott, for the respondent.
   Hardest, J. :

The evidence abundantly established that S. H. Reynolds owned the bond and mortgage at the time of his death. Also that Leander B. Reynolds was duly appointed his administrator by the County Court of Knox county, Ill., and thereafter he assigned the bond and mortgage to the plaintiff who resides in this State, and duly acquired title to the same. It may be conceded, as the learned appellant argues, that the administrator appointed in Illinois could not have maintained an action in this State upon the bond and mortgage without obtaining letters in this State; but it is settled that the assignee of the administrator may maintain an action. (McBride v. Farmers’ Bank, 26 N. Y., 450; Petersen v. Chemical Bank, 32 id., 21; Parsons v. Lyman, 20 id., 103.) Under the principles laid down in these cases it must be held, that the complaint stated facts sufficient to constitute a cause of action. The averment of an assignment, duly made by the administrator, of the bond and mortgage to the plaintiff, coupled with the other allegations, was sufficient to indicate that the plaintiff had, as owner of the bond and mortgage, a chose in action which entitled him to come into a court of equity and seek its enforcement. (Beecher v. Buckingham, 18 Conn., 110; Putnam v. Ritchie, 7 Paige, 45; Vroom v. Van Horne, 10 id., 549; Schultz v. Pulver, 11 Wend., 363; Middlebrook v. Merchants’ Bank, 24 How., 267; Middlebrook v. Merchants’ Bank, 3 Abb. [Ct. App. Dec.], 295; S. C., 27 How. Pr., 474, and cases, supra.) Chapter 408 of the Laws of 1863 relates to testators who are domiciled and out of the State, and does not in terms refer to persons who died intestate out of the State, nor to their assets.

Upon the trial a commission was produced by the plaintiff and the evidence of L. B. Reynolds read therefrom. He testified that he was the administrator of his father’s estate, and that he was appointed and duly qualified, and that there “was annexed hereto an exemplified copy of his appointment as such administrator and made a part of his answer to the question and marked exhibit A.”

There was a general objection by defendant and that was overruled, and the defendant excepted. The witness then testified that he had acted as such administrator. Then exhibit A, referred to as aforesaid, was produced by the plaintiff and offered in evidence. It consisted of a petition to Knox County Court, signed and verified by one L. B. Reynolds, the filing thereof and the bond of the administrator the filing of it, letters of administration, record of the court of probate proceeding's, a full certificate of the clerk to such record, and a certificate of the judge of the court to the clerk’s certificate, and a certificate of the clerk to the signature of the judge, etc. These papers were then offered in evidence by the plaintiff and objected to by the defendant. First. That they are here as exhibits, not as original papers. Second. There is no evidence that they are original papers. Third. That they are not certified pursuant to the statutes of this State. Fourth. That there must be proof that the County Court of Knox has jurisdiction to grant letters of administration. Fifth. That there is no certificate of the Secretary of State. These objections were overruled, and the defendant excepted.

There can be no force in the first objection, as it was not any less an exemplified copy, because it had been attached to the commission, and sent forward with it. The inspection of the papers is sufficient to show they are original, so far as copies can be made to be original. They were handed up, and appear to be like certificates of that character. The form of the certificates seems to be as usual'. There was no force in the objection that proof should be given that the Knox County Court had jurisdiction of the subject-matter and in the premises. The very records and certificates established that fact prima facie. (Pepin v. Lachenmeyer, 45 N. Y., 29.) There was no force in the objection that there should have been a certificate of the Secretary of State. The certificates of the clerk and of the presiding judge were sufficient, and the record of the probate court was therefore properly proved. (People v. Snyder, 41 N. Y., 408-409 ; U. S. R. S., § 906 ; 45 N. Y., 29.)

The certificates indicate that a record was made up, and there is no force in the objection to them upon the idea that they are merely minutes. (Ferguson v. Harwood, 7 Cranch, 408.) There was no wafer or wax used for a seal, but the official seal was impressed and stamped upon the paper itself, and it retains the impression and character of the seal. It was sufficient. (Ross v. Bedell, 5 Duer, 462; Curtis v. Leavitt, 17 Barb., 309; Follett's Heirs v. Rose, 3 McLean, 332; Pillow v. Roberts, 13 How. [U. S.], 472.) It ivas conceded that the certificates were properly executed in accordance with the United States law, upon the trial by the defendant. It must be held that the probate proceedings were properly established, and that the administrator Avas properly appointed by the County Court of Knox county, Illinois, and that he entered upon his duties in the discharge of his trust, and took possession of the bond and mortgage, and duly assigned ’ them to the plaintiffs.

.The defendant takes a highly technical objection to the certificates attached to the assignment of the mortgage, and its acknowledgment. We shall spend no time to consider the objection, as we are of the opinion that the execution of the assignment was fully established by the evidence of Mr. Rhodes, and by the evidence o£ the administrator taken upon commission.

The ruling is, therefore, if erroneous within the terms and spirit of section 1003 of the Code of Civil Procedure.

We think the case was properly disposed of at Special. Term, and we must, therefore, affirm the judgment, with costs.

Talcott, P. J., and Smith:, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: HardiN, J.:

license: Public Domain

text:
    THE HOWE MACHINE COMPANY, Respondent, v. GERRITT S. AVERY, Appellant.

      The plaintiff must join in the bond, required by statute to be given to autho-rise a recovery upon a lost note.

    The bond required to be given by the Revised Statutes (2 R. S., 406, § 76), to authorize a recovery on a lost note, must bind the principal as well as the sureties ; one conditioned for its performance by the sureties alone is insufficient.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought upon a promissory note for sixty dollars. The answer denies the making of the note sued upon. The issue was referred to a referee and the trial had before him, and he reported in favor of the plaintiff, and upon his report a judgment was entered against the defendant, from which an appeal ■was taken. The note was lost after the commencement of this action and prior to the hearing before the referee. The plaintiff sought to recover upon it as a lost note, and gave evidence tending to establish its loss, and then undertook to comply with the statute, which requires a bond to be given before a recovery can be had upon a lost note; the referee approved of the sureties who had signed the instrument offered. The instrument was objected to by the defendants, viz : (1.) Not in time. (2.) Not approved by the court nor by a judge thereof, and that the referee had no power to approve of the same. (3.) It is not executed according to the statute. (4.) It is not lawfully executed. The objections were overruled and an exception was taken by the defendant. The instrument was in the following words, viz. :

      Know all men by these presents.
    That we, the Howe Machine Company, C. S. Todd & C. J. Roodenbury, are held and firmly bound unto Gerritt S. Avery, of Boonville, county of Oneida, and State of New York, in the sum of $200, to be paid to the said Avery or to his certain attorney, executors, administrators or assigns ; for which payment, well and truly to be made, we bind ourselves and our heirs, executors and administrators, jointly and severally, firmly by these presents.
    Sealed this 30th day of December, in the year of our Lord 1875.
    The conditions of this obligation is such: The said Howe Machine Company is prosecuting an action against Gerritt S. Avery, in the Supreme Court of the State of New York, and now referred to Hon. N. B. Bliss, as sole referee, to hear and determine the same, upon a promissory note made by Gerritt S. Avery to said Howe Machine Company or order, for sixty dollars, dated August 17, 1872, which the said Howe Machine Company alleges is lost.
    Now, if the said C. S. Todd & C. J. Roodenburg shall indemnify the said Gerritt S. Avery, his heirs and personal representatives, against all claims by any other person on account of such note, and against all costs and expenses by reason of such claim, then this obligation to be void ; otherwise it shall remain in force.
    The Howe Machine Company.
    M. E. VAN EST, Attorney. . C. S. TODD,
    C. J. ROODENBURG.
    I approve of the foregoing sureties.

      W. B. Bltss, Referee.

      State oe New Yoke, )

      County of Monroe. £ ss’ ’
    On this 30th day of December, A. D. 1875, before me, the subscriber, appeared M. E. Van Est, attorney for the Howe Machine Company, C. S. Todd & C.. J. Roodenburg, to me personally known to be the same persons described in and who executed the above undertaking, and severally acknowledged that they executed the same.
    WALTER, S. HuBBELL,

      Commissioner of Deeds.

    Here followed the usual affidavit of qualification by Todd and Roodenburg.
    The instrument did not purport to have any seal upon it for the principal or either of the sureties.

      George W. Smith, for the appellant.

      L. W. Fishe, for the respondent.
   HardiN, J.:

The note in suit was not produced and read in evidence, and the plaintiff was not. in a situation to recover without complying with the statute in respect to lost instruments. Section 7 5 of the Revised Statutes provides that a recovery may be had of the amount due upon such a note. (2 R. S. [Edm. ed.], 423.) Section 76 provides as follows: “But to entitle a party to such recovery, ho shall execute a bond to the adverse party in a penalty, at least double the amount of such note or bill, with two sureties, to be approved by the court in which the trial shall be had, conditioned to indemnify the adverse party, his heirs and personal representatives against all claims by any other person, on account of such note or bill, and against all costs and expenses by reason of such claim.”

The bond was not in compliance with the requirements of the statute. First. The statute requires the party to give a bond as principal with two sureties. The condition clause is, viz.: “ Now if the said C. S. Todd and C. J. Roodenburg shall indemnify the said G. S. Avery.” * * * It does not purport that the principal, the plaintiff, shall indemnify and that the two sureties shall be obligated jointly and severally with the principal. The defendant is entitled to have three bounden parties in the condition clause of the .bond. Second. There was no proof given that the bond was executed by the plaintiff, “ The Howe Machine Company.” The acknowledgment by Van Est, attorney for the Howe Machine Company, “ simply shows that Van Est acknowledged” that he “ executed the same.” Third. Nor does the case show that any seal was attached to the instrument, either by the machine company, its agent, or either of its sureties.

We think, therefore, that the plaintiff did not comply with the 76 th section, supra, and that it was not entitled to have the approval of the referee ; nor was it in a situation to recover upon the lost note, and the referee therefore erred in allowing a recovery. The plaintiff did not entitle itself to such recovery. As this conclusion leads us to reverse the judgment entered upon the report of the referee, we do not pass upon the other questions involved in the action.

The judgment should be reversed and the order of reference vacated and a new trial ordered, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

Judgment reversed and new trial ordered, costs to abide the event, and order of reference vacated.


author: MulliN, P. J.:

text:
    FORTUNE C. BROWN and HOBART F. ATKINSON, Executors, Etc., of MARY CLARK PROCTOR, Deceased, Appellants, v. WARREN R. CLARK and TRUMAN A. PROCTOR, Respondents.

      Mevival of a willrevoked hy the marriage of the testatrix — what sufficient to effect.

    Where a married woman seeks to revive a will, revoked hy her marriage, hy a codicil thereto, it is not necessary that the will itself should he re-executed, re-acknowledged or republished, hut it is sufficient, if there he a clear and distinct recognition of the existence and validity of the will, at the time of the execution of the codicil.
    Appeal from tbe decree of tbe surrogate of Monroe county, refusing to admit to probate tbe last will and testament of Mary Clark Proctor. Tbe maiden name of Mrs. Proctor was Mary J. Clark.
    On tbe 25th of May, 1873, Miss Clark executed a last will, whereby sbe disposed of a large personal estate and valuable real estate among a few of ber relatives, and tbe pai't not given to them was given to divers incorporated religious bodies and to charitable and pious uses.
    ■ Soon after tbe execution of tbe will sbe went with ber father to Europe, and remained there one year, when sbe returned to this country. In October, 1876, sbe intermarried with Truman A. Proctor and cohabited with him till ber death in October, 1877. After ber marriage to Proctor sbe was informed that ber will, which she had executed before ber marriage was revoked by such marriage, and that in order to revive it she should execute a codicil to it, in which sbe should declare that sbe revived said will. In conformity to this advice sbe executed a codicil which contained the following, amongst other provisions, viz. :
    “I, Mary Clark Proctor, of Rochester (formerly Mary Jane Clark), the. testatrix in a last will and testament made by me under the latter name, dated 25th August, 1873, consisting of eight pages (witnessed by C. W. Huntington and Henry E. Ball), do hereby republish, reaffirm and adopt the aforesaid instrument as my present will, in like manner as if now executed by me, but modi-fled pursuant to this codicil, which in connection with, and amendment of my will, I now publish and declare together as constituting my last will and testament.”
    ' After the death of Mrs. Proctor the executors named in her will presented the said will and codicil to the surrogate of Múnroe for probate, whereupon the surrogate issued the necessary citations requiring the husband and next of kin of Mrs. Proctor to appear before him at a time and place specified to attend the probate of said will. The brother of Mrs. Proctor appeared in obedience to said citation and opposed the probate of said will on the following grounds:
    First. The said instruments are not, nor is either of them, the last will and testament of the deceased.
    Second. The alleged will and codicil were procured by undue influence.
    Third. The deceased was not of sufficient capacity to understand, and did not understand the contents of said instrument purporting to be her last will and testament, and in the month of October, 1876, she married Truman A. Proctor, and said alleged will was thereby revoked and became null and void.
    Fourth. Said instruments were not executed by Mrs. Proctor and published as her last will and testament.
    The capacity of the testatrix to make a will was clearly established, and the execution of both the will and codicil were sufficiently proved ; unless the surrogate should hold that the testatrix could not revive the will by the codicil, except by re-executing and republishing it.
    The marriage of the testatrix after the execution of the will was conceded before the surrogate, and the contestants insisted that the marriage revoked the will. To this it was answered, that if that was so, the execution of the codicil revived it.
    The surrogate, after hearing the proofs and allegations of the parties, held that the will made in August, 1873, was duly executed at its date, and that the testatrix was competent to make it. He also held that there was no undue influence exercised over her, and that the codicil was also duly executed, but that inasmuch as the testatrix did not re-execute the original will, she died without a will; that as there was no will there could be no codicil, and he refused to admit the will to probate. The surrogate in his opinion, said, among other things, “ to re-establish the instrument of August 25, 1873, as a will, there must be a re-execution or a new execution of it. The same formalities must be complied with as in the first instance. In the execution of the codicil of December 7, 1876, these formalities were all complied with except the third, which requires the declaration by the testator that it is his last will and testament Instead of this, it was declared to be a 1 codicil to her last will and testament, and a reaffirmation of the latter.' Had this declaration then been that the instrument was her last will and testament, instead of a codicil, I should have no hesitancy in admitting it to probate as her will. But declaring it to be a codicil is not declaring it to be a will; the terms are not synonymous.”
    From this decree the proponents appealed.

      Ii. B. tSelclen, for the appellants.

      J. O. Oochrane, for the respondents.
   MulliN, P. J.:

I infer from the case as presented to us, and from the opinion of the surrogate, that the question whether, since the passage of the married woman’s act in 1848, the provision of 3 Revised Statutes, (§ 39, 145), which declares that a “will executed by an unmarried woman should be deemed revoked by her subsequent marriage” is not repealed, and that married women may not, since the passage of the act of 1848, make a will relieved from the restriction imposed by the section cited, was not discussed before nor considered by the surrogate.

The counsel for the contestants have not mentioned it in their points, nor do I remember that they discussed it on the argument of the appeal. It would be improper under these circumstances to assume to decide that question until the counsel of the respective parties are heard upon it.

I shall assume, for the purposes of this case without discussion, the question that a married woman’s will, revoked by her marriage after its execution, may be revived by a codicil duly executed after her marriage. Such is the rule in England. (Williams on Executors, 185), and is also the law in this State. (Van Cortlandt v. Kip, 1 Hill, 590, and cases cited; Dayton on Surrogates, 142, 143.)

The codicil, in order to revive the prior will, must be executed with all the formalities prescribed by the statute for the due execution of a will. (Dayton on Surrogates, 53.)

The surrogate has held in this case that the codicil was properly executed, but refused probate to it and to the will itself, because a re-execution of the will itself was not proved; in other words he refused to admit the will to probate on the sole ground that the testatrix did not, at the time of the execution and publication of the codicil, declare that the instrument made up of the will and codicil was her last will and testament.

The evidence of the subscribing witnesses to the will, as to the execution of it taken at the time of the probate of the codicil, is defective for the reason stated by the surrogate, and unless that defect was cured at the time of the proof of the codicil, the decree of the surrogate is right and must be affirmed.

'Whittlesey, one of the witnesses to the execution of the codicil, testified, on the occasion of the attempt of proponents to prove the execution of the will and codicil, among other things, that a paper shown to him (being the codicil hi question), was in his handwriting, and he saw it executed on the day of its date.

It was signed by Mrs. Proctor in his presence, and in the presence of Huntington the other subscribing witness. Mrs. Proctor said it was a codicil to her last will — the will was lying on the table and was the will sought to be proved, and she requested the witness and Huntington to sign it as subscribing witnesses, and they did then and there and in her presence, and the presence of each other; he was requested to go to the office, where the codicil was signed, by Mr. Atkinson, who had been the agent of her father during the absence of the latter in Europe ; Atkinson said Mrs. Proctor wanted us to go to the office.

On the further examination of the witness he states what occurred at the time of the execution of the codicil more succinctly, as follows: “I told Mrs. Proctor as soon as we were all together that the formality of publishing this codicil must now be gone through, that we had sent for Mr. Huntington as a witness, for the reason that he was a witness to the original will; she then signed this instrument, this codicil in our presence. I then asked her to state what it was that she had been signing, and she replied it was a codicil to her last will and testament in republication and revival thereof.

The will before us was pointed out as the will to be republished and revived. She then, at my desire, stated what she wished us to do, as another formality was necessary. She replied that she wished us (Huntington and myself) to subscribe it as witnesses, which we then did. Before Huntington subscribed it I read over the attestation clause, which is my invariable practice, telling him if it was all true as there stated, to sign it; if not true, not to sign it. I called his attention to all the details necessary to the republication of the will, he read the clause and then signed it. * * * Mrs. Proctor was very careful to point out to us this identical will, and to say that she had it revived.

Charles W. Huntington, the other subscribing witness to the codicil, testified that the signature to the codicil of Mrs. Proctor’s will was his, and he saw it signed by her, and by Whittlesey and himself as witnesses. At a subsequent day Huntington was again called by the proponents, and testified that since his former examination he had talked with Whittlesey and reflected upon the matter so as to remember more distinctly than before what took place at the time of the execution of the codicil.

The first that occurred after going to Atkinson’s office, where the codicil was executed, was that Atkinson introduced him to Whittlesey, then Whittlesey read to him the last clause in the codicil. He said Mrs. Proctor wished him to act as a witness to the codicil, as he had been a witness to the will. He particularly referred him to the will that was lying on the table, and he told Mrs. Proctor they (the witnesses) were ready to sign it, just what he said he (witness) did not remember. Mrs. Proctor took Whittlesey’s seat and signed the codicil. Whit-tlesey told her it was necessary for her to ask us to sign it, as witnesses, which she then did ; he then made the remark that impressed itself on his mind that she must repeat it, as it was written in the clause ; and then she repeated it from the clause on tbe codicil, and sbe also said it was a codicil to ber last will and testament, and asked ns to sign it, and we did. One or two persons, wbo were present at tbe execution of tbe codicil, corroborate tbe subscribing- witnesses as to wbat occurred on that occasion.

Tbe due execution of tbe codicil was duly proved, and if its due execution revived tbe will, then tbe surrogate erred in refusing to admit to probate. It will not be claimed, I apprehend, that it was necessary to revive tbe will that tbe testatrix should re-sign it.

Tbe evidence given before tbe surrogate proved that tbe will was signed by tbe testatrix at tbe time of its execution. But that proof was not such evidence as established its due execution after it bad been revoked. There must be further evidence of execution, but all that was required further was a clear and distinct recognition of tbe existence and validity of tbe will, when tbe codicil was presented for px-obate. Tbe proof of tbe due execution of tbe will was not done away by tbe marriage, but as tbe will itself was revoked it ceased to be of any avail until tbe testatrix by tbe codicil and recognition of it gave it new life, and then tbe will and codicil became valid and operative instruments. A more unequivocal recognition of tbe will and intention to revive could not be made, than was made by tbe testatrix at tbe execution of tbe codicil.

Tbe mere act of executing a codicil and publishing it as such, implies tbe existence of another instrument which is called tbe will, and incorporates the will with the codicil, and tbe due execution of tbe .codicil is a due execution of the will. ■

In Williams on Executors (185) it is said a codicil will amount to tbe republication 'of tbe will to which it refers, whether tbe codicil be or be not annexed to the will, or be or be not confirmatory of it, for every codicil is in construction of law part of a man’s will, whether it be so described in such codicil or not, and as such furnishes conclusive evidence of tbe testator’s considering bis will as then existing. (See, also, note second to pages cited.)

It may be that the proposition just stated should be modified, yet to tbe extent that is necessary to sustain the rule, as we have stated it, it seems to me good law. It is doubtless true that tbe English statute, regulating the manner of proving wills, is in many respects different from ours, yet the end to be attained by both being the same, the practice under one should be substantially the same under the other, unless a positive enactment has prescribed a different practice.

I should have been better satisfied with the will under consideration had the testatrix made a more generous provision for her relatives, but being of sound and disposing mind and memory, and not under improper influence, it was her privilege to make such disposition of her property as she thought to be just and ' wise, and the court has neither the power nor the inclination to deprive the parties, to whom she has given the property, of any portion of it.

If the tendency of the ago is for owners of property to give to religious and benevolent purposes and institutions too large a share of it, to the prejudice of relatives having claims on their bounty, it is the province of the Legislature to interfere and prevent it. The courts have power only to see that the disposition of property to benevolent and religious purposes is made in conformity to the law. Their duty is to see that wills are duly executed, and to give effect to their provisions when in conformity to law.

The decree of the surrogate, refusing to admit the will and codicil to probate, is reversed, with costs, to be paid out of the estate, and the proceedings áre remitted to the surrogate of Monroe, with directions to admit the same to probate.

Present — Mullin', P. J. and Talcott, J.

Smith, J., not taking any part in the decision.

Decree reversed, with coste — the appellants to be paid out of the estate, and proceedings to be remitted to the surrogate of Monroe county, with directions to admit will and codicil to probate.


text:
    JAMES F. FOX, Administrator, etc. WILLIAM E. CARR, Deceased, Respondent, v. THOMAS B. CARR, Individually and as trustee of WILLIAM E. CARR, under will of EDSON CARR, Deceased, Appellant.

      Devise — when, it vests an absolute title and, not merely a life estate.

    A testator devised all his residuary estate to his executors, and directed them to convert the same into money, and pay over one-half to H. T. Carr, a son; and the other half to a trustee m his will named, who was directed to invest the principal, and pay over the interest to his son William E. Carr, for his use and benefit; the testator declared the property so placed in the charge of the trustee, to he the share of his said son William in his estate, and that it was to he held for his benefit “ during his natural life, when he may dispose of the same by will at his pleasure.”
    William E. Carr, having died intestate, held, that he took the absolute estate in the one-half devised to his trustee, subject to the trust, and not merely a life estate therein.
    That upon his death intestate his administrator was entitled to recover the same from the trustee.
    Appeal from an interlocutory judgment, entered upon the trial of this action at tbe Ontario Special Term.
    The action was brought to compel the defendant to account for certain moneys received by him as trustee for William E. Carr, deceased, the plaintiff’s intestate, and to pay over to the plaintiff any balance of such moneys which may be found in his hands.
    In the fall of 1861 Edson Carr, of Canandaigua, in the county of Ontario, died, leaving a last will in and by which he devised to the defendant, one of his sons, a certain promissory note and certain books. All the rest and residue of his estate, both real and personal, he devised to William Autis and Henry T. Carr, who he appointed executors of his said will and to their assigns forever, as joint tenants, in trust for the uses and purposes therein specified.
    They were directed to sell the whole of said estate at public or private sale, and convert the same into money, and to divide the money received into two equal parts, and to pay over one part to Henry T. Carr as his share of the testator’s estate; and to pay over the other part to Walter S. Hubbell in trust, and whom the testator appointed trustee. The trustee was in and by said will instructed and directed, “in tbe execution of bis trust, which is created for the sole benefit of my sou William E. Carr, to invest the said part or moiety of my estate committed to his care and charge, upon the security of bond and mortgage upon real, landed estate, otherwise unincumbered, of double the money so secured, at least; and annually, or so often as the interest thereon shall be paid, to pay the same over to my said son William E. Carr, for his use and benefit. And I do declare the moiety of my property so placed in the charge of Walter S. Hubbell, as trustee, to be the share of the said William E. Carr in my estate ; and my intention is, that the same shall be held and used as herein provided for his benefit, during his natural life, when he may dispose of the same by will at his pleasure.”
    The will was duly proved, the executors qualified, and the estate was converted into money.
    Hubbell declined to accept the trust, and one Beals was duly appointed in his place, and took upon himself the duties of the trust; gave a bond for the faithful discharge of his duties as trustee.
    Beals received from the executors something over $6,000 as the share of William E. Can-, in his father’s estate, and this money was invested in conformity to the provisions of the will, and the income paid over to William.
    In 1871 Beals upon his own petition was allowed to resign his office of trustee and the defendant was appointed in his place. Defendant gave the security required and took upon himself the duties of the trust and received from Beals about the sum of $6,334.34, being the amount of the trust fund in the hands of Beals.
    At some time prior to June, 1874, the said William E. Carr removed with his family to Noi’th Carolina, as did the defendant, who took with him the trust fund belonging to said William E. In July, 1874, William E. Carr died intestate at Smithville, in said State of North Carolina, and in May, 1875, his widow Mary E. Carr and John L. Wescott were duly appointed administrators of the goods, etc. of said William E. Carr, by the probate judge of Brunswick county in said State. Subsequently, and in June, 1876, the plaintiff was duly appointed administrator of the goods, etc. of William E. Carr in this State, on the application of the widow, there being property belonging to the intestate in this State and .within the jurisdiction of the surrogate making the appointment. The administrators appointed in North Carolina and in this State duly qualified. The testator Edson Carr left him surviving three sons, William E., Thomas B. and Henry T. Carr. This action is brought by the administrator appointed in this State to compel •the defendant as trustee of William E. Carr, deceased, to render an account of the monies received and paid out by him as such trustee, and to recover such moneys as shall be found to be in his hands belonging to said trust fund.
    The complaint charges, amongst other things, that the defendant has neglected to invest the moneys that came into his hands as such trustee, and has applied them to his own use. This allegation is denied by the defendant; the other matters alleged in the complaint are admitted.
    The cause was tried at Special Term in Monroe, and the foregoing facts were found by the court, and judgment rendered that the prayer of the complaint be granted, and it was referred to a . referee to state the account between the parties, and from that judgment the defendant appeals.
    AT. L. OamstocJc, for the appellant.

      Metcalf <& Field, for the respondent.
   MulliN, P. J.:

The plaintiff bases his right to recover upon the proposition that by the will of the intestate’s father, one-half of the proceeds of the real and personal property left by him was bequeathed to William E. Carr, and the title thereto vested in him absolutely, subject to the power given to the trustee to invest the same and receive the interest and pay over the same to him during his lite. The defendant on the other hand insists that by the will the intestate got a life estate only in the trust fund, and that on his death, without having designated to whom said fund should pass, it fell hito the residuum of the testator’s estate to be divided among the next of kin, and that as to to that property the testator died intestate.

The conclusion at which Justices RawsoN and ANGLE arrived, upon the construction of the clause by which the property in question was given to William E. Carr, seems to me to be entirely correct. The intention of the testator obviously was to give to his son William E. one-half of his real and personal property as his share of the testator’s estate, charged however, with a trust to invest the money and to receive and pay over the interest to the cestui que trust during the life of the latter. When the intention of the testator is manifest, it must have effect unless the language of the will forbids it.

So far from the will in this case forbidding such a construction it is to my mind conclusive of it. This argument is clearly stated in the brief opinion by RawsoN, J. To give a construction to the clause under consideration that would take from the widow and children of the intestate a portion of the trust fund, and give it to the defendant, who has had his full share of his father’s estate, would be most unjust to them, and could only be done in compliance with the manifest requirements of the will.

I have read over the very able brief, the defendants counsel has handed up, but fail to find any case that requires the court to give to the clause of the will in question the construction for which he contends. If we are right in holding that the bequest to the intestate vested in him, the title to the property in question subject to the trust, then the plaintiff as administrator in this State is entitled to maintain the action. (Dayton on Surrogates, 194, 195, 224, 239; Williams on Executors, 376; Chapman v. Fish, 6 Hill, 554.)

The judgment should be affirmed, with costs.

Present — Mullin', P. J., Talcott and Smith, J.J.

Judgment affirmed, with costs of appeal.


author: MulliN, P. J. :

text:
    SAMUEL MORRIS as Administrator, etc., of MARY MORRIS, Deceased, and others, Respondents, v. SAMUEL BUDLONG, Appellant, Impleaded with others.

      When the relations of •parties are sueh a,s to render a concealment fraudulent.

    A farm owned by one Moms being about to be sold under a decree of foreclosure, his wife applied to one Budlong, her brother, to bid the same in at the sale, discharge the liens and hold the title as security, giving her one year to redeem. In pursuance of this agreement, Budlong bid in the farm, entered into possession, cultivated the same and appropriated the profits thereof and certain articles of personal property to his own use. Men hired by him were also boarded by Mrs. Morris. Moneys were paid to him by Mrs. Morris to apply on the amounts advanced. Thereafter Mrs. Morris applied to him for a statement of the account, but he refused to render it, stating that there was due to him §11,500. This amount she paid to him and took a deed of the farm. Subsequently Mrs. Morris found that Budlong had neglected to credit her -with the use of the farm, the value of the articles taken or of the board of the men. Held, that considering the relations existing between Mrs. Morris and Bud-long, it was a fraud on her not to disclose the fact that he had omitted these credits in stating the amount due to him, and that she was entitled to recover the amount of the overpayment made to him.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe report of a referee.
    Iu April, 1856, John Morris was the owner of a farm situated in the town of Frankfort, in the county of Herkimer, subject to a mortgage for $16,250 given by Morris and wife to Betsey Nurse.
    On the 8th December, 1859, proceedings to foreclose said mortgage were instituted, and the sale was to be made March 5, 1860. The farm was incumbered by several judgments that had been recovered against Morris. Morris was absent from home, and his wife had the care and management of his property in his absence.
    Mrs. Morris being unable to satisfy said lieu, applied to the defendant Budlong to attend the sale of said mortgage premises on the 23d March, 1860, to which day the sale thereof had been postponed, and bid the same off, pay the sum for which they were struck off to him, and discharge the other liens thereon, and hold the title as security for the moneys so advanced, and give to her a year in which to redeem the premises. The proposition was accepted by Budlong, and he agreed with her that upon the payment of said sums he would convey the said premises to her.
    Budlong attended the sale, bid in the property for $11,290 87, and took a conveyance thereof to himself. He paid down $1,290 87 of the sum bid by him, in cash, and for the balance he gave the executor of. Mrs. Nurse, who owned the mortgage, a mortgage on said farm to secure the balance of the purchase-money.
    The amount paid by Budlong in discharge of liens on said premises, junior to the mortgage, was not proved on the trial, nor found by the referee.
    By an arrangement between Mrs. Morris and Budlong, entered into after the sale of said farm, Budlong went into possession thereof, cultivated the same, and received to his own use nearly all the proceeds, for several years.
    Men hired by Budlong boarded with Mrs. Morris, and her sons worked on said farm for him during the time he carried it on. Budlong paid the interest on the mortgage given by him to the executor of Mrs. Nurse, until January 1, 1860, and on that day he paid $2,000 of the principal.
    In addition to the board of men and services of Mrs. Morris’ sons, Budlong had divers articles of personal property. He was paid the sum of $20,000" in money to apply in payment of the amount paid by him in the purchase of said farm, and in satisfaction of the liens thereon.
    Budlong required one Ferguson, who was liable with John Morris, the husband of Mrs. Morris, for a large share of the debts of Morris, to give him (Budlong) a mortgage on his farm in Herki-mer county, as security for the sum so claimed by Budlong to be due to him, and to this Ferguson assented, provided Mrs. Morris would give him a mortgage on a part of the farm to be conveyed to Mrs. Moyris.
    On or about .the 31st March, 1866, Mrs. Morris applied to Budlong for a statement of the account between them ; but Bud-long omitted to render such an account in writing, or otherwise, but told her there was due to him $11,500 for advances to pay for the farm, which claim she conceded to be correct, and that sum was paid to him.

      Budlong had taken from one Hubbell the transfer of certain claims or demands he held against Morris and Ferguson, and on which he claimed there was due to him the sum of $3,400, and declined to reconvey the farm until this sum was paid or secured to him.
    Mortgages were executed in accordance with these claims. Upon the payment of the money advanced to pay for the farm and the delivery of the mortgages last-mentioned, Budlong executed and delivered to Mrs. Morris a deed of said farm.
    After the conveyance by Budlong to Mrs. Morris, she discovered that she had not been allowed by Budlong upon his indebtedness for said farm for the board of Budlong’s hired men and the wages of her sons, for personal property belonging to her, appropriated by Budlong to his own use, and to the rents and profits of the farm during the time he was in possession and which, if.allowed, would more than pay Budlong all his advances and compensate him for his time and trouble in the care and management of said farm, and that there was no consideration for the mortgage given by Ferguson to Budlong, nor for that given by Mrs. Morris to Ferguson, and this action was commenced to compel such allowance. The administrators of Mrs. Ferguson foreclosed the mortgage given by Mrs. Morris, bid in the property and went into possession, and were in possession of the same when this action was commenced.
    The plaintiff, m his complaint in this action, alleges the foregoing facts, and that when the final arrangement was made between his intestate and Budlong in March, 1866, and she paid him for-advances made to pay for said farm, and the mortgages were given by her and Ferguson ; that Budlong rendered no account of the sums paid or received by him, but claimed a sum in gross as above stated, as due to him, and that relying on his integrity and regard for her as his sister, she yielded to the claim so made, in ignorance of the fact that no allowances had been made to her for the claims hereinbefore enumerated and he demands judgment; that an account be taken between her and Budlong in regard to the dealings between them, and that the mortgage from Ferguson to Budlong and from Mrs. Morris to Ferguson bo canceled and discharged, and that the purchasers of the premises mortgaged to Ferguson by Mrs. Morris convey the same to the plaintiff and account for the rents and profits, and also asked for a judgment for the amount paid Budlong over and above what was actually due to him. The defendants in their answer deny substantially all the allegations of the complaint upon which the light of the plaintiff to relief rests.
    The cause was referred and the referee, after hearing the proofs and allegations of the parties, found the facts as above stated and granted the relief prayed for in the complaint, and from the judgment entered on the report the defendants appeal. This action was commenced the 24th of July, 1874.

      Francis Q. Fernán, for the appellant.

      Risley, Stoddard & Matteson, for the respondent.
   MulliN, P. J. :

Unless the plaintiff’s intestate was induced to enter into the settlement or adjustment of the claims of the defendant Budlong against her by fraud, this judgment cannot be sustained. Mrs. Morris was the sister of Budlong, and, in the absence of evidence of any difficulty between them, it must be assumed that they entertained for each other that measure of affection which exists between those standing in that relation to each other.

It is true that there is evidence that the families of .Budlong and Mrs. Morris were not for a time on visiting terms; but it does not appear that the feud extended to Budlong and Mrs. Morris. Indeed, the readiness with which she applied to him for assistance in her trouble, and with which ho consented to aid her, justifies the inference that personally they were on friendly terms. Budlong’s purchase of the farm for her, and the payment of the liens upon it, were acts of the greatest kindness, and evidence of sincere affection on his part for his sister. It was natural, in view of these acts and the relationship between them, that Mrs. Morris should repose the greatest confidence in Budlong’s regard for her, and she would have been very ungrateful had she doubted his good faith in his dealings with her. Her husband, as I understand the evidence, was in jail when Budlong agreed to bid in the farm and pay the judgments that were liens upon it. There was no one to aid her, who had the pecuniary ability, except Budlong. Her sons, I infer, were young, and wholly without means. She could not do otherwise than trust to him. When, therefore, they met at Richardson’s office, in Utica, in March, 1866, and Budlong neglected and refused to give her a statement of the amounts advanced by him, and of the sums for which Mrs. Morris was entitled to credit, but he stated the gross amount which was owing him by Mrs. Monis, she might well place confidence in the accuracy of the statement of the amount due, and assume that he had arrived at the balance after giving her credit for all sums, to credit for which she was entitled. The non-disclosure of the fact that he had not given her credit for the board of his men, and for the services of her sons, or for the personal property appropriated by him, was as to her a fraudulent concealment of facts of which she was entitled to be informed, and of which he was in duty bound to disclose. In short, it was a fraud upon her, which entitles her to relief, unless Budlong has some good and sufficient excuse for thus acting.

. The appellant’s counsel insists in his points, and in his argument that plaintiff is not entitled to relief, on the ground of fraud, because fraud is not charged in the complaint nor found by the referee. It is true that fraud is not charged in the complaint; but facts are alleged from which fraud may legitimately be inferred. It would have been better pleading to have charged the defendant with having procured the mortgages by fraud, and with fraudulently concealing from plaintiff this fact, that he had not given her credit for divers sums, to credit for which she was equitably entitled. Fraud was proved, and' although the referee, in his findings, alleges that plaintiff was induced to concede the amount claimed by defendant to be due on the settlement, by fraud, or through mistake on her part; and the proof sustaining the finding, the parties should not be subjected to the expense of another trial, when the error can be corrected by amendment, if deemed necessary. It is the duty of the court, under the circumstances, to treat the pleading as amended, and affirm or reverse the judgment as justice shall require. The statement in the finding that the adjustment made at Mr. Richardson’s office was entered into by plaintiff through a mistake of facts is in a certain sense correct; but it is the mistake that is made by every person who is induced by fraud to do an act which is injurious to his interests. But the causa causans is fraud, and the plaintiff’s right of action has its origin in the fraud of Budlong.

In the first Story’s Equity Jurisprudence (§ 309), the learned author says the courts of equity do not sit to enforce what has, not inaptly been called, a technical morality. If confidence is reposed it must be faithfully acted upon and preserved from any intermixture of imposition. If influence is acquired it must be kept free from the taint of selfish interests and cunning and overreaching bargains.. Courts of equity will not therefore arrest or set aside an act or contract merely because a man of honor would not have entered into it. There must be some relation between the parties which compels the one to make a full discovery to the other or to abstain from all selfish projects. But when such a relation does exist, courts of equity acting upon this superinduced ground, in aid of general morals, will not suffer one party, standing in a situation of which he can avail himself against the other, to derive advantage from that circumstance, for it is founded in a breach of confidence. The general principle which governs in all cases of this sort is that, if a confidence is reposed and that confidence is abused, courts of equity will grant relief.

, That Mrs. Morris placed implicit confidence in Budlong cannot be questioned. That she kept no account of the money paid or property delivered to him, or of the services rendered by her to him, is found by the referee.

It was the duty of Budlong' to keep an account of his dealings with Mrs. Morris so that a fair and just settlement of their dealings might be had. This he did not do. All the information ho would give her, as to his transactions with her and on her behalf, was his verbal statement that a gross sum was due him from her. From the relationship between them she might well believe that the balance claimed was actually and honestly duo to Budlong, after deducting all payments made by her to him and all property received by him to apply on his advances. But it is found by the referee that nothing whatever was allowed by Budlong to her, for divers advances made by her to him, to apply in reduction of his demands against her. ’ Budlong knew the state of the accounts between himself and Mrs. Morris, and he knew that she did not know it, he stood in the attitude of taking-advantage not only of his superior knowledge but of her confidence in him to deceive and defraud her. It is no answer to this charge to say it was the duty of Mrs. Morris to ascertain whether all proper allowances has been made her, before she admitted her liability to pay the balance claimed by Budlong and secured it by the mortgage to Ferguson, and had she been vigilant she might have ascertained that Budlong claimed too much as due to him.

. The same may be said in almost every case of fraud. The party defrauded might by diligence ascertain the truth, detect the fraud and defeat it. But it does not he with the party guilty of the fraud to impute want of vigilance in the party defrauded, unless the transaction is such as to put the other party' on inquiry and that inquiry, if made, would have resulted in a discovery of the fraud.

The appellant’s counsel insists that Mrs. Morris ought not to maintain the action because she could not enforce the performance of the agreement between her and Budlong as to the purchase of the farm on the foreclosure by Budlong, and the conveyance of it by him on payment of his advances therefor.

"When that arrangement was made the title to the farm was in Morris, but the sale on foreclosure divested his title and it passed to Budlong.

If it be true that Mrs. Morris had not such an interest at the time the title was conveyed to Budlong as would enable her to compel him to convey it to her on payment of his advances, yet when he accepted payment from her, and treated her as the person entitled to a conveyance, he cannot shield himself from the consequences of fraudulently exacting from her a greater amount than was honestly due him, upon a fair settlement of the accounts between them.

After he had consented to accept payment of his advances from Mrs. Morris, an accounting became indispensable, and into that accounting must enter all sums which Budlong had received to apply on his advances, and this entitled Mrs. Morris to a full and accurate statement of all sums received by him, which should go in reduction of his claim.

A court of equity only can set- aside the mortgages given by-Mrs. Morris to Ferguson, and by Ferguson to Budlong, and the conveyances following the foreclosure of the Ferguson mortgage. In such case the statute of limitations does not bar the right of recovery until the expiration of six years from the discovery of the fraud. (Code of Civil Procedure, § 89, subsec. 6.) .

The referee finds that plaintiff did not discover the fraud until August, 1872. The action was commenced in July, 1874, so that the statute is not a bar.

The judgment should be affirmed, with costs.

Present — Mullin, P. J., Talcott and Smith, JJ„

Judgment affirmed, with costs.


author: 'Mullot, P. J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN G. HISLOP v. GEORGE W. COWLES, County Judge of Wayne County.

      Excise law — chapter 628 of 1857 — violation of section 18 nota misdemeanor.

    One who sells or gives away strong or spiritous liquors or wines, to an intoxicated person, in violation of section 18 of chapter 628 of 1857, is not guilty of a misdemeanor, nor is he liable to imprisonment therefor; he is subject only to a fine of not less than ten nor more than twenty-five dollars.
    Cektioeari to review proceedings upon the return to a writ of habeas corpus, had before the county judge of Wayne county. Section 18 of chapter 628 of 1857 reads as follows :
    “ § 18. Whoever shall sell or give away any strong or spiritous liquors or wines, or shall suffer any such liquors or wines to be sold or given away, under his direction or authority, to any intoxicated person, shall be subject to not less than ten or more than twenty-five dollars for each offense.”
    The question presented was whether a violation of this section was a misdemeanor.

      Charles McLouth, for the relator.

      M. J. Greenwood, district attorney, and 8. J3. McIntyre, for . the defendant.
   'Mullot, P. J.

The relator was arrested and brought before the police justice of the village of Palmyra, charged with selling and giving to one George O. Rannie, an intoxicated person, strong and spirituous liquors, in violation of § 18 of chapter 628 of the Laws of 1857.

He pleaded guilty to the charge, and the justice, sitting as a court of Special Sessions, sentenced, the said Hislop to pay a fine of $25, and to stand committed to the jail of said county of Wayne until said fine was paid, and to be imprisoned in said jail for the term of twenty days.

A writ of habeas carpus was issued by the county judge of the county of Wayne, on the application of said Hislop for a writ of habeas corpus, on the ground that his imprisonment was illegal because the offence charged, and to which he pleaded guilty, was not a criminal offence for which he could be imprisoned, and because the police justice of Palmyra had not legal authority to cause him to be arrested or to try and convict him, and the prisoner was brought before, the county judge in obedience to it, and after hearing the counsel for the petitioner and the district attorney of said county, the prisoner was remanded to the county jail for the residue of the term of imprisonment to which he was sentenced.

The petitioner then applied for a certiorari to review the proceedings before the county judge, on the wilt of habeas corpus, and to the writ the comity judge has made a return setting forth the proceedings had before him on the habeas corpus.

Having arrived at the conclusion that the prisoner was not guilty of a criminal offence, for which he could lawfully be imprisoned, I have not examined the question as to the jurisdiction of the police justice of Palmyra.

Until the passage of the act of 1857, above referred to, it was not' unlawful to sell or give to an intoxicated person strong or spirituous liquors.

The following propositions aro well settled, and have never, as I can discover, been questioned, viz. :

First. When a statute creates a new offence by making that unlawful which was lawful before, and prescribes a particular penalty and mode of proceeding, that penalty alone can be enforced. The offence in such case is not indictable. (People v. Stevens, 13 Wend., 341; People v. Brown, 16 id., 561; Behan v. People, 17 N. Y., 517; Foote v. People, 56 id., 331.)

Second. When an act is prohibited, which has never been prohibited before at common law or by statute, and a penalty is affixed for its violation, and the manner of collecting it is pointed out, no other or different penalty exists, and no indictment will lie. (Rex v. Wright, 1 Burrows, 543; Rex v. Robinson, 2 id., 803.)

We have then, first, a prisoner charged and convicted for an offence unknown until the passage of the act of 1857; second, a penalty imposed by the statute creating the offence, viz.: a fine of not less than ten dollars nor more than twenty-five dollars; and, third, the persons designated by whom the penalty shall be enforced, and the disposition to be made of it when collected.

The act of 1857 does not make the offence of which Hislop was convicted a misdemeanor; nor is there any provision in that act authorizing the arrest or imprisonment of the accused unless it follows from provisions of some other act as a means of enforcing the penalty. It is suggested by the district attorney that violations of the excise law have uniformly been held to be misdemeanors, and indictable and punishable as such, although the statute creating offences may not have declared the offence to be a misdemeanor. It may be as claimed by the counsel, but I am unable to find a case in which that proposition has been decided, where the offence was a new one, and the statute merely imposed a penalty and provided a remedy for its collection.

Under section 29 of the act of 1857, which requires the courts to instruct grand jurys to inquire into all offences against the provisions of said act, it might have been held that violations of section 18 of the act were misdemeanors and indictable as such, and it may have been that the Legislature intended so to provide. But the Court of Appeals, in the case of the People v. Foote (supra), hold that the clause of the section cited applies only to adulterating, imported or other intoxicating liquors, selling the same, and knowingly importing or selling adulterated, intoxicating liquors or wines.

The imprisonment of Hislop was illegal; and he was entitled to be discharged therefrom.

. The proceedings before the comity judge are, therefore, reversed, and the prisoner discharged.

Present — MulliN, P. J., Talcott and Smith, JJ.

Proceedings on habeas corpus reversed, and the prisoner discharged.


author: Talcott, P. J.

text:
    ROBERT ELLIOTT, Respondent, v. BENJAMIN G. LEWIS, Appellant.

      Consent to refer — when general —party objecting to a reference must appeal from, the order directing it — he eannot claim that the referee has no jurisdiction;

    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee in an action of ejectment.
    The action was brought to recover a strip of land, about twenty-six feet in width and one chain in length, situate in the village of Central Square, in the town of Hastings, Oswego county. The case has been at the Geuei’al Term once before, on an appeal from a judgment, rendered in favor of the defendant, which was reversed by this court, and is reported in 10 Hun, at page 486.
    The General Term, after holding that there was no reason to vary or depart from its former decision, said: “It seems that when the judgment was reversed, before a new trial was ordered before another referee, it probably did not occur to the court, if such was in truth the fact, that the consent to the original reference was not generally that the cause might be referred to a referee, but that the consent was only that the cause might be referred to the particular referee named in the first order of reference. It appears, however, that under the order of the General Term, made on the reversal of the first judgment, a motion was made at a Special Term by the jalaintiff to substitute a new referee to hear the said cause, which motion was opposed by the said defendant; but, nevertheless, was granted, and the action was referred to the second referee to hear, try and determine. When the trial came on the defendant’s counsel objected to proceeding, on the ground that the court had no right to refer the case, and that the defendant was entitled to a trial by a jury-The objection was overruled and the trial proceeded, the defendant appearing and introducing witnesses, etc. ; but the defendant now takes the objection on this appeal that the referee had no jurisdiction to proceed to the trial of the cause.
    It does not appear that the original consent to a reference was confined to the particular referee named, nor but that it was a general consent that the action might be referred. But, however, that may be, we do not think the defendant could object on the trial on this ground. The order of reference to the second referee was made on due notice, and so far as appears was never appealed from, and we think that so long as that order was not appealed from the defendant was bound by it. Under certain circumstances the court had authority to make such an order, and when so made, on notice, the reference was to be deemed prtiper and regular until the order making it should be reversed. The cases cited by the defendant on this subject are where the appeal was taken from the order of reference, as in Preston v. Morrow et at (66 N. Y,, 452). In this case the appeal is from the judgment only. (See Code of Civil Procedure, § 1301-1316.)

      B. G. Lewis, appellant in person. Randall & Randall, for the respondent.
   Opinion by

Talcott, P. J.

• Smith, J., concurred.

HakdiN, J., not sitting.

Judgment affirmed.


author: Hardest, J.;

text:
    MONROE BRIGGS, Appellant, v. DEMPSTER WHEELER, Respondent.

      Declarations made by a witness out of court, inconsistent with his evidence in court — when evidence thereof is admissible to contradict the witness.

    The action was brought in a justice’s court where the plaintiff recovered $1.50 and costs. The County Court of Jefferson county reversed the justice’s judgment, and the plaintiff appealed to this court. The plaintiff bought some grass seed of defendant, having the negotiations with one Edwin Wheeler, who was the agent of the defendant, as to the seed. One Crosby was called and testified that he remembered some money changing hands between plaintiff and Edwin Wheeler about some grass seed ; “I was present; it was at Mr. Wheeler’s house in Henderson; * * * I
    saw the transaction about the seed; Mr. Briggs, the plaintiff, came along, his boy was with him; the first thing I remember was, Mr. Briggs asked him about the grass seed, how much it was; defendant told him the amount; * * * plaintiff asked him if he could change a bill, and Wheeler said he could, and Briggs handed him a ten dollar note and Wheeler handed him back some money; they then continued to talk of other matters and I went away; * * * I saw him take the bill and give Briggs the change.”
    The defendant offered to prove by Martha Hayes that, in the presence of Martha Hayes, witness Crosby admitted that •'he saw no money paid over by Briggs to Wheeler. • This was objected to by the plaintiff “ as illegal and incompetent, unless the party was present;” and “ also as not allowed by any legal method of contradicting a witness.” The justice sustained the objections and excluded the evidence.
    The court at General Term said: “ Neither ground of objection was tenable. As we have before seen, it is not necessary that either of the parties should be present to render competent declarations, made by a witness out of court, inconsistent with his testimony in court. The other (Ejection was general and indefinite. The most that could be implied from it was that the objector insisted that such a contradiction as was proposed was not competent or allowable. The ruling was placed upon these grounds, and the objector cannot now assume and argue other grounds. He must stand or fall by the grounds taken when the ruling was made. (Tooley v. Bacon, 70 N. Y., 34.)
    There was no objection that the proper foundation had not been laid, and there was no objection that the witness Crosby had not been asked specifically, naming time and place. If such an objection had been taken and sustained, the defendant would have had an opportunity to obviate it. {Gill v. McNamee, 42 N. Y., 44; Sparroiohawlc v. Span'owhatole, 6 "Weekly Digest, 281.) The learned counsel for plaintiff has cited us to the opinion of Wells, J., in Sprague v. Cfadwell (12 Barb., 518), to justify the ruling made below by the justice. In that case the specific objection was taken, “that while Sprague w*as being cross-examined his attention was not called to the conversation, nor to the time or place where, nor the person with whom, the conversation was held,” The case there differs from this one before us, and is consistent with and in accord with the observations already made as to the point involved here. (Budlong v. Nostrand, 24 Barb., 25.) In that case the specific objection was taken and properly sustained.

      E. B. Hawes <& Son, for the appellant. Wilbur A. Porter, for the respondent.
   Opinion by

Hardest, J.;

Taloott, P. J., and Smith, J., con.curred.

Judgment affirmed.


author: Talcott, J.;

text:
    HENRY MONELL, Respondent, v. NORTHERN CENTRAL RAILWAY COMPANY, Appellant.

      Receipt given for goods by consignee — when not binding in an action brought to recover became of the damaged, condition of the goods at the time of their delivei-y by the common-earner.

    Appeal from a judgment in favor of the plaintiff, entered on a verdict at the Genesee circuit, and from an order made at the Special Term denying a new trial.
    The action was brought to recover damages against the defendant for negligence in delaying the transportation of certain carloads of potatoes from Batavia, in this State, to the city of Philadelphia, in the autumn of 1875. The concessions of the defendant’s answer show that the defendant was a common-carrier of goods for hire between Batavia and Philadelphia, and that it agreed to transport the property mentioned between those points, and deliver it to the plaintiff’s consignees at Philadelphia.
    The defendant claimed that a receipt given by plaintiff’s agent estopped plaintiff from maintaining the action; with reference to this, the court at General Term, said: “ It appears that the consignees of the plaintiff at Philadelphia, and to whom the potatoes were consigned as commission merchants, to be sold for the account of the plaintiff, in order to obtain the possession of the potatoes from the railroad terminating at Philadelphia, receipted the bills of lading to the effect that the property was received in good ’ order, as he says, however, under protest and because it was necessary in order to obtain the possession of the property. This receipt, the defendant’s counsel insists, operates as an estop: pel upon the plaintiff, and prevents him from claiming that the property was damaged when received, and that there was no necessity of giving such a receipt or even receiving the property at all in its damaged condition, but that the consignee might have refused to receive the property and have held the carrier for the damage which it had suffered. It may be granted that the consignee might, under the circumstances, have rejected the property altogether on account of its damaged .condition; yet he was not bound to do this. He had an election to reject the property altogether and hold the carrier liable for the damages, or he might recover the property and dispose of it to the best advantage, and hold the carrier liable only for the' difference between the sum which was realized from the sale of the property and what it would have been worth had it been delivered in good order. As to the estoppel, the Pennsylvania road was the agent of the defendant in completing the contract of carriage. The evidence of the plaintiff tended to show that it was duly notified that the consignee claimed that the property was damaged at the time the receipt for it was signed. Its acts were in law the acts of the defendant, and its knowledge and information concerning the transaction were imputable to the defendant.
    “Asa statement of facts in a receipt, it might be contradicted, and the property, as against the defendant, be shown to have been delivered in bad order, notwithstanding the statement to the contrary in the receipt; certainly, unless the defendant has been in some way misled by the receipt, and induced to act in a manner in which it would not have acted but for the receipt; and of this there is no evidence in the case.”

      John Ilubbell, for the appellant. George Bowen, for the respondent.
   Opinion by

Talcott, J.;

MulliN, P. J., and Smith, J., concurred.

Order denying new trial and judgment affirmed.


author: Smith, J.

text:
    TIMOTHY E. ROLLINS, Appellant, v. ALLEN WOOD, Respondent.

      Code of Civil Procedure, § 1351— notice of appeal — what not a sufficient copy of the judgment.

    MotioN to dismiss an appeal from a judgment, for irregularity,, on the ground that the appeal was not brought in time.
    The judgment appealed from ivas entered on the report of a referee in favor of the defendant for a sum of money, and costs. It was perfected and docketed on 17th August, 1878. On twenty-second August defendant’s attorney served upon the plaintiif’s attorneys a written notice thereof, which was in the following-words: “ Take notice that the judgment roll was filed, judgment perfected and docketed in the office of the clerk of the county of Steuben in favor of the defendant, against the plaintiif, on the 17th day of August, 1878, for damages - - $195 91
    “Costs,.- - 130 85
    “Judgment.$326 76.”
    No copy of the judgment, beyond what is contained in the notice, was served. The notice of appeal was served 27th December, 1878.
    The court at General Term, held, “ that the notice of judgment was not a copy of the judgment, within the meaning of section 1351 of the Code of Civil Procedure, and that as no copy of the judgment was served, as required by that section, the service of notice of entry of judgment did not set the time within which to appeal running, and the appeal, was taken in due season.”
   Opinion by

Smith, J.

Present — Talcott, P. J., Smith and IIakdin, JJ.

Motion to dismiss appeal denied, with ten dollars costs of opposing.


author: Smith, J.;

text:
    ALLEN H. GILLETT and WARREN TRUESDELL, Respondents, v. OREN G. STAPLES, COPLEY A. NOTT, CHARLES F. STAPLES and The THOUSAND ISLAND HOTEL COMPANY, Appellants.

      Creditor’s bill — judgment on — When, the existence of a remedy by sale under execution does not prevent the filing of a creditor’s bill.

    Appeal from a judgment in favor of the plaintiffs, entered on the report of a referee.
    The action was in the nature of a creditor’s bill, brought by the • plaintiffs as judgment-creditors of the defendants, Nott and Oren G. Staples, against said Nott & Staples, The Thousand Island Hotel Company and Charles F. Staples, after the return of an execution unsatisfied, to reach certain real and personal property, most of which was held in the name of Charles F. Staples, and was claimed by him. A few articles of the personal property were in the possession of Oren G. Staples, and were claimed by him to belong to his wife. The appellant objected that the decision of the referee did not specify the items of property which the debtors were directed to assign to the receiver.
    The court at General Term said: “ It is not needed that it should. If any adjudication on that subject shall be necessary, in order to carry out the judgment, it can be provided for by a reference for that purpose. The court has inherent power to provide for such a contingency (Dickerson v. Van Tine, 1 Sandf. K.., 724), and ample authority is given by statute (Code of Civil Procedure, § 1015); upon the reference all questions as to what particular articles belong to the judgment-debtor or were paid for out of the proceeds of the hotel business can be investigated and decided. * * * “As to some'of the property, the referee found, at the request of the defendants, that the plaintiff had a remedy by sale on execution, and it is argued by the defendants' counsel that as to such property a creditor’s bill cannot be maintained ; but the defendant claimed before suit that all the property in which he was found to have an interest belonged to others than himself, and most of it was actually claimed by Charles F. Staples. That being the case, the creditor's were not obliged to resort to their remedy by a sale on execution, but were entitled to ;a creditor’s bill. (2 R. S., 174, ,§ 39; Ghaulauqua Gountj Bank v. White, 2 Seld., 236, 252; Toddy. Grooke, 4 Sandf., 694.)”

      O'Brien & Emerson, for the appellants.

      McGartin& Williams, for the respondents.
   Opinion'by

Smith, J.;

Talcott, P. J., and IIÁediN, J., concurred.

Appeal of defendants Nott, Charles F. Staples and The Hotel Company dismissed and the judgment affirmed, with costs.


text:
    SAMUEL BUCKER, Plaintiff, v. ALBERT FERO, Defendant.

      Map of tract and field notes — what a sufficient authentication of them to render them admissible on the question as to the boundary line between lots.

    Motion by plaintiff for a new trial on exceptions taken at the Steuben circuit, and ordered to be heard at General Term in the first instance.
    The action was trespass for catting timber. It was brought originally in a justice’s court, and being there discontinued by the interposition of a plea of title, it was brought in this court, where the defendant recovered a verdict. The plaintiff and defendant own and occupy adjoining pieces, of land in a tract known as Watkin & Flint’s purchase, in the county of Chemung, the former having a part of lot twenty-four and the latter a part of the next westerly lot, number twenty-five. The question of title depends on the location of the boundary line between the two lots, which is in dispute, the plaintiff claiming that the line at its north end is about six rods west of the point at which the defendant claims it to be. The tract was formerly owned by Stephen B. Munn. The plaintiff’s title was derived from Munn.
    The court at General Term said : 11 An exception was taken to the reception of a map and field-notes which were put in evidence by the defendant. The map purported to be a map of the township, which included lots twenty-four and twenty-five above mentioned, and appended to it was a statement purporting to be signed by Joshua Ferris and James Pompelly, that the township was surveyed by them in 1808 for Col. Henry Rutgar and Alexander Robinson, of the city of New York. The field-notes (which appear to have been on the same piece of paper with the map)' gave the courses and lengths of the boundary lines of lots twenty-four and twenty-five. The objection taken to the map and field-notes was that they were not authenticated. The evidence of authentication, upon which the defendant relies, was as follows : It was proved by an agent of Munn’s heirs, whose father had been the agent of Munn in his life-time, that the lands of the Munn tract had been contracted and conveyed as parts of lots and sections, as shown on the map ; that the map and field-notes were produced from the papers in the agent’s possession, which he received from his father, who died in 1855,' and who had them in his hands a good many years before that time ; that the witness knew of no other map designating lots on the tract; that the signature of Ferris was genuine; that Ferris died nearly twenty years before the trial, and that Pumpelly also was dead: As the plaintiff derived title from Munn, and his deed described his land by the number of the lot, we think the circumstances proved were sufficient to authorize the inference that the map and field-notes were genuine, and that the land of plaintiff was conveyed in reference to them. The argument of the defendant’s counsel is that the deed to the plaintiff assumes the division of a tract into lots, and it must be presumed that both grantor and grantee knew what the division was, and that the conveyance was made with reference to it; that although the map does not purport to have been made for Munn, yet being found in the custody of his agent and of the agent of his heirs for many years, and being the only one known relating to that estate, it is reasonable to presume that he derived his title from the parties for whom the map was made, or that he adopted it as his own, and the presumption is that he conveyed with reference to it. We are prepared to assent to this view of the matter and to hold that the testimony was admissible. (See 1 Wharton’s Ev., §§ 668, 670, 194; Kingsland v. Ghittenden, 6 Lans., 15; Ciarle v. JY. Y. Life Ins. and Trust Go., 64 N. Y., 33, 38-39; Orawford v. Loper, 25 Barb., 449.)”

      Geo. B. Bradley, for the plaintiff.

      J¶. 0. Mills and Geo. T. Spencer, for the defendant.
   Opinion by

Smith, J.;

MulliN, P. J., and Talcott, J., concurred.

New trial denied and judgment ordered for defendant on the verdict.


text:
    THE HOWE MACHINE COMPANY, Respondent, v. EZRA FARRINGTON, Appellant.

      Bond to secure debts to become due from an agent — surety not discharged by the failure of the principal to disclose previous failures of the agent to account — what declarations admissible as part of the res gestee.

    Appeal from a judgment in favor of tbe plaintiff, entered on tbe report of a referee.
    Tbe action was upon a bond executed by one Davis and tbe defendant, as bis surety, conditioned for tbe payment of tbe indebtedness of Davis to tbe plaintiff, tben or thereafter existing. Davis was tbe agent of tbe obligee for tbe sale of machines. The plaintiff was to deliver to him machines for sale, and he was to make reports of sales and to remit proceeds weekly and to return to tbe company, on demand, all machines not sold. At tbe time of tbe execution of tbe bond Davis was indebted to tbe plaintiff for machines previously delivered to him, and be became further indebted for machines delivered from time to time after tbe execution of tbe bond.
    The court at General Term after considering certain objections raised by tbe appellant, and overruling them said: “ Another position taken by the- appellant’s counsel is that at tbe time when tbe bond in suit was given, Davis was repeatedly and largely in default in respect to machines furnished to him by tbe plaintiff, which fact tbe plaintiff well knew but did- not disclose to tbe defendant. As we understand tbe rulings of tbe court of last resort in this State, those circumstances constitute no defense to an action against a surety for a debt or the like, in tbe absence of connivance or gross negligence. (McJTechnie v. Ward, 58 N. Y., 541; Atlantic and Pacific Telegraph Oo. v. Barnes, 64 id., 385.) However, it may be as to one who becomes surety for tbe honesty of another. (Id.)
    “ It is contended that the declarations of Davis were not evidence that be received tbe machines, as against the defendant. Tbe proof was expressly limited to declarations made by him during tbe period of tbe consignments and after tbe execution of the bond in suit, and consisted of admissions made by him of the correctness of plaintiff’s books on their being exhibited to him. The declarations were, therefore, a part of the res gestae and were admissible. It would have been otherwise if they had been made after the transactions were closed, for which the surety was bound. (1 Gr. Ev., § 187; Hatch v. Elkins, 65 N. Y., 489; Tenth National Bank v. Harragh, 1 Iiun, 111; Horn v. Pen*?/, 14 id., 409.”)

      Thomas Gorlett, for the appellant. M. A. Whitney, for the respondent.
   Opinion by

Smith, J.;

MulliN, P. J., and Talcott, J., concurred.

Judgment affirmed.


text:
    CHARLES C. LOCKWOOD, Respondent, v. ELIZABETH S. UNDERWOOD, Appellant.

      Aetion on note — what question admissible, to show that the plaintiff is not the owner.

    Appeal from a judgment in .favor of the plaintiff, entered upon the report of a referee. The action was upon several promissory notes made by defendant, and delivered to Stephen N. Lockwood, and by him, July 2, 1875, transferred to William C. Lockwood, and by him, October 24, 1876, transferred to the plaintiff. The answer denied the ownership by plaintiff, and alleged that the notes were owned by S. N. Lockwood, and set up, also, off-sets to the notes and counter-claims against Stephen N. Lockwood.
    Upon the trial Stephen N. was called by the plaintiff, and gave evidence as to his indorsement of his name upon the $500 note, and that he was the payee named in the note. The plaintiff then read the note in evidence, and the defendant, in the course of the cross-examination of Stephen' N., asked the witness if he had received anything, or consideration from any person, for the note. That question was objected to, and an answer to it excluded, and the defendant excepted. The defendant then offered to show by the witness “ that he had not received, up to the time the note was handed over ‘ to the plaintiff by William, any consideration therefor, and that the witness was at that time the lawful owner of the note.’ ” This was objected to by the plaintiff.
    The court at General Term said : “ The referee rules out the question as to whether witness received any consideration for this note, on the ground that it is not a proper cross-examination ; and also that if the answer were in the affirmative it would be immaterial. There was an exception to this ruling by the defendant. Doubtless the offer to show an absence of any consideration for the transfer was for the purpose of sustaining the averment that the plaintiff was not the owner of the note, and that the witness was the owner. For such purpose we think the evidence was admissible. In IIays v. Southc/ate (18 Alb. Law Jour. [No. 16], 318), the Court of Appeals held that the defendant was entitled to prove a want of title on the part of the plaintiff to the note. (N. O., 10 Hun, 511, reversed.) The evidence in this case might have affected the status of the witness, and we think the offer was improperly excluded.”

      Farnell & Burrell, for the appellant. David Millar, for the respondent.
   Opinion by

Hardest, J.;

Talcott, P. J., and Smith, J., concurred.

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


text:
    THE REMINGTON PAPER COMPANY, Respondent, v. ANNA M. O’DOUGHERTY and PATRICK O’DOUGHERTY, Impleaded, etc., Appellants.

      Action to cancel a forged deed as a cloud upon title — maintainable when the deed contains a proper certificate as to its having been acknowledged, and has been recorded.

    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The plaintiff recovered a judgment in the Supreme Court against the defendant, Patrick O’Dougherty, on the 24th of April, 1873, for $2,822.40, upon which an execution was issued and various parcels of real estate sold by the sheriff of Jefferson county on the 12th day of December, 1874, and bid off by the plaintiff at various prices, set forth in the schedules annexed to the complaint, and the said execution was* thereupon returned satisfied and a certificate of sale- issued to the plaintiff on the 22d of December, 1874. The judgment was recovered in an action for the breach of a contract, bearing date on the 28th day of April, 1866, whereby the said Patrick O’Dougherty agreed to sell to the plaintiff certain lots of land and water power and privileges, situate in what was called Jahelville, now a part of Watertown, in the county of Jefferson.
    The complaint in this action, after setting forth the foregoing facts, also alleges that the plaintiff is the owner, by assignment, of three several judgments recovered in justices' courts against said Patrick in 1872 and 1873, and docketed in the office of the clerk of Jefferson county, on winch three judgments executions have been issued to the sheriff of Jefferson county and returned unsatisfied. The complaint, in substance, charges a conspiracy by and between said Patrick O’Dougherty and Anna his wife to hinder, delay and defraud the creditors of the said Patrick in various modes and by various contrivances, by which-the said Patrick and Anna M., acting in concert, have endeavored to cause the titles to various parcels of real estate to be vested in the said Anna M. in order to defraud the creditors of the said Patrick, who is alleged to be insolvent.

      The complaint appears to have been intended as a complaint with a double aspect; first, to remove certain alleged clouds, which it is alleged that the defendants Patrick and Anna M. have fraudulently created upon the title to various parcels of property purchased by the plaintiff upon its said execution, and which clouds have been created by the fraudulent conduct in the premises of the said Patrick and Anna M., acting in concert; and, also, as to the three justices’ judgments, as an action in the nature of a creditor’s bill, to reach the real interest of the said Patrick in the various parcels of real estate upon which the said alleged clouds have been so created.
    John O’Dougherty, the father of the said Patrick, and of whom the said Patrick was the only child and sole heir-at-law, resided until his death with the said Patrick, at Watertown, and died intestate in April, 1872, and the said Patrick was duly appointed the administrator of the estate.
    The complaint states that certain parcels of land, water-rights etc., described in numbers eleven and twelve, in exhibit A, annexed to the complaint, were in the possession of and belonged to John O’Dougherty at the time of his death; but that at some time the said Patrick made, or caused to be made, a writing, which purports to be a conveyance of said parcels numbers eleven and twelve from the said John O’Dougherty to the defendant Anna M., bearing date on the 25th day of December, 1861, and which purports to have been then acknowledged by the said John, before the said Patrick as a justice of the peace, and which was recorded in the office of the clerk of Jefferson county as a cle.ed, on the 22d day of December, 1868, which pretended deed the complaint alleges to be a forgery, and the certificate of acknowledgment false, and which is charged to be a cloud upon the right and title of the plaintiffs to the said parcels eleven and twelve, part of the premises purchased by the said plaintiff* on its execution ; and the complaint further avers that the pretended conveyance and the false certificate of acknowledgment and the recording thereof were made, or caused to . be made, by said Patrick and Anna, with a view to hinder, etc., the creditors of said Patrick. The answer of the defendants Patrick and Anna, after denying the facts alleged, insists in regard to the said conveyance from John O’Dougherty to Anna M. O’Dougherty, that the plaintiff has an adequate and full remedy at law, and that a court of equity has no jurisdiction, and the same ground was taken before the referee, who was in substance requested to dismiss the complaint, as to the said alleged forged deed upon that ground.
    The court at General Term said: “The only relief asked by the said plaintiff, as to the said parcels eleven and twelve, is upon the ground that the said deed is a forgery and the certificate of acknowledgment false; that the real estate therein described, in fact, descended to Patrick O’Dougherty as the heir of John, and that the said alleged deed is a cloud upon the title of the said plaintiff acquired by its purchase at the said execution sale.
    Forgery has been held to be a ground for relief in equity (Spence on Equitable Jurisdiction, 626; PeaJce v. Highfield, 1 Russ., 559.) But it may be doubted, under the modern decisions, whether an action will lie to set aside a conveyance as a cloud upon title, upon the ground that the conveyance is a forgery, because as to such defense there is a perfect remedy at law in an action of ejectment, or by proceedings in the nature of an’action of ejectment, to compel the determination of claims to real property. 11A court of equity will not decree the cancellation of a written instrument unless some special circumstances exist, establishing the necessity of a resort to equity to prevent an injury which might be irreparable, and which equity alone is competent to avert. The mere fact that a defense exists to the instrument is insufficient, nor is it sufficient that evidence to establish the defense may be lost by delay, as a summary mode is provided by statute for perpetuating evidence, and an action is not necessary for that purpose.” (Town of Venice v. Woodruff, 62 N. Y., 462.) So in Washburn v. Burnham (63 N. Y., 132) it was held that an action cannot be maintained to cancel as a cloud upon title an executory contract for the sale of land, made by one claiming to act as agent for the owner, but having in truth no such authority, because the defect would necessarily appear in any proceeding, by one claiming under the contract to enforce it, as he would be required to prove the authority of the agent.
    If the complaint, so far as the deed from John O’Dougherty is concerned, .was founded solely on the alleged forgery of the deed, it may be doubted whether au action could be maintained in equity to set it aside as a cloud upon title ; but the propriety o'f the exercise of such jurisdiction in this case grows out of the effect of the recording act together with the certificate of acknowledgment alleged to be false. Patrick O’Dougherty was a justice of the peace, and as such, a proper officer to take and certify to the acknowledgment in this instance, notwithstanding his relationship to the grantor and grantee. (Lynch v. Livingston, 6 N. Y., 422.) The recording act provides that a deed so acknowledged may be recorded and such record, or a certified copy thereof, may be read in evidence. There is no doubt but that the certificate of acknowledgment is genuine in the sense that it was, at some time, written and signed by Patrick O’Dougherty, who was, at the time it bears date, a justice of the peace, and by virtue of that certificate the deed has been recorded.
    True, the recording act provides (1 R. S. [2d ed.], 749, § 17) that the certificate of acknowledgment shall not be conclusive, but may be rebutted, and the force and effect thereof contested by any party affected thereby. Nevertheless, the genuine certificate of acknowledgment would prima facie prove the execution of the deed by the grantor, and the record of the deed would be sufficient proof of its due execution, rendering a resort to evidence aliunde necessary in any attempted impeachment of the title purporting to have been conveyed by the forged deed. We think, therefore, that in such a case, equity has jurisdiction to try and determine the question, and to remove or cancel the record of the conveyance as a cloud upon title.
    True, the referee does not find in terms that Patrick’s certificate of acknowledgment was false, but he does so in effect by the finding that John O’Dougherty died seized of the property described in the conveyance, and that it descended to Patrick who was the owner at the time when the plaintiff recovered its judgment.”

      D. O'Brien, for the appellants. L. J. Borwin, for the respondent.
   Opinion by

Talcott, J.;

MxjlliN, P. J., concurred; Smith. J. not sitting.

Judgment modified so far as it sets aside, as void, the deed from the sheriff of Jefferson county to Anna M. O’Dougherty of the parcels of land, described as parcels number eleven and twelve, as stated in the opinion, and as to the residue, affirmed with costs of ^appeal to the respondent.


author: Davis, P. J. :

text:
    ALLAN McLANE HAMILTON, Respondent, v. AMOS F. ENO, Appellant.

      Action for libel — when damages for wounded feelings allowable.

    "Where, in an action for libel, injury to character has been proved, the suffering of the plaintiff by reason of his wounded feelings, and any injury to his character and standing either in his professional, public or private station, may be considered by the jury in awarding damages.

      Samuels v. Evening Mail Association (6 Hun, S-ll), distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was for a libel. The plaintiff, an assistant inspector of the board of health, on or about October 19, 1874, made an official report to Dr. W. D. F. Day, sanitary superintendent, on the subject of street pavements, in which he “ highly commended the pavement made and furnished by the Grahamite Pavement Company as a pavement of great excellency.”
    This report was published in the City Record on October 24, 1874. On February 11, 1875, the defendant wrote an article in tbe form of a letter to the Tribune, in which he referred to, and commented upon, this report, and this article forms the occasion of this controversy. The article alleged that ho had “ thought it worth while to look outside of the district assigned him, and to write to his superior officer in the health board, a letter recom?mending the Grahamite pavement. This letter, it would appear, was written under the dictation of the Grahamite Pavement Company, or without a full inquiry into the merits of the subject. What object there was in the production of this letter it might be difficult to learn. It is understood that the stock of the Grahamite Company has been placed 1 where it will do the most good,’ and the name of at least one officer of the city government can be given, who, on taking official position, where it was supposed he might have to advocate or oppose this pavement, returned to the company stock which had been presented -to him. When such an example is known, those who step aside from the strict line of duty, to advocate something outside of their proper official sphere, cannot feel aggrieved if their action is looked upon with suspicion.”
    The jury rendered a verdict for $3,000.

      G. De Forest Lord, for the appellant.

      F. G. Barlow, for the respondent.
   Davis, P. J. :

We have examined this case and the numerous questions raised by the appellant’s counsel in the course of its trial, with care, and have reached the conclusion that there are no grounds calling for our interference with the verdict or judgment.

The motion for a new trial, on the ground that the damages were excessive, was properly denied. The jury were justified, upon all the facts and circumstances of the case, in finding express malice, and were quite at liberty to award damages to the extent to which they were given.

In respect to the various requests -to charge, it is not necessary to notice them in detail. Of course, the jury were at liberty to take into consideration all the facts and circumstances of the case in considering the question of damages, and a request to charge that they were at liberty to clo so would have been improperly refused. The request to charge, upon that subject, undertook to enumerate various facts and circumstances, but stopped far short of including the whole, and for that reason the court was not bound to adopt or charge it as requested. There is no conflict between this view and those expressed by the Court of Appeals in Spooner v. Keeler (51 N. Y., 527).

It was not held by this court in Samuels v. Evening Mail Association (6 Hun, 5-11), that a jury could not take into consideration, where á libel had been proved and injury to character shown, the sufferings of the plaintiff by reason of wounded feelings. The intimation of the opinion was intended simply to be that, in a case where no damage to character was proved, the mere fact that the plaintiff’s feelings were wounded by an alleged libel was not alone sufficient to maintain the action ; and that is in accordance with the established rule that a libel addressed and delivered only to the plaintiff cannot be the basis of an action. In several cases where damages have been shown, the court have treated injury to feelings as a proper subject of consideration. (Littlejohn v. Greeley, 13 Abb., 59; King v. Root, 4 Wend., 139; Fry v. Bennett, 4 Duer, 257; Swift v. Dickerman, 31 Conn., 291, et seq.) Nor were the damages limited to injury to.plaintiff in his professional capacity. He was entitled to recover for any injury to his character and standing which the jury believed him to have suffered either in his professional, public or private station.

We are of opinion that there is no just ground for interfering with the verdict or judgment, by reason of any of the exceptions taken in the case.

Ingalls, J., concurred.

' Present — Davis, P. J. and Ingalls, J. ; Beady. J. taking no part.

Judgment affirmed.