author: E. DarwiN Smith, J.:

text:
    DELLA L. FRANKLIN, Respondent, v. BENJAMIN C. SCHERMERHORN and SARAH A. SCHERMERHORN, Appellants.

      Civil damage act — Chapter 646, Dows of 1873, constitutional — Vague and inex-plicit— what recoverable undo)' — Exempla/ry damages.

    Chapter 646, of the Laws of 1873, known as the civil damage act, was within the clear discretion of the legislature as part of its police and sovereign power, and is not within any of the prohibitory clauses of the Constitution.
    The act is so vague that while the legislature doubtless intended, to give a single right of action and single damages to one person, a right of action is given, or may arise, to a husband or wife and each of their children, be they ever so many.
    Where the husband of the plaintiff was a cripple and could earn but little for the support of his family, consisting of the plaintiff and four children, and he received a quarterly pension of fifty-four dollars, and on the day he received it got intoxicated, in part at the defendants’ house, and thereby lost or had stolen fifty dollars, held, that under the statute, the plaintiff, as wife, was only entitled to recover her proportionate share, or one-fifth thereof, and that it was error on the part of the Circuit judge to refuse so to charge.
    The verdict of the jury was for $175. Held, that it was not a case for exemplary damages; that although the jury, in this class of cases, have the right to give exemplary damages, yet they should only be given where there are circumstances of abuse or aggravation proved on the part of the vendor of the liquor, which were wanting in tills case.

      Appeal from a judgment entered on the verdict of a jury, in favor of the plaintiff and against the defendants, and from an order denying a motion made at Speeial Term for a new trial founded on a bill of exceptions.
    The defendants were husband and wife, and the wife was the owner of the premises upon which the husband had kept a hotel for two years and over, prior to the 21st of September, 1874. Plaintiff’s husband was a cripple, and on or about the 20th of September, 1874, went to Belmont, drew his pension money, fifty-four dollars, and afterwards went to defendants’ hotel and drank intoxicating liquor, and from what he drank then and what he had drank before, became intoxicated, and through some means got hurt and lost fifty dollars in money. Plaintiff and her husband had four children under eight years of age who were supported by the husband from his labor and from his pension money. This action was brought under chapter 646, Laws of 1873. On the trial the jury gave a verdict for plaintiff, for $175.

      Angel c& Jones, for the appellants.

      V. A. Willard, for the respondent.

       See post, pp. 138,148,

   E. DarwiN Smith, J.:

The question raised at the Circuit and discussed at Special Term in respect to the constitutionality of the civil damage act (chap. 646 of the Laws of 1873, p. 1016), was correctly disposed of at the Circuit and at Special Term, and the exceptions to the decision of the Circuit judge not well taken. To enact such a statute was within the clear discretion of the legislature, as part of its police and sovereign power, and is not in conflict with any of the prohibitory clauses of the Constitution of the United states or of the State Constitution. The act must be deemed part of the excise law of the State, which has been repeatedly held constitutional. (Metropolitan Board of Excise v. Barrie, 34 N. Y., 657 ; Baker v. Pope, 5 N. Y. Sup. Ct. [T. & C.], 102.)

The act is too vague and inexplicit, and presents much difficulty in its practical operation' for the construction of the courts, and it certainly requires, if it is to remain upon the statute book, considerable amendment and modification. While the legislature has provided in the general excise law for granting license for the 'sale of intoxicating drinks, it has superadded in legal effect in this statute, that such license shall be given, taken and received subject to the qualifications contained in this act; and that every person taking such license shall be personally responsible for the consequences involved in the sale of such liquors.

The act admits, if it does not require, a construction far more sweeping, I think, than could have been intended by the legislature. This case presents an instance of the intrinsic injustice involved in its practical working.

The first section of the act declares that “ every husband, wife, child, parent, guardian, employe or other person, who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have aright of action in his or her name, against any person who shall, by selling or giving away intoxicating liquors, cause the intoxication, in whole or in part, of such person or persons.” The legislature, I think, intended to give a single right of action, and single damages to one person; but a right of action is given, or may arise to a husband or wife, and each of their children, be they ever so many, as well as to the other persons named in said section.

In this ease the action is brought by a wife, and the proofs show that she had four children under the age of eight years. That her husband was a cripple and could earn but little for the support of his family, and that he received, quarterly, a pension of fifty-four dollars ; that on the 20th of September, 1814, he received such pension and got intoxicated, in part, at the defendant’s house, and lost his money, and received some injury while so intoxicated, which interfered, to some extent, with his capacity for work, but what the injury was, and how it affected him, and how long he was so affected, does not appear.

It is appar-ent from the evidence that the jury might properly find that the fifty dollars, the amount remaining unspent by him, was lost (though probably stolen), in consequence of his intoxication. In this view they were entitled to give the plaintiff a verdict for her proportionate share of this fifty dollars upon the evidence in the case. She testified that she and her children were dependent upon her husband for support, and that he was unable to support them without this pension. This fifty dollars was necessary in this view for the support of herself, her husband and their four children. If the statute had given her the right to sue in behalf of herself and all of her children, or family dependent upon this money, or the services of the father for their support, or a guardian had been appointed for these children, and their respective interests had been duly assigned to her, then the real obj ect of this statute could have been carried out by a single verdict; but now she was not entitled to recover but one-fifth of the amount of said fifty dollars, while in fact under the evidence I should presume that the jury actually took into account, and must undoubtedly have done so, the fact that she was the mother of four infant children deprived in part of their means of support through the intoxication of their father.

The jury, I think, under the charge and under the refusal to charge as requested, that the plaintiff could not recover separately the whole fifty dollars, and that each of the children could maintain a separate action for the damages sustained by either of them respectively for the same cause, did in fact in their verdict find for the plaintiff for the loss of the whole of said fifty dollars. Their verdict was $175, and there is no basis that we can see for such a verdict in the evidence, except for said fifty dollars. The case was not one for exemplary damages so far as we can see from the evidence contained in the bill of exceptions, and if the question came before us upon a case, we should feel bound to grant a new trial for excessiveness of the damages.' The jury in this class of cases have power to give exemplary damages, but they clearly should not be allowed to do so in ordinary cases where nothing is proved but the simple sale of a single glass of liquor under ordinary circumstances. Exemplary damages should only be given when there are circumstances of abuse or aggravation in the case proved on the part of the vendor of the liquor. The plaintiff’s husband was not intoxicated solely by liquor sold him at the defendants’ house, but in the same afternoon and evening it appears he had purchased and drank liquor-at three other places before he drank at the defendants’ hotel.

The verdict appears to us too large, and we think it was, if so. probably caused or influenced by the charge of the Circuit judge, and his refusal to charge as above stated, and upon this ground think the judgment should be reversed and a new trial granted, with costs to abide the event.

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

Present — Mullin, P. J., SMITH and Talcott, JJ.

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


source: Caselaw Access Project

author: E. DaewiN Shith, J.:

license: Public Domain

text:
    HANNAH STEPHENS, Respondent, v. JOHN CASBACKER, Appellant.

      Qrcmtee asmming mortgage — maybe released by his grantor — Assent of mortgagee not necessa/i’y.

    John Hoffman executed a mortgage to the plaintiff; afterward he conveyed the premises covered by the mortgage to the defendant Casbacker, subject to such mortgage which Casbacker assumed to pay. Casbacker entered under his deed and made payments on the mortgage, to the plaintiff. Afterward, Hoffman requested Casbacker, in writing, to convey the premises to his brother Lewis, and in consideration thereof executed a release, under seal, to Casbacker, of all obligations assumed by Casbacker under the deed from him. In an action by the plaintiff against Casbacker, to recover the amount due on the mortgage, held, that the release by Hoffman to Casbacker operated as a discharge from all obligations assumed under the deed to him.
    Appeal from a judgment, entered upon the report of a referee, in favor of the plaintiff and against the defendant, for $3,630.50.
    The plaintiff, Hannah Stephens, on October 21st, 1871, conveyed to John Hoffman an acre or thereabouts of land, in the town of Leyden, in the county of Lewis, on which were buildings occupied as a tavern stand. At the same time, to secure the payment of the price of the premises, John Hoffman executed to Hannah Stephens, the plaintiff, his bond with a mortgage on the premises for $3,600, payable in installments with annual interest, and Hoffman took possession of the premises and continued in possession till July 12th, 1872, when he sold and conveyed the premises
      to the defendant in this action-, John Casbacker, the deed accepted by Casbacker containing this clause : “ Subject, however, to a certain mortgage executed by said John Hoffman to Hannah Stephens, to secure the payment of the purchase-price of said premises, and which said mortgage is assumed by said John Cas-backer.” Casbacker took possession of the premises under this deed and made some payments on the mortgage to the plaintiff, till about April 5th, 1873, when John Hoffman bargained with him for a reconveyance of the premises, and by an instrument in writing requested the defendant to convey the premises to John’s brother, Lewis Hoffman, who, he said, was fully authorized to receive such conveyance, and in consideration of said reconveyance or conveyance to his brother, at his request, said John Hoffman executed and delivered to the defendant an instrument in writing, under his seal, whereby he released the defendant from all the obligations assumed by the latter on the purchase of said premises, and especially all liability on the mortgage given by him, John Hoffman, to Hannah Stephens, for the purchase money of said premises, and the defendant accordingly conveyed the mortgaged premises, April 7th, 1873, to said Lewis Hoffman by deed, charging the plaintiff’s mortgage on the premises, and stating its payment was assumed by said Lewis Hoffman. The defendant thereupon removed from the premises, which were taken possession of by said Lewis Hoffman, who has ever since continued in the actual or constructive possession thereof as owner. Lewis Hoffman made a payment on the mortgage to the plaintiff, July 25, 1873, and she receipted it to him. Also another payment in November, 1873, which she also acknowledged to him and indorsed its receipt as from him on the bond.
    In October, 1873, the plaintiff caused an insurance to be effected on the buildings, for $1,500, a'nd paid the premium out of the money she had received from Lewis Hoffman to apply on the mortgage. In December, 1873, the buildings on the premises were destroyed by fire. The insurance company failed, and nothing was realized from the insurance.
    The mortgage has not been foreclosed; the premises are now insufficient security for the debt, and this action was brought to compel the defendant, John Casbacker, to pay it, on the theory that he remains personally liable to the plaintiff on account of his contract with John Hoffman.

      B. J. Beach, for the appellant.

      Ward limit, Jr., for the respondent.
   E. DaewiN Shith, J.:

Within the cases of Burr v. Beers (24 N. Y., 178); Ricard v. Sanderson (41 id., 179); Thorp v. The Keokuk Coal Company (48 id., 253); and Lawrence v. Fox (20 id., 268), it must be deemed settled law in this State that where a party accepts a deed of land subject to a mortgage and assumes to pay such mortgage as part of the purchase-price of said premises, that the holder of such mortgage .may maintain an action at law upon such covenant, against such grantee, for the amount remaining unpaid upon such mortgage according to its terms or those of the bond accompanying the same.

It is needless to discuss the principle upon which such right of action rests, as the judges have quite obviously been unable to agree on that point; but have agreed with considerable unanimity that the law will imply whatever of reason or principle may be necessary to sustain the action. It is too late to question the reason or the law.

This case presents a new element for discussion not embraced in either of the above mentioned cases, or in any of the numerous cases in the reports of this State where the doctrine asserted in Lawrence v. Fox (supra) has been followed or asserted, except the case of Hartley v. Harrison (24 N. Y., 170).

In this case it appears that the plaintiff sold the land to one John Hoffman and took from him the bond and mortgage in question. Said Hoffman afterward sold the said premises to the defendant, subject to said mortgage, which the defendant assumed to pay. The defendant went into possession, and made one or two payments on said mortgage, and then, at the instance and written request of the said John Hoffman, conveyed said premises to a brother of said Hoffman, and on the same day took from said Hoffman a release under seal duly executed by said Hoffman releasing him from all liability on tbe bond and mortgage to tbe plaintiff, and from all obligation assumed by bim in tbe purchase of said premises, and agreeing himself to pay any deficiency which might arise upon a foreclosure. The defendant surrendered possession of said premises on the execution of such deed and release to Lewis Hoffman, the grantee in such deed.

The learned referee, upon the authority of the above mentioned case of Hartley v. Harrison, held that such release did not discharge the liability of the defendant assumed in the deed to him from said Hoffman, to pay the mortgage of the plaintiff referred to in said deed.

The covenant in said deed to pay the mortgage held by the plaintiff on said -premises was strictly a contract between the defendant and John Hoffman. The consideration, a conveyance of said land, came from John Hoffman. There was no privity of contract between the defendant and the plaintiff.

It is difficult to see upon what principle, if John Hoffman and the defendant were competent to-make such contract, they were not likewise competent to change or rescind the same.

While the defendant remained in possession of said premises and said covenant remained as between the parties in full force unre-voked or unrescinded, the plaintiff might doubtless have maintained an action upon it, or held the defendant responsible for any deficiency upon a foreclosure of said mortgage. But I can see no ground or reason in principle, why during such period the said Hoffman might not release the defendant from the personal obligation involved in such covenant, leaving the land simply subject to said mortgage, as he might have originally conveyed the same.

The case of Hartley v. Harrison does not, I think, fairly considered, sustain the decision of the learned referee, that the defendant remained liable upon the covenant in said deed after the execution and delivery of said release. Some of the parts or passages in the opinion in that case do undoubtedly go to that extent and warrant the conclusion of the referee, but these parts of the opinion are mere dicta, and were clearly not assented to by the other members of the court.

The report of the case states that all the judges concurred in the result except Judge Comstook ; that they disclaimed, however, any intention to pass upon the question whether the releases were not valid and effectual to discharge the grantee, Joseph Han’ison, from any liability to the mortgagee for the payment of the mortgage, and Judge ComstooK dissented from the decision.

That was an action in equity for the foreclosure of three mortgages. Two of said mortgages were given upon a usurious agreement for a loan of money. Subsequent to the execution of said mortgages, the mortgagor sold and conveyed the land covered by said mortgages, to the defendant Joseph Harrison, by deed, with warranty, subject to the payment of said mortgages, which the grantee in said deed assumed to pay as part of the purchase money for said land and premises. After issue' joined 'in said action the said original mortgagor released the defendant from the covenant contained in said deed, and covenanted that the said agreement contained in said deed in respect to the said mortgages was annulled, and that such conveyance should have the same effect as if such-agreement was not contained therein.

The cause was tried by a referee, who held that the release and covenant was inoperative to authorize the grantee of the land to avail himself of the defense of usury; that the relations of the parties to the premises which had .been appropriated as the fund for the payment of the mortgage could not be changed without the assent of the plaintiff, and directed judgment for the sale of the land for the payment of the mortgages, and that neither the mortgagor nor Joseph Harrison, the grantee in said deed, were personally liable for any deficiency that might arise upon the sale.

The learned referee, the Hon. Addison Gardiner, did in fact give effect to said release, and held that the mortgagor was discharged thereby from personal liability on the covenant in said deed. This decision was affirmed at the General Term in the seventh district, I presume, upon the opinion of the referee.

The affirmance of this judgment in the Court of Appeals, where six of the eight judges declined to pass upon the question whether the release was valid and effectual to discharge the grantee from any personal liability to pay said mortgage, with the distinct opinion of Judge Comstook on the point, in which, in his dissenting opinion, he said that “ he had doubt such was the effect of the release,” certainly must leave the affirmative and negative weight of opinion on tbe point in favor of the validity of such release.

The precise point presented in the above case seems to have been discussed by the present Court of Appeals, in distinguishing between the liability of a second mortgagee, who assumed payment of a first mortgage, and that of a grantee assuming such liability, in Garnsey v. Rogers (47 N. Y., 242), where the court say:' “It must further be considered that, when such an assumption is made on an absolute conveyance of land, it is unconditional and irrevocable. The grantor cannot retract his conveyance, or the grantee his promise or undertaking.” * * * “ The reservation of this right ” (i. a, of the grantor to discharge the grantee from the payment of the mortgage) “is inconsistent with the idea that the assumption by the grantee was for the benefit of the prior mortgagee; for, if it were, the grantor would have no control over the rights thus acquired by a third party.”

The judgment in that case was clearly right upon the ground upon which it was put by the referee. The mortgage remained a valid lien upon the land, and was not subject to a defense of usury interposed by Joseph Harrison, who had taken the title to it subject to the mortgage without payment of any other consideration. The Court of Appeals affirmed this view, and nothing else, I think, in the decision.

I think we should, therefore, follow the actual decision in that case, as made by the referee and affirmed in this court and the Court of Appeals, that a release executed as the one was in this ease by Hoffman to the defendant, was and is a valid discharge of his covenant, so far as relates to his personal liability thereon, leaving the land subject to the mortgage. There is no reason in law or equity, as I can conceive, which should lead us to an opposite conclusion. It would be a great hardship and wrong, as it seems to me in this particular case, to apply a different rule to this defendant. He had relinquished the possession and title of the land to his grantor after receiving the release in question. It was a virtual rescission of the contract of sale with a reconveyance of the land, and I cannot admit that there is any principle of law which requires that he be held to any further liability- upon said deed or conveyance.

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

-Judgment reversed.

Taloott, J., concurred ; MulliN, P. J., dissented.

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

This case was not cited in the points of counsel, and does not appear to have been brought to the attention of the court.

In the Second Department, in Simson v. Brown (6 Hun, 251), it is held, that the rights of the party for whose benefit the contract is made cannot be taken from him by the act of the other parties. — ■ [Rep.


author: E. DaRWIN Shith, J.:

text:
    LUCILLA CORNWELL, Administratrix, etc., Appellant, v. SOLOMON DECK and others, Respondents.

      WegUgenee — of administrairix, in Iceeping money of the estate — wliat is.

    An administratrix kept a large amount of money (the collections from the sales of goods in a store and of notes and accounts of the intestate), jn a trunk in a bedroom occupied by her crippled son, being one of the rooms occupied by her family adjoining the store. Part of such' collections had been kept there over a year. The nearest bank was twelve miles from where she lived. The money was stolen. Held, that had the money been only a portion of the estate lately collected, and had the rest been deposited in bank, she might have been held authorized to keep the same where she did, until a proper opportunity to deposit it in the bank occurred; but as the whole, or nearly all, the fund had been allowed to remain in such an insecure place for nearly a year, when it was finally stolen, it was such a violation of the ordinary laws of prudence as constituted negligence for which she was liable.
    Appeal from a decree of the surrogate of tbe county of Steuben, on a final accounting, refusing to allow the administratrix credit for moneys of the estate stolen, on account of negligence. The defendants were creditors of the estate, which was insolvent.
    The appellant is the widow of one A. Cornwell and was appointed the administratrix of his estate, April 16, 1872. Deceased was a merchant at Woodhull. The estate consisted of a stock of goods in the store there, besides accounts and notes. The administratrix, who was an old lady, employed her son to sell the goods at retail and collect the accounts. She, with her family, occupied rooms adjoining the store, and kept the money collected, in a trunk in a bed-room occupied by her crippled son. On the 20th of March, 1873, the sum of about $1,660 belonging to the estate, was stolen from said trunk and never recovered.

      The nearest bank was twelve miles from where she lived, at which, her husband had had a bankbook, and where he. used to deposit money, and draw checks. The place of deposit of the money was' known to several persons, and the money, or a portion of it, had been kept there for nearly a year.

      J. W. Dmmny, for the appellant.

      G. ZZ. MoMasier, for the respondents.
   E. DaRWIN Shith, J.:

Whether the appellant is liable for the loss of the $1,660, money belonging to the estate and stolen from a trunk in her possession, is the question presented upon this appeal.

In Chambersburg Savings Bank v. McLellan (76 Penn., 203), the rule is stated by Mueoue, J., in respect to the liability of trustees, as follows: “ It is well settled that a trustee shall not be surcharged by a court of equity, for a loss which has occurred in ease he has exercised common skill, common prudence and common caution, but for supine negligence or willful default, he shall be held responsible.”

What is supine negligence must depend upon the nature of the property to a great extent. While it might not be negligent to leave furniture and ordinary personal property in any room in an occupied dwelling-house, it would certainly be very improper to leave money or j ewels in such a place, unless they were secured in an iron safe.

In 1 Caines’ Cases in Error (Furman v. Coe, page 96, decided in 1804), it was held, that the executor was not liable where a body of men broke into his house, and by force carried away funds of the estate. The fund was acquired during the revolutionary war when the country was distracted, and armed bodies of men were roaming about. It does not appear that there was any bank or safe place of deposit near. The money was kept in a strong chest in an upper chamber, and no question was raised that the executor was negligent. The court held that under the circumstances he was not liable.

The trustee at the present time, when banks and places of safe deposit so largely abound, would, probably, under the same circumstances, be held liable for negligence, because a man of common prudence and acting with common caution would not retain the custody of money and valuables liable to be stolen in such a place, when he could easily deposit them in a place of safety. It is repeatedly held that if a trustee, in the exercise of his best judgment, deposits money in a bank of good repute, that he is not liable in the event of the failure of the bank. In Wharton on Negligence (§ 519, and cases there cited), it is held that a guardian having funds of his ward should not keep it in his house, but deposit it in bank. An executor or administrator is entitled to compensation for his services in taking care of the estate, and held to a stricter accountability than a trustee without compensation.

In Litchfield v. White (3 Seld., 438), it is held that an assignee, under a voluntary assignment for the benefit of creditors, being entitled to a compensation, is chargeable witli the care of a provident owner and liable for a loss occasioned by ordinary negligence. (See also 9 Alb. Law Journal, 423, and cases cited.) The admin-istratrix in this ease is an old lady unaccustomed to business, which facts go to palliate what would in an ordinary business man be gross negligence, yet I cannot see why having assumed this trust for which she is compensated, and having gone on and sold the property and collected the debts due the estate, she should not be held to the exercise of at least common prudence. It appears that this money was kept in a place known to several persons. The place, to be sure, was a bed-room occupied by her sick son, but it was, nevertheless, a very insecure depository for such a sum of money, and presented a constant temptation to take it even to the members of her own family. Her husband had kept a bank account, of which she was aware. Although the bank was some twelve miles off, he had deemed it proper to deposit in it there, and she could and should have done the same. Had this money been only a portion of the estate lately collected, and had the rest been deposited in bank, she might be held authorized to keep the same where she did, until a proper opportunity to deposit in bank occurred, but the whole, or nearly all this fund had been allowed to remain in this insecure place for nearly a year, until it was finally stolen.

If executors and adminstrators are permitted to violate the most ordinary laws of prudence in such a manner, it will open the door for innumerable frauds, and place creditors and other persons interested in trust funds at the mercy of careless and reckless trustees.

I think the decree or order should be affirmed.

Present — Muluin, P. J., Shith and Taloott, JJ.

Decree of surrogate affirmed, with costs.


author: E. DaewiN Smith, J.:

text:
    WILLIAM ALIGER, Respondent, v. EBENEZER KEELER, Appellant.

      Beceiptor — right of — has a lien for his fees.

    A constable levied on certain property under a judgment in favor of the defendant, against the plaintiff, and committed the property to the defendant as a receiptor. Held, that the latter acquired a valid lien upon the property, for his just and lawful charges as such; that payment of the judgment to the sheriff, upon the judgment of affirmance rendered upon appeal to the County Court, did not discharge the lien of the defendant, or of the constable for his fees.
    Appeal from a judgment in favor of the plaintiff and against the defendant, upon the report of a referee.
    On the 11th day of December, 1871, the defendant, Ebenezer Keeler, recovered a judgment, before a justice of the peace, against the plaintiff, William Aliger, and one Clarissa Yan Yorhis for twenty-nine dollars. On the 12th day of December, 1871, an execution was issued upon said judgment against the property of the defendants Aliger and Yan Yorhis, and on the 26th day of the same month it was levied on the cattle for the conversion of which this action was brought.
    The constable took possession of the property levied on and delivered the same to Ebenezer Keeler, the defendant in this action, as a receiptor thereof.
    The constable advertised the property for sale, but the sale was stayed by an appeal to the County Court and by the giving of an undertaking.
    The judgment of the justice was affirmed by the County Court on the 29th day of September, 1873; and on the 30th day of the same month an execution was issued, upon the judgment of the County Court, to the sheriff of Steuben county.

      At some time thereafter the amount of that execution was paid to the sheriff.
    On the 6th day of January, 1874, the cattle in question still remained in the possession of the defendant Keeler, as receiptor, when Clarissa Yan Yorhis, one of the judgment debtors in the court below, transferred an interest in the same to William Aliger, the other judgment debtor.
    On the seventh day of January a demand of the cattle was made, and the receiptor refused to give them up unless the constable’s fees and expenses are paid, and he was paid for their keeping.
    On the tenth day of the same month this action was brought to recover the value of the cattle, on the ground that they had been converted by the receiptor.
    In his answer the defendant claimed his right to hold the property, as receiptor, until the costs and expenses of the taking and keeping the cattle were paid, and claimed to recover the amount thereof in this action.

      Butler c& 8earl for the appellant.

      A. M. Spooner, for the respondent.
   E. DaewiN Smith, J.:

The constable levied upon the property in question under a valid execution issued upon a valid judgment.

It was his duty to hold and take eai’e of the property till the judgment and his fees were discharged. He could, as he did, commit the property to the defendant’s custody to hold as a receiptor, and the latter, under the constable, acquired a valid lien upon the property for his just and lawful charges as such receiptor. The payment of the judgment to the plaintiff or to the sheriffj upon the judgment rendered upon the appeal to the County Court, did not discharge the lien of the defendant, or of the constable for his fees.

Judgment should have been given upon this ground for the defendant, and it should now be reversed.

Present' — MulliN, P. J., Smith and Taloott, JJ.

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


author: Mullin, P. J.:

text:
    ELIZA LE CLARE, Respondent, v. JOHN A. STEWART, Surviving Administrator, etc., of LEWIS M. SHERWOOD, Appellant.

      Witness — next of kin incompetent, though called to testify against his interest— Code, § 899.
    The testimony of one who is nest of kin and interested in the event of an action, although not a party thereto, as to conversations with defendant’s intestate, whether it be favorable to or against his interest, is inadmissible, under section 899 of the Code.
    Appeal from a judgment in favor, of the plaintiff, entered upon the report of a referee. On the bearing before the referee, he admitted the testimony of one Benjamin Sherwood, a son of intestate’s brother, called as a witness on the part of the plaintiff to testify to a personal transaction with the intestate. The interest of the witness was against the plaintiff as he was entitled, as next of kin, to a share of the personal property, and if the claim of the plaintiff was defeated his share would be increased.

      G. H. McMaster, for the appellant.

      William JSumsey, for the respondent.
   Mullin, P. J.:

We cannot interfere with the referee’s findings of fact in this case. The evidence was conflicting, and although we would have been better satisfied had the findings been the other way, yet the referee having the witnesses before him, and hence a much better opportunity of judging of their veracity, has credited the story of the plaintiff’s witnesses and we cannot say that he ought not to have done so.

We must reverse the judgment, however, by reason of the admission of the evidence of Benjamin Sherwood, one of the next of kin of the defendant’s intestate.

The intestate died leaving a wife, but no father, mother or children.

The witness was his nephew, and hence one of his next of kin and entitled to share in his estate. This action was brought to reach and lessen the assets which would go to the next of kin. The witness was therefore interested in the event of the suit, and by section 399 of the Code such a person is prohibited from being examined as a witness in such a suit.

At common law this witness would have been competent, being called to testify against his interest.

But the section cited allows of no inquiry into the nature or extent of the interest. It says he shall not be examined. To admit the witness is to override the statute.

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

Present- — -MulliN, P. J., Smith and Taloott, JJ.

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


author: MulliN, P. J.:

text:
    MARY SMITH, Respondent, v. ELIAS REYNOLDS and others, Appellants.

      Intoxicating liquors — furnished by bm'tendar without knowledge of, and against orders of employers — Liability of employe/s —chapter 646, Laws of 1873.
    The supplying of liquor to a party who is injured afterwards, by reason thereof, although done by the bartender without the knowledge or authority of his employers, and against their instructions, makes the employers liable, under chapter 646 of the Laws of 1873, for the injuries sustained.

    Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury.
    The defendants were the landlords and proprietors of a hotel at Hinsdale, in the county of Cattaraugus, known as the Glade House. Henry Smith, the plaintiff’s husband, who had for several years been in the habit of frequent intoxication, drank at the defendants’ bar several times on the evening of July 8, 1874, and left the hotel at a late hour that evening in an intoxicated state, and started toward home. His house was at some distance from the hotel and the village, and between the house and the hotel ran the trade of the Buffalo, New York and Philadelphia railroad. The next that was seen of him he was lying on the track, about six o’clock the next morning, in a condition of stupefaction, caused by such intoxication, and was there struck by a passing train and received injuries from which he died. Although his habits were bad, he provided for his family, consisting of his wife and two children. The defendants raised, among others, the objection that the action under the act chapter 646, Laws of 1873, could not be maintained by the widow.

      Gary <Js Jewell, for the appellants.

      D. II. Bolles, for the respondent.

       See post, p. 148, and ante, p. 112.

   MulliN, P. J.:

The defendants kept a tavern at Hinsdale in the county of Cat-taraugus.

They had a license from the proper authorities to sell liquor to be drank on their premises. Their bartender sold liquor to the plaintiff’s husband, an intemperate man, in July, 1874, by means of which, in whole or in part, he became intoxicated and lay down or fell down on the track of the Buffalo, New York and Philadelphia Railroad along which he passed on going from the tavern to his house. He was struck by the cars and was injured, and in consequence of the injuries there and then received he died, whereby, it is claimed, the plaintiff was deprived of support and is, for that reason, entitled to maintain an action against the defendants for the damages sustained by her, under section 1 of chapter 646 of the Laws of 1873.

In Jackson v. Brookins (5 Hun, 530), it was held, that a wife could maintain an action for loss of support resulting from the death of her husband, against the person who sold him liquor, in consequence of drinking which, he became intoxicated, and was killed.

No sufficient reason is suggested why we should abandon the doctrine of that ease ; on the contrary, we are satisfied that the construction we have given to the statute is the only one that can give full effect to tbe intentions of tbe legislature, and protect tbe community against the wrongs done by dealers in intoxicating liquors in selling them to persons known to be intoxicated, or in quantities that they must know will produce drunkenness with its train of evils, not only to tbe one who drinks it but all connected with him, as well as to tbe community in which be lives.

Tbe only question I propose to consider is tbe refusal of tbe judge at tbe Circuit, to charge tbe jury that if they found from tbe evidence that tbe liquor alleged to have been delivered to deceased was delivered by defendants’ bartender without the knowledge of tbe defendants, and after defendants had directed him not to sell or give away any liquor to tbe deceased, then tbe plaintiff cannot recover, as requested by tbe defendants’ counsel.

No principle is better settled in the law relating to the rights and liabilities of principal and agent, than that the principal is liable to third persons for tbe misfeasance, negligence and omissions of tbe agent in tbe business of bis agency. (Story on Agency, § 308 ; Paley’s Agency, 294.) In the note at the foot of tbe page cited, it is said: “ Tbe general rule is that the principal is responsible, civilly, for the acts of bis agent, but not criminally, unless done under bis express authority.”

In note 1, at tbe foot of page 295, it is said, that “ the rule that tbe master is liable for tbe wrongful acts of his servants, is not confined to domestic servants, but has-a more extended operation. All such as act for, do tbe work of, serve another, are, in contemplation of law, bis servants and fall under the rule. * * *

“It makes no difference whether those servants are paid by tbe job or by the year or by tbe day; a third person has no concern with the terms of their private agreements. The loss to him is the .same, let the agreements be either way; nor does it make any difference whether the person for whom the work is done be present or absent. If he expects to be absent, more care should be used in making the selection. Nor is any distinction taken when the work is of such a nature that the owner cannot be expected to do it himself and must necessarily employ others to do it. In all these cases the person for whom the work is done is liable, if a third person is injured.”

In note 1, to page 302 of the work, it is said : “ As a general, rule, a master is liable to answer in a civil suit for the tortious or wrongful acts of his servant, if those acts are done in the course of his employment in the master’s service * * * and it makes no difference that the master did not authorize or' even know of the servant’s act or neglect, for even if he disapproved of or forbade it, he is equally liable if the act be done in the course of the servant’s employment.”

In view of these authorities, and others which might be cited, the request to charge was properly refused.

The judgment must be affirmed.

Present — Mullin, P. J., SMith and Taloott, JJ.

Judgment affirmed.


text:
    WILLIAM D. ONTHANK, Appellant, v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILROAD COMPANY, Respondent.

      Easement — Or amt of me of water — amount not defined — easement limited to a/mount fvi'st taken.

    A grant was made to use certain water and lay down pipes therefor, but the size of the pipes and the amount of water to he taken were not defined. Pipes were laid, and the water that they could supply used for a number of years. Held, that this limited the extent of the grant, and the grantee was liable for damages occasioned by the diversion of a greater quantity of water than originally used, caused by taking up such pipes and replacing them by larger ones. The grant being of an easement, the occupation under it must be regarded as the exercise of the right granted, applying the same principles to easements of water as of land.
    Motion by plaintiff for a new trial, made on exceptions ordered to be heard in the first instance at the General Term.
    The plaintiff was the owner of a farm of forty-five acres, through which the defendant’s road passed. He raised small fruits, and was interested in the defendant’s keeping open a station at Portland, about half a mile from his residence.
    This station had been discontinued two months, when in 1863 the plaintiff and others made an effort to induce the company to reopen it, and for the purpose of promoting that object executed to the company a grant to lay water pipes across his land, and Samuel Brown also deeded them the right to take the water from his spring to their tanks at Portland station.
    The company continued in good faith on their part to so ose the water until in 1871, when they enlarged their reservoir, put in larger pipes and conducted nearly all the water to Brocton station, which is over a mile east from Portland station, and there used it for their own purposes and introduced it into private houses, and discontinued Portland station.
    This was all done against the remonstrance of the plaintiff.
    The water from the spring formed what is known as Deer Lick brook, which crossed plaintiff’s farm, and had always been a durable stream. While the first set of pipes were in, and the water was only taken to Portland station, a small quantity was used, and the brook continued to furnish an adequate supply for the plaintiff’s use. After the new pipes were in, and the water taken to Brocton for private and public purposes, the water ceased to fiow in the stream, and the plaintiff was deprived of its use.
    The action was brought to recover damages for an alleged trespass-upon the plaintiff’s land, in digging up the soil, laying down pipe, and conducting water therein across said land wrongfully. Also, for diverting the water of a spring on an adjoining farm into such pipes. The court granted a nonsuit.

      E. C. Kingsbury, for the appellant.

      Lanúng & Willett, for the respondent.
   MulliN, P. J.:

In May, 1863, Samuel Brown owned a piece of land in the town of Portland, in the county of Chautauqua, on which were several springs that discharged their water into a small brook; that after flowing over the lands of divers persons emptied into a lake near by.

The Buffalo and State Line Railroad Company had erected, or was about to erect, a station for its use on the line of its road called the Portland station, and in order to supply its engines, etc., with water at said station purchased from said Brown the right to divert the water of said springs over his lands to be taken to said station in pipes, and the same was conveyed to the company by quit-claim deed.

On the day of the date of said last mentioned deed the railroad company purchased, for a valuable consideration, of the plaintiff the right to lay pipes on his land for the purpose of conveying the water from where the pipes on Brown’s land terminated to the station, and also the right to enter on said land to repair said pipes. The railroad company constructed on Brown’s land a reservoir in which to collect the water of said springs and excavated a trench on the lands of said Brown and the plaintiff, laid pipes therein and conducted the water to said station.

The defendant subsequently acquired the right so aforesaid granted by the plaintiff and Brown, and is still the rightful owner of the same.

In 1871 the defendant discontinued the Portland station and erected one called the Brocton station at a point about a mile east of the Portland station, and that station has been used by the defendant ever since.

The pipe which was used from 1863 until 1871 was about two and a quarter inches in diameter, and rust had accumulated on it to such an extent as to hinder, materially, the flow of water through it.

In order to obtain a larger supply of water, the defendant caused to be taken up the pipe first laid and in its place put down new-pipe four inches in diameter, from the reservoir to the land of defendant, and from that line to the station it was three inches in diameter. The new pipe conveyed considerably more water than the former, so much more that in a dry season it carried off all the water that would otherwise have flowed into the brook, at which plaintiff was accustomed to water his cattle. The water, when taken to the station, was used by the defendant for its own purposes and by others living near the station.

For the damages sustained by the plaintiff, by entering on his land and diverting the water from the brook and conducting it to Brocton station this action was brought. The defendant justified this entry and diversion of the water under the grants from Brown and the plaintiff.

At the close of the plaintiff’s evidence the defendant’s counsel moved for a nonsuit, on the ground that the defendant had, by virtue of the said conveyance, the right to enter and divert said water. The court granted the motion and nonsuited the plaintiff, and directed the- motion for a new -trial on exceptions to be heard in the first instance in this court.

The grant of the right to divert the water from Brown does not limit, in any way, the quantity of water that the grantee might collect in and take from the reservoir; and it was the right of the grantee to take whatever quantity it deemed necessary or proper for its use. When, however, the grantee constructed a reservoir and put down a two and a-quarter inch pipe, it thereby ascertained and limited the quantity it was entitled to take by virtue of the grant.

I have not found any case defining the extent of the right of a grantee in a case like this; but the right of a grantee of a right of way, when the deed does not define it, has been repeatedly passed upon by the courts. I am unable to discover any reason why the same principle should not apply to both.

In Washburn on Easements, 225, it is said, when once the extent of the right is fixed by use it may not be changed except by a sufficiently long acquiescence therein by the parties in interest; and this the author says applies to an aqueduct as well as a way.

In Jones v. Percival (5 Pick., 485) the defendant attempted to justify a trespass by virtue of a right of way over the plaintiff’s land in such route as defendant should deem best, having regard to the owner’s interest.-

The court say that the defendant could not have such a right over plaintiff’s land, because it was altogether too indefinite and uncertain. It would authorize defendant from year to year, or day to day, to change its course. Having been once established any deviation from it would be a trespass. Washburne, at page 240, says: The grant being of an easement the occupation under it must be regarded as the exercise of the right granted.”

If I am right in supposing these principles apply to the easement insisted on by the defendant, it follows that it is entitled only to the quantity of water that could flow through the pipes first laid down.

The plaintiff, as an owner of the bed of the brook below the land of Brown, was entitled to have all the water of the spring flow into the brook and thence on to the land of the plaintiff, not granted to the defendant. The plaintiff was aware of the grant by Brown of the water and executed his deed of the right to lay pipes in his land in order to enable defendant to conduct the water to the station.

The plaintiff has, therefore, the right to recover damages for the injury done him by diversion of a greater quantity of water than was taken by the pipes first laid down. Whether the fact that plaintiff aided in laying the new pipes should deprive him in any degree of the right to insist upon the damages, to which he would otherwise be entitled, can be more properly decided on another trial when all the evidence on both sides is given. Defendant was not a trespasser in entering on plaintiff’s land to take up and relay the pipes. This right is specifically granted by the deed. It is liable only for a greater diversion of water than it previously had.

I have not said any thing as to whether defendant could permit parties living near the depot to use the water from the reservoir, as it is not material if the plaintiff shall recover judgment for the water used beyond that which was first taken from the reservoir. If it is compelled to pay for such excess, it may apply it to such uses as it deems proper.

The nonsuit must be set aside and a new trial granted, costs to abide event.

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

New trial granted, costs to abide event.


text:
    PATRICK COUGHLIN, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Attorney and dient— agreement to prosecute action for one-half the dmiages— Vremd-ulent settlement by dient— Belief of attorney — Evidence — defense not pleaded— to controvert matter set up in answer — ad/missible.

    Attorneys agreed with, a party who had been injured by a collision on a railroad, to prosecute an action for him, without expense to him, against the company for the damages sustained, in consideration of one-half of the damages to be recovered. On the service of the summons in the action on a director of the company, he . was informed that the attorneys had an interest in the suit for their services, and the company must not settle without their consent. Afterward the company obtained, in consideration of $1,000, a release from the plaintiff (without the knowledge or consent of his attorneys) from all claim for damages.

      Held, that it would be unnecessary and unjust to set aside the release, as that would take from the defendant the protection which it afforded it against the plaintiff; but it was the duty of the referee before whom the cause was tried, having found the release to be fraudulent, to have held it void as against the attorneys, and complied with their request and ascertained the damages sustained by the plaintiff, and given judgment against the defendant for one-half the amount thereof.
    The defendant having insisted that the referee could not try the question whether the release was obtained fraudulently, as that was not one of the issues referred to him:

      Held, that as the release was set up as a defense in the answer, and by the Code all allegations in the answer are to be deemed denied, unless they constitute a counter-claim, in which case a reply must be put in, the plaintiff had a right to prove on the trial any matter that constituted an answer to the matter set up by the defendant as a defense, and the evidence that the release was obtained by fraud was a perfect answer to that instrument as a defense, if it was established by the evidence.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      Strong db Goodyear, for the appellant.

      JLaning <& Willett, for the respondent.
   Mullin, P. J.:

The plaintiff, while riding as a passenger on the cars of the defendant, in East Buffalo, in January, 1874, was injured, as it is alleged, by reason of the carelessness of the employes of the defendant, which brought about a collision between an engine of the defendant and the car in which plaintiff was sitting.

A day or two after the injury Mr. Strong, one of the plaintiff’s attorneys, called on him (the plaintiff), and proposed to commence and prosecute to judgment, an action to recover the damages sustained by plaintiff, they (the attorneys) paying all expenses and disbursements, in consideration of the agreement of plaintiff to allow the attorneys one-lialf of the damages recovered, and if nothing was recovered, then nothing was to be charged the plaintiff for their services.

After the action was commenced the plaintiff, in consideration of $1,000, released the defendant from all claim for damages.

Several letters had passed between .the plaintiff’s attorneys and the general superintendent of the defendant, whose office was in Albany, in reference to a settlement of this and several other actions for injuries received at the same time plaintiff received his, and in the letters from the attorney, the superintendent was notified that plaintiff’s attorneys claimed a lien on the damages obtained in the action, and that the same must be paid to them.

The attorney of the defendant, who made the settlement and obtained the release, did not know that the plaintiff’s attorneys had given to defendant notice of their lien and forbidden any payment to plaintiff, but he did know of the pending of the action.

The plaintiff’s attorneys were not informed of the settlement until some time after the same was made and the release obtained.

The issues were referred, and on the trial evidence was given on the part of the plaintiff establishing a cause of action against the defendant,, and the plaintiff rested.

The defendant, under its second answer in this action, offered in evidence the release by the plaintiff. The plaintiff’s counsel objected to the reception of the same in evidence, on the grounds:

1. That when given, an action was pending between plaintiff and defendant, commenced January loth, 1874.

2. It cloes not, on its face, assume to be a settlement of such a suit, nor does it purport to be a receipt for the same damages claimed in the suit.

3. If held to be for the same damages, it does not settle the suit according to law.

4. It is not admissible under the plea of the defendant, and is not under seal.

The objection was overruled, and plaintiff’s counsel excepted.

The release was then received in evidence.

The defendant’s counsel next proved the negotiations between defendant’s agents and the plaintiff, which resulted in the release, and rested.

The plaintiff’s counsel then proved and put in evidence the written agreement between the plaintiff and his attorneys, by which he agreed to allow them, as compensation for their services and expenses in carrying on the suit, one-half the damages. It was also proved on the part of the plaintiff, the person who served the summons on a director of the defendant living in Buffalo, that at the time of the service he told the director he was directed by the plaintiff’s attorneys to inform him that they had an interest in the suit for their services, and the defendant must not settle without their consent.

The referee'found that before the complaint was served the plaintiff executed and delivered a release of any claim for damages by reason of the collision, in consideration of $1,000 by the company to him paid. He found, as matters of law, that the release was a complete defense to the action, and ordered judgment for the defendant. The referee subsequently found that plaintiff sustained damages by reason of the collision to the amount of $1,000.

He also finds the making of the contract between plaintiff and his attorneys, and that they, in good faith, went on to fulfill their obligations.

He also finds that plaintiff’s attorneys gave notice to the agents of the defendant, of their claim to a share of any sum recovered in the action.

He also finds that the settlement was fraudulent and collusive as against plaintiff’s attorneys, and was made without their knowledge.

The defendant excepted to several of the findings, and to the refusal of the referee to rule upon and decide several propositions . which will be referred to hereafter. The plaintiff appeals.

It has been repeatedly held that an attorney has no lien for his costs until the recovery, by Ms client, of a judgment on the verdict. (Shank v. Shoemaker, 18 N. Y., 489; Brown v. Comstock, 10 Barb., 67; Sweet v. Bartlett, 4 Sandf., 661.)

But the court will protect the attorney against a fraudulent or collusive settlement between his client and the adverse party by setting aside any release that may have been given, or where the right to costs has not been perfected by reason of there being no recovery entitling the attorney to his costs, the attorney will be permitted to proceed in the action as if no release had been given until the costs aré adjusted. (Rasquin v. Knickerbocker Stage Co., 12 Abb. Pr., 324; Shackleton v. Hart, 12 Abb. Pr., 325, note.)

As a general rule, the attorney has enforced his lien or protected himself against collusive settlements before an actual lien attached, by motion for leave to proceed with the action, when that is necessary, and the client will not be permitted to prevent him.

In Martin v. Hawks (15 Johns., 405), an action was brought by the plaintiff’s attorney, in the plaintiff’s name, for the escape of the defendant, in an action prosecuted by the plaintiffs against one Robinson, against whom an action for assault and battery had been brought and a recovery had of six cents damages and for seventy-seven dollars costs. A ca. sa. had been issued and the defendant in that suit committed thereon.

After the commitment, and on the same day, the plaintiff released the defendant Robinson, and directed the sheriff to discharge him from the arrest on the ca. sa., as he had received in full the debt and costs. The sheriff accordingly discharged the defendant, and it was for this escape thus allowed the action was brought.

On the trial the plaintiff’s counsel offered to prove that the judgment against Robinson, with the exception of six cents, belonged to Jordan, the attorney for the plaintiff, as the taxable costs; that the deputy sheriff, to whom the ca. sa. was delivered, was notified of the ownership of the judgment, and was forbidden to pay to plaintiff, and was required to pay to the attorney.

The evidence was rejected and the plaintiff nonsuited. The General Term granted a new trial, holding that the attorney had a lien upon tlie original judgment, which the court would protect and enforce, and as the remedy of the attorney could only be enforced by holding him entitled to prosecute the sheriff for the escape, he was entitled to prosecute the suit to judgment.

The difference between the facts in this case and that cited do not impair the attorney’s right to relief. In this case the attorney had no lien for his costs; in that he had; but the right of the attorney to be protected against collusive settlements that deprive him of his costs is just as much entitled to protection, as it would be against a similar fraud to defeat his lien on the verdict or judgment. The difference is in the manner the remedy is to be applied, rather than in the remedy itself.

In this case the attorney requested of the court permission to make proof of the cause of action in favor of his client, in order that he (the attorney) might establish the amount of compensation to which he was entitled. In that case the attorney was permitted to prosecute a new and independent action to obtain against a third party the amount of his costs in such former action, which he had lost by the fraud of his client and the misconduct of the sheriff'.

If the action for the escape could be prosecuted by the attorney, I can perceive no reason why the attorney may not maintain this action. In both the attorney had an interest in the subject of the action for his costs, which the court would protect against fraud u-ulent and collusive settlements and releases, whether made before or after verdict or judgment. If the fraudulent release is given or the fraudulent settlement made before verdict, and the case is one in which the damages in the case must be ascertained before the right of the attorney to costs is determined, the relief he is entitled to is to prosecute the action to judgment, or, when that cannot be done, to prosecute a new action against whoever may be legally liable to redress the wrong done him.

In this case the attorney must have the damages in the action assessed, before the costs to which he is entitled, by virtue of the contract between him and his client, can .be ascertained.

It is not necessary to inquire whether he could maintain another action against those engaged in the fraudulent attempt to deprive him of his costs. This suit is pending and another is wholly unnecessary.

It would be of very little advantage to set aside the release, that would take from the defendant the protection which it affords it against the plaintiff. This would be both unnecessary and unjust. The same result is obtained by holding it -void as against the attorney and leaving him to go on in the action as far as is necessary to the protection of his right. The referee finds that the settlement was made in fraud of the rights of the attorneys. It would be a disgrace to the administration of justice if the courts could not protect a party thus defrauded against the effect of such fraudulent arrangements.

The respondent’s counsel insists that the referee could not try the question as to whether the release was obtained fraudulently, as that was not one of the issues referred to him. The release was set up as a defense in the answer. By the Code the allegations in the answer are to be deemed denied unless they constitute a counter-claim, in which ease a reply must be put in.

It is, therefore, the right of a plaintiff to prove on the trial any matter that constitutes an answer to the matter set up by the defendant as a defense to the cause of action.

That the release was obtained by fraud was a perfect answer to that instrument as a defense, if it was established by the evidence. If the fraud is established it will not affect the rights, of the defendant under it, except so far as necessary to protect the attorney.

It was the duty of the referee, having found the release to be fraudulent, to have complied with the request of the plaintiff’s attorneys and ascertained the damages sustained by the plaintiff, and to have given judgment against the defendant for one-half the amount thereof.

The judgment must be reversed and a new trial ordered, costs to abide the event.

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

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


author: Taloott, J.:

text:
    FRANK W. WAGGONER and JAMES W. EAGER, Respondents, v. HARRIET E. MILLINGTON, Appellant.

      Married, woman — 'note by, charging separate estate, though for debt of husband, valid — blank place of payment, can be filed in by holder —Practice — immaterial aver-ments.

    A married woman executed and delivered the following note:
    “$60.00. Syracuse, 1ST. Y., February 26, 1876.
    Six months after date I promise to pay to the order of Waggoner & Eager sixty dollars at ,value received, with use. And for value received, I hereby agree that the above sum shall be paid out of my separate estate, and make the same a charge thereon.
    (Signed) HARRIET E. MILLINGTON.”

      Held, that the note was not avoided -by filling in after the word “ at,” in a blank left for the place of payment, “State Bank of Syracuse, N. Y.,” the leaving of such blank giving implied authority to the lawful holder to fill it up by designating a place of payment; that the body of the note contained a sufficient admission that the defendant was possessed of a separate estate.
    That an allegation in the answer that the note was given for a prior indebtedness of her husband in his own business and for his own benefit, and that she was solicited to sign said note for her husband and did so without any intention of charging her separate estate or knowing that she had done so, following a general denial of each and every allegation in the complaint “ except as hereinafter stated and admitted,” had the sole legal effect to admit the making of the note, and the qualification of the admission was immaterial.
    That such allegation constituted no defense to the note.
    Appeal from a judgment entered upon the report of a referee in favor of the plaintiffs for $182.05 damages and costs. The action was upon a promissory note made by the defendant, a married woman, containing this clause: And for value received, I hereby agree that the above sum shall be paid out of my separate estate, and make the same a charge thereon,” and delivered to the plaintiffs to secure an extension of time on a judgment by them against the husband of the defendant. When delivered, the blank for the place of payment was not filled out, but was caused to be done by the plaintiffs, by inserting after the word “ at,” “ State Bank, Syracuse, N. Y.,” without the knowledge or express consent of the defendant, but in good faith and without any actual fraudulent intent on the part of the plaintiffs.

      The answer first denied each and every allegation of the complaint “ except as hereinafter stated and admitted.” And as a further answer and third defense, alleged “ that the note mentioned and described in the complaint, was not given by her in any business of her own, separate or otherwise, nor did it relate to, or in any way benefit, any estate of hers, separate or otherwise, but was given for a prior -indebtedness of Philander Millington (her husband), “ in his own business and for his own benefit, and this defendant was solicited to sign said note as surety for the said Philander, and did so without any intention of charging her separate estate, or knowing that she had done so.”

      W. Sanders, for the appellant.

      Baldwin db Hahn, for the respondents.
   Taloott, J.:

This is an appeal from a judgment on the report of a referee. The action was on a note made by the defendant, a married woman, to secure a debt due from her husband. The note contained a clause distinctly charging the separate estate of the defendant with the payment of the debt.

The referee correctly held, that the fact that the defendant signed the note was admitted by the answer. The answer commenced with a general denial of each and every allegation in the complaint contained, except as hereinafter stated and admitted.”

The defendant for a third defense alleges that the note “was given for a prior indebtedness of Philander Millington in his own business and for his own benefit, and this defendant was solicited to sign said note for said Philander, and did so without any intention of charging her separate estate or knowing that she had done so.”

The third answer contains no defense to the action, and its sole office in legal effect is to admit the making of the note. The general denial is qualified by the words except as hereinafter stated and admitted.” There appears to be no admission in the answer on any subject except that the defendant made the note, and the qualification of the denial is senseless except it be construed to refer to the making of the note.

If ambiguous, the pleading is to be construed most strongly against the pleader.

The note was not avoided by the filling of the blank after the word “ at,” left for inserting the place of payment.

The leaving of this blank gave implied authority to the lawful holder to fill it up by designating a place of payment. (Kitchen v. Place, 41 Barb., 465; Redlich v. Doll, 54 N. Y., 234.) The body of the note contained a sufficient admission that the defendant was possessed of a separate estate. The court itself corrected the error,- if any, in putting its refusal to adjourn the case on the ground that the evidence proposed to be given by the defendant was inadmissible under the pleadings, by withdrawing the refusal to adjourn and adjourning for four days to give defendant an opportunity to produce the evidence, and notifying the -defendant thereof. At the expiration of that time the defendant should have produced the evidence or shown cause for a further adjournment.

The judgment must be affirmed.

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

Judgment affirmed.


author: Talcott, J.:

text:
    HENRY H. CRAIG and others, Respondents, v. JOHN M. SWINERTON, Impleaded with HENRY JANES, Appellant.

      Mechanic’s lien— chap. 489, Lems of 1878 — materials furnished to vendee in possession under exeewtm'y cont/ract — Consent — Title of owner of fee not affected — when.

    Chapter 489, Laws of 1878, does not authorize the creation of a lien as against the owner of the legal title to property, in regard to which there is an outstanding executory contract of sale with the vendee in, and entitled to the possession of the land, for materials and labor furnished to the vendee on a building contract made with him, or for his own benefit, unless such labor or supplies are furnished with the express consent of the owner of the fee of the land.

      Appeal by the defendant Swinerton from a judgment in favor of the plaintiff, entered upon the report of a referee, and from an order confirming the report and an order denying a motion for'a new trial. The action was brought in the Monroe County Court for the foreclosure of a mechanic’s lien under chapter 489, Laws of 1873, and was referred. The notice of lien was filed December 10, 1873, and alleged a claim against Henry Janes for materials “ furnished to and used by said Henry Janes, in pursuance of an agreement with him,” and that the same were used in erecting “ three dwelling-houses and appurtenances on Jennings street,” in Irondequoit, and that sixty days have not elapsed since the said materials were furnished. That Janes “has the equitable title and one John M. Swinerton the legal title to said buildings,” etc. The notice of foreclosure, after setting forth the claim for materials, contained this clause: “ Which materials were furnished to and applied by the said Janes in erecting the three buildings now owned by yon, said Swinerton,” and was the only allegation relating to Swinerton.

      Quincy Fan Voorhis, for the appellant, Swinerton.

      De L. Crittenden, for the respondent.

         See Wheeler v. Scofield, 6 Hun, 655. — [Rep.

   Talcott, J.:

This is an action commenced in the County Court of Monroe county to foreclose a mechanic’s lien and comes here on an appeal by John M. Swinerton from a judgment rendered on the report of a referee, and from an order confirming the same and from an order denying a new trial in the action. The proceeding was commenced under chapter 489 of the Laws of 1873. The statute provides (§ 1), that whoever shall perform any labor in erecting, altering or repairing any house, or who shall furnish any materials therefor with the consent of the owner, being such owner as is in this section hereinafter described, shall, on filing a certain notice, have a lien for the value of such labor and materials, and upon the lot on which the same shall stand, to the extent of the right, title and interest of the owner of the property, whether owner in fee or of a less estate, or whether lessee for a term of years thereafter, or vendee in possession under a contract existing at the ‘time of the filing of said notice, or any right, title or interest in real estate against which an execution at law may now be issued. In this case one Strawbridge was the builder, having contracted with one Henry Janes to erect three houses on some land in the outskirts of Rochester, of which Janes had the possession and control as a vendee under an executory contract of sale. The claimants are lumber dealers who furnished certain lumber, used in the erection of the said houses, upon the order and credit of Janes. It is claimed that the defendant John M. Swinerton held the legal title to the land in question at the time of the filing of the notice of claim in the county clerk’s office. The notice, upon the filing of which in the county clerk’s office it is claimed that the lien was created, alleges that the lumber was furnished to Henry Janes and in pursuance of an agreement with him, and that Henry Janes has the equitable title and “one John M. Swinerton, of the city, county and State aforesaid, has the legal title to said buildings, appurtenances and lots,” but contains no intimation that Swinerton had ever consented to the erection of the said buildings, or the furnishing of the said lumber by the claimants, or that any claim was made that the interest of Swinerton in the land was in any way liable, or claimed to be liable, for the amount due from Janes to the claimants, or any part thereof. The notice served at the commencement of the action in the County Court under section 6, and which, though also called a • notice, answers substantially to the ordinary summons and complaint in an action, also sets up the claim as against Janes, whom it styled “former vendee in possession,” with whom, it alleges, that an agreement for the erection of the buildings and appurtenances was made with Leonard Straw-bridge, “ who was contractor therefor.” This notice, or complaint, also contains a statement that the materials for which the claimants claim were furnished to and applied by said Henry Janes “ in erecting the three buildings now owned by you, said Swiner-ton, situate,” etc. This notice, or complaint, also wholly omits to aver any facts which tend to show that the interest of Swinerton in the land was in any way liable or subject to the lien of the plaintiffs by reason of his consent to the furnishing of the lumber, or for any other cause. The sixth section of the act requires that the notice, -by which the action is commenced, should contain “ a statement of the facts constituting the claim and the amount thereof, and any other facts material to the case.” We think the notice in the action commenced in court at all events, ought to contain some allegations, if not expressly asserting, certainly from which it is reasonably to be infei’red, that a lien is claimed against the interest of such as are intended to be made parties defendant in the action. No such allegation is- contained in either of the notices in this case, and nothing from which it can be inferred that the claimants seek to establish any lien against the vendor’s interest, which it is claimed was vested in Swinerton, or that the claimants claim that any such state of facts exist as would authorize the assertion of a lien against him. But, however this may be, it may be safely asserted that the legislature did not intend to authorize the creation of a lien as against the owner of the legal title to property, in regard to which there was an outstanding executory contract of sale with the vendee in, and entitled to the possession of the land, for materials and labor furnished to the vendee on a building contract made with him, or for his own benefit, unless the labor or supplies were furnished with the express consent of the owner of the fee of the land. This condition precedent is required in so many words by the statute, and is not so obscured by the verbiage of the act but that it is manifest that it was not intended to create, as against the general owner, a lien by which his property might be confiscated by the acts and indebtedness of another party, and wholly without the consent or interference of the general owner. In this case not only are the two notices referred to destitute of any allegations or suggestions of any facts whereby the claimants would be authorized to create a lien against the interest of the general owner, but it is nowhere asserted that the claimants make any claim against the interest of Swinerton. Moreover, the referee does not, in his report, find that Swinerton had any thing to do with the building contract, or the furnishing of the materials, or that the materials were furnished with the consent of Swinerton. We have carefully examined the evidence given before the referee and fail to find therein the slightest evidence that Swinerton consented to the erection of the buildings, or the furnishing of materials by the plaintiff, so that we have a judgment by which the property of Swinerton is ordered to be sold in consequence of the acts and defaults of another party, not his agent, and without any averment or proof by which, under the act, Swinerton’s property was in any manner pledged or liable to be sold. It would be very extraordinary if such a judgment could be upheld.

The order confirming the report and the order denying a new trial and the judgment in the proceeding are reversed, as against Swinerton, and a new trial ordered before another referee, costs to abide event as to said Jno. M. Swinerton, defendant.

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

Ordered accordingly.


text:
    ISABELLA MEAD, Respondent, v. ISAAC J. STRATTON and MARGARET M. STRATTON, Appellants.

      Civil damage act — chapter 646, Lems of 1873 — Recovery of damages against owner —permission or knowledge of owner must he proved, not presumed or inferred.

    A. recovery can only be bad against tbe owner of a building where intoxicating liquors are sold, under the clause of chapter 64.6, Laws of 1873, which provides that “ any person or persons owning or renting or permitting the occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein, shall be liable severally or jointly with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained, and for exemplary damages,” upon clear and satisfactory proof establishing the permission to occupy, with knowledge that intoxicating liquors are to be sold therein; and neither the permission or the knowledge can be presumed or inferred.
    Appeal from a judgment entered on the verdict of a jury in favor of the plaintiff and against the defendants for $1,151 damages and costs.
    This action was brought by the plaintiff, who was the wife of Charles Mead, against the defendants, to recover damages sustained by the plaintiff in her means of support by the death of said Charles Mead while intoxicated, and in consequence of such intoxication, produced by liquor sold to said Charles Mead by the defendant Isaac J. Stratton. The defendant Margaret M. Stratton is the wife of Isaac J. Stratton, and owned and lived with him upon the premises known as the Globe Hotel at Geneseo, premises upon which Isaac J. Stratton kept hotel and sold intoxicating liquors. There was no evidence given on the trial which proved or tended to prove that she had any knowledge that intoxicating liquors were sold on the premises or were to be sold when her husband took possession, except that she lived with him.
    It appeared that Charles Mead was an industrious laboring man, thirty-seven years of age, residing at York, about five miles from Geneseo; that after working all day on Saturday, August 8, 1874, he left home in the evening with one McGir and drove to Geneseo with horse and buggy; attended to some matters of business; drank intoxicating liquors several times at defendant’s hotel; at one time Stratton handed him the bottle; became beastly drunk, so that he was helped into his buggy upon their starting for home. In going-down the hill from Geneseo, Mead fell over on the dash-board twice, and was helped up on the seat by McGir, who was driving, and held there till they got down the hill. After getting part way across the flats on their way home, McGir had occasion to get out of the buggy, when he handed Mead the lines. The horse started along upon the road, and that was the last seen of him till he was found in front of his residence, hanging out of the buggy, with his head down against the spokes of the fore wheel, his left hand and arm on the ground, with his knee caught firmly under the foot rest of the buggy, killed by the speed of the horse and the action of the wheel.
    The plaintiff was entirely dependent upon her husband for her means of support, having no property, and he was industrious and a good provider for his family. They had three daughters, aged respectively thirteen, ten and four years, a boy eight years old, and another daughter bom after the father’s death and before the trial.

      S. Hubbard, for the appellants.

      J. B. Adams, for the respondent.
   Talcott, J.:

This is an action brought under the act of 1873, known as the civil damage act. The action is founded on the alleged injury to tbe means of support of the plaintiff, whose husband fell from his wagon and was tilled, as the plaintiff alleges, in consequence of intoxication, to which, intoxicating liquor sold to him by the defendant Isaac, is alleged to have contributed.

The defendant Margaret is included as a defendant in the action upon the allegation contained in the complaint, that she owns the “ Globe Hotel ” where the liquor is alleged to have been sold, and that she rents the same to the said Isaac J. Stratton, or permits the same to be occupied as such hotel,” and had knowledge that intoxicating liquors were, and had been, and were to be sold in the said building so owned by her and occupied by said Isaac J. Stratton. On the trial the only proof offered to sustain the action against Mrs. Stratton, consisted of admissions made by the counsel for the defendants, that the title of the hotel in question was vested in the said Margaret; that she was the wife of the defendant Isaac and lived with her husband at the hotel, together with evidence tending to show that liquor was usually sold at the bar of the hotel. The act makes “ any person owning or renting, or permitting the occupation of any building or premises and having knowledge that intoxicating liquors are to be sold therein,” liable, severally or jointly, with the person who sells, for all damages sustained and for exemplary damages. It cannot be supposed that the legislature intended to inflict the severe consequences prescribed by the act, unless the owner, in some manner, had authorized the occupation for such purpose, in the language of the act “ having knowledge that intoxicating liquors are to be sold therein.”

The permission to occupy, with knowledge that intoxicating liquors are to be sold therein constitutes the basis of the liability imposed by the act. Neither the permission nor the knowledge aré to be presumed or inferred, but should be established by clear and satisfactory proof. It may be doubtful whether, considering the relations between the parties, the occupation by the husband of the premises belonging to his wife where he and she reside, is such a permission to occupy as would make her liable under the statute. However that may be, it is clear that she must have knowledge that intoxicating liquors are to be sold therein.” Of this there was no proof, and it cannot be inferred from the mere fact that she lived at the hotel with her husband. She is not shown ever to have witnessed a sale, or ever to have been present in the bar-room where the sales were made, ever to have given any consent that such sales should be made, or to have been informed that they were in fact made, or of any circumstance tending to induce any such belief.

As to constitutionality of civil damage act, see Baker v. Pope (2 Hun, 656). That damages resulting from death of intoxicated person cannot he recovered under, see Hayes v. Phelan (4 Hun, 783); contra, JaeJcson v. Brookins (6 Hun, 530). That landlord is liable for liquor supplied by the bartender contrary to his instructions, Smith v. Meynolds {ante, p. 128). That joint action against landlord and tenant will lie, Bw'ikólf v. O’Reüty {ante, p. 16). As to exemplary damages, and distribution of damages among parties entitled to sue, see M’cmMin v. 8ehermerhorn.{ante, p. 112).— [Rep.

It may very well be supposed that though the wife of the defendant Isaac, and living with him in the hotel, her avocation occupied her in a different and perhaps distant part of the premises. The knowledge that her husband was keeping a hotel on the premises did not, necessarily, convey to her the information that he was engaged in selling intoxicating liquors there ; and the sale of such liquors may not only have been without her consent, but against her remonstrance. We do not think the evidence offered on the subject was sufficient to charge the defendant Margaret with the liability for the damages which resulted from the intoxication of the deceased, if any within the meaning of the statute.

This objection was distinctly taken by way of a motion for a dismissal of the complaint as to the defendant Margaret, which motion being denied, an exception was duly taken. We consider this ruling erroneous, and for that reason a new trial must be ordered.

The important position advanced by the counsel for the plaintiff as to the right to maintain the action at all under such circumstances, and which has been the occasion of such diverse judicial opinion, we do not touch, because the General Term in this department is understood to be committed on the subject, and in the hope that before this cause shall be tried again, we shall have some construction of the vague and uncertain statute on which the action is founded, and that it will receive an exposition at the hands of the court of last resort.

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

Present — MulliN, P. J., SMITH and Taloott, JJ.

New trial ordered, costs to abide the event.


text:
    TOWN OF CHAUTAUQUA, Respondent, v. GEORGE W. GIFFORD and WILLIAM P. WHITE, Appellants.

      Town moneys — Action to recover must be brought by supei'wsor — 11?. A, 356, § 1 — 2 B.S., 473, §§ 92, 93— Code, 113.
    The collector of a town deposited with hankers moneys collected by him for taxes. Subsequently the supervisor agreed with the hankers that they could retain the Aoneys until wanted. Afterward, on demand by him therefor, payment was refused.

      Meld, that an action to recover the same could not be maintained in the name of the town, hut must be brought by its supervisor.
    Motion for a new trial, founded upon exceptions taken to the decisions and rulings of the court upon a trial by jury,-directed to be heard in the first instance at the General Term.
    In the year 1873 William Gifford, as collector of the town of Chautauqua, collected and deposited with the defendants, who were bankers, the sum of $3,500, which had been raised to pay the interest to become due on its bonds in August following. The defendants received the money with full knowledge that the same was the money of said town raised by tax to pay the interest on its bonds, to become due and payable the following August. In March, 1873, and while said moneys so remained on deposit with the defendants, John Birdsall was first elected supervisor of said town and duly qualified as such. After his election the defendants requested Birdsall to leave said money on deposit with them, as aforesaid, and that they would allow interest, on the same until the same was required to meet the interest upon said bonds to become due in August, to which request Birdsall assented; and it was then agreed with him that defendants should so hold and retain said money. In July following, the said Birdsall, as supervisor of said town, demanded the mone_y aforesaid of the said defendants, for the purposes aforesaid. The defendants refused to pay the same, except the sum of $1,500, and suit was brought in the name of the town therefor.
    After the plaintiff rested his case, the counsel for the defendants moved to nonsuit tbe plaintiff, upon the ground that the plaintiff had proven a contract as the basis of its action, made between John Birdsall, its former supervisor, and the defendants, and that an action to enforce the same could only be brought by and in the name of the supervisor of the town; which motion was denied, and the defendants excepted. And the defendants further moved the court for a nonsuit, on the ground that the action was improperly brought and could not be maintained by the town in its corporate capacity, which motion the court denied, and the defendants excepted. The jury rendered their verdict for the plaintiff for the sum of $2,325.44, and thereupon the justice directed the said exceptions to be heard in the first instance at the General Term, and the judgment in the mean time to be suspended.

      A. A. Van Tusen, for the appellants.

      Morris dk Bussell, for the respondent.
   Taloott, J.:

This comes to this court on exception’s taken at the Chautauqua Circuit and directed to be heard at the General Term in the first instance. The action was brought to enforce a supposed liability of the defendants, who are bankers, for certain moneys claimed to have been received by the supervisor of the town from the collector of taxes belonging to the town and deposited' or left with the defendants in 1873.

The main question in the case is, whether the action can be maintained in the name of the town as plaintiff, or must be brought by the present supervisor. It was held in Hathaway as Supervisor of the Town of Solon v. The Town of Homer (5 Lans., 267), that where there is a liability to the town for moneys, it can only be enforced by an action in the name of the supervisor. This was held to- be the effect of certain provisions of the Revised Statutes, viz.: 1. Revised Statutes, 356, section 1, which provides that when any controversy or cause of action shall exist between towns of this State or between any town and an individual or corporation, proceedings shall be had as in suits of a similar kind between individuals; and section 2 of the same statute, which declares that in all such suits and proceedings the town shall sue or be sued by its name, except when town officers shall be authorized by law to sue in their name of office for the benefit of the town.

Also, 2 Revised Statutes, 473, sections 92 and 93, which authorize, among other things, actions to be brought in the names of town supervisors upon any contract, lawfully made with them or their predecessors, to enforce any liability or any duty enjoined by law to such officers or the body which they represent. The case of Hathaway v. The Town of Homer was reversed by the Commission of Appeals (54 N. Y., 655), but upon other points, and no intimation was made that the opinion of the Supreme Court was erroneous in holding that the action must be brought in the name of the supervisor of the town.

The same point was also held at the General Term of the third department in January, 1873, in the case of The Town of Lewis v. Marshall, where the opinion of the court was delivered by Justice Miller, who states that “the action was improperly brought in the name of the town of Lewis, and if maintainable at all, it must be in the name of the supervisor of the town, who alone is authorized to sue in such a case,” and this was the sole ground of the decision. On appeal to the Court of Appeals the decision of the General Term was affirmed, and the opinion of Miller, J., in the court below adopted. (56 N. Y., 663.) The doctrine of the case of The Town of Lewis v. Marshall was as to this point again asserted by the Court of Appeals, in The Town of Guilford v. Cooley (58 N. Y., 121). The cases above referred to were all actions brought since the Code of Procedure went into effect, and since the provision that every action must be brought in the name of the real party in interest, except as otherwise provided in section 113. Section 113 provides that a person expressly authorized by statute may sue without joining with him the person for whose benefit the suit is prosecuted. If the views herein expressed are correct, they are fatal to the maintenance of the action in its present form; so that it is not necessary to consider the point that the suit was brought without due authority, nor of any avail to order a new trial. The complaint should have been dismissed, and such order should be made by this court.

New trial denied, and complaint dismissed with costs.

Present — MulliN, P. J., SMITH and Taloott, JJ.

Complaint dismissed, with costs.


text:
    JAMES McDONNELL and RICHARD McDONNELL, Appellants, v. FANNY CULVER, Respondent.

      Pa/rty wall — right to use of— chose in action, when.

    B. erected on the land oí his míe a building- with his own money, and before the erection thereof agreed with 0. to place one-half of one of the walls thereof on her land, under an agreement that she should, when the wall was used by her, pay for so much thereof as she should use. The agreement was between B. and 0. personally, and not made by B. for or on behalf of his wife.

      Held, that such agreement was a mere chose in action, tl;e right to which was in B., and not having been transferred to his wife, could not be transferred by her to her grantees.
    Appeal from a judgment entered upon tbe report of a referee dismissing plaintiff’s complaint.
    In tbe year 18T0 Eunice Rowen, wife of Adna Eowen, was tbe owner of a vacant lot on tbe east side of Sbelby street, in the village of Medina. Tbe defendant was at tbe same time, and is now, tbe owner of a vacant lot adjoining the lot of said Eunice Bowen on the north. In the year 1810 said Adna Bowen erected a stone building on the lot owned by Eunice Bowen. Prior to tbe erection of such building, said Adna Bowen made a verbal agreement with defendant, by which he was to put one-half of the north wall of his building on defendant’s land, and whenever the wall was used by defendant she was to pay him for one-half the wall used by her. Adna Bowen erected the building and wall in question without any directions from his wife, and with his own money, and made the contract to build in his own name. He erected one-half of the north wall of his building on defendant’s land. Since the erection of a building by Adna Bowen a building has been erected on defendant’s land, and a portion of the wall erected by Bowen used in the construction thereof. On or about the 1st day of January, 1871, said Eunice Bowen sold and conveyed the land upon which said building was so erected by Adna Bowen, to the plaintiffs. Afterward, aud about the 1st day of July, 1873, the said Eunice Bowen executed and delivered to plaintiffs a paper, as follows:
    “ Eor value received of Richard and James McDonnell, I, Eunice Bowen, of Medina, Orleans county, State of New York, do hereby sell, assign, transfer and set over and convey to said Richard and James McDonnell and their assigns, the entire party wall now existing between a store constructed by me and the lot of Mrs. Fanny Culver, with the right and privilege to the said Richard and James McDonnell to demand, collect, receive, retain and enjoy to themselves and their heirs and assigns forever the pay for, or value of, the part or portion of wall which shall or may be used by said Mrs. Fanny Culver or her assigns in any building to be erected on the lot of said Mrs. Fanny Culver, or otherwise used, as the case may be. Said wall is in Medina, N. Y.
    “As witness my hand and seal, this 1st day of July, 1873.
    “EUNICE BOWEN.” [l. s.]
    Plaintiffs brought this action as assignees of Eunice Bowen.

      H. D. Tuelter, for the appellants.

      Henry A. Ghilcls, for the respondent.
   Taloott, J.:

This is an appeal from a judgment for the defendant, entered on the report of a referee. The action was brought to recover a portion of the cost of a party wall, in the village of Medina, upon the allegation that the plaintiff’s grantor erected the said party wall,one-half on her own land and one-half on the land of the defendant, and under the agreement that when the defendant used the said party wall she would pay for so much thereof as she should use.

The fact was, that the said party wall was built by Adna Bowen, the husband of the plaintiff’s grantor, and upon her land with his own money, and the agreement in reference to the party wall was, as found by the referee, between the said Adna Bowen and the defendant personally, and not an agreement made by or in behalf of Eunice Bowen, the owner of the land on which one-half the wall was built. Under these circumstances such an agreement has been held to be a mere personal covenant between the contracting parties. (Cole v. Hughes, 54 N. Y., 444.) The right under the contract constituted a mere chose in action, the right to which was in Adna Bowen and which had never been, in any manner, transferred to the plaintiifs in the action.

In the case (Fowler v. Seaman, 40 N. Y., 592) referred to by the counsel for the plaintiffs it had been found, as a question of fact, that the husband was the agent of the wife in erecting the building, although the minority of the court held that there was no evidence to sustain the finding. In this case the finding of fact is the other way.

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

Judgment affirmed, with costs.