author: Putman", J.

text:
    Albert A. Fletcher, Resp’t, v. Myron C. Barber et al., App’lts,

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    Mortgages—Foreclosure.
    A defendant in a foreclosure action, who sets up bv answer his prior right or claim to the premises and asks the court to determine as to his-title thereto, is concluded by the judgment and estopped thereby from afterwards asserting his title.
    Appeal from a judgment in favor of plaintiff on a trial by the court without a jury.

      John I. Gilbert, for app’lts; Cantwell & Cantwell, for resp’t.
   Putman", J.

It is doubtful whether, under any authroized construction of the will of William Scranton, deceased, it could be held to have conveyed to Myron Barber, through whom defendants claim title, more than 10 acres of the land, to recover which this action is brought. The description in the devise is indefinite, only extending part way around the lot. Mo boundaries are given on the north or east side. Mor is there any general or other description of the land sought to be devised, or any statements contained in the will, that enables us to determine the intent of the testator. It is true that if there were any particulars or statements contained in the will, showing the lot of land intended to be devised, the addition of a circumstance false or mistaken would not frustrate what appeared to be the intent of the deceased. Lush v. Druse, 4 Wend. 314, 318, 319. But it is said in Thayer v. Finton, 108 N. Y. 394, 397; 13 St. Rep. 778, in regard to-deeds, that: “While it is the settled rule that such conveyances shall be construed so as to carry into effect the intent of the parties, so for as such intent can be collected from the whole instrument, it is equally well settled that nothing will pass by a deed, except what is described in it, whatever the intention of the parties may have been. Coleman v. Manhattan Beach Co., 94 N. Y. 229.”

In that case it seems difficult to construe the description contained in the devise in question in any way, so as to make it cover-the land, to recover which this action is brought. We should, therefore, be incline to concur in the view taken by the learned counsel for the appellants, were it not for the proceedings and judgment in a prior action brought by the plaintiff against Susan Barber, defendant’s ancestor. That action wras brought to foreclose a mortgage executed by William Barber to plaintiff on the-36 acres which are the subject of this action, and other premises, against Willian Barber and Susan Barber; the complaint alleging that Susan Barber had, or claimed to have, some interest in or lien upon the said mortgaged premises, or some part thereof, which interest or lien, if any, had accured subsequently to that of said mortgagee. In the complaint all the mortgaged premises, including the 36 acres, were properly described. The complaint alleged that about 36 acres of the whole lot therein described was subject to the life interest of Susan Barber. Susan Barber, in her answer," made, among others, the following allegations: “That said William Scranton, by his last will and testament, did give, devise, and bequeath unto this defendant the use and occupation of about forty (40) acres of the premises mentioned and. described in the complaint, to have and to hold the same during the period of her natural life, and at her decease unto Myron Barber and his heirs, forever; * * * that on or about the 31st day pf August, 1863, this defendant purchased from said Myron Barber all the right, title, and interest of the said Myron in and to the premises devised to him by said William Scranton, deceased, as aforesaid, and paid to him therefor the sum of five hundred dollars ; that on said 31st of August, 1863, said Myron Barber and Julia Barber, his wife, at the instance and request of this defendant, executed a deed of conveyance of said premises to the defendant William W. Barber; that said premises were conveyed to said William W. Barber without any consideration having been received by the defendant for the same, and were so conveyed, not for the purpose of vesting the title thereof in said William W. Barber, but for the purpose and with the understanding that he should have and hold the same only until such time as defendant should sell said premises, or demand a reconveyance thereto to her; and defendant has, at all times since the date aforesaid, used and occupied said premises, and is now in possession thereof.”

The judgment in said former action contained a provision that 36 acres of the mortgaged premises were subject to the life estate of said Susan Barber, and the sheriff’s deed to plaintiff, who was the purchaser at the mortgage sale, contained the same provision. The will of William Scranton, deceased, was admitted to probate on the 18th of June, 1862, and this action was commenced on June 2, 1893. It will be seem, from the above-quoted extract from the answer of Susan Barber in the former foreclosure action brought by the plaintiff, that she expressly admitted that under the will of William Scranton, deceased, Myron Barber took title to the premises in dispute subject to her life interest therein, and that she purchased his interest for $500 ; and he afterwards, at her request, conveyed the premises to William Barber (who after-wards executed the mortgage to plaintiff, to foreclose which the action was brought), under an agreement that he should hold the title to the same until such time as defendant should sell the premises or demand a reconveyance, and that she has continued in the occupation thereof since such conveyance. In her answer she asks for the following relief: “That the rights, interests, and equities of the defendant in and to the premises described in the complaint may be adjudged and determined.” The court, as it could properly do, in pursuance of the prayer contained in the answer of Susan Barber, found that she was entitled to a life interest in 36 acres. It will be seen, therefore, that Susan Barber, in her answer in the foreclosure action, admitted the title of Myron Barber to the premises in dispute, and the conveyance thereof by the latter to the mortgagor William Barber, and, claiming some equitable interest in the premises, asked that her rights and-interests therein be determined by the court.

It is true that ordinarily, where, in an action for the foreclosure of a mortgage, a person whose title to the premises is superior and prior to that of the mortgagor is made a defendant, and it is alleged in the complaint that he has some claim to or interest in the mortgaged premises, which, if any, accrued subsequently to the execution of the mortgage, such person’s rights will not be affected by the foreclosure judgment, now will he be estopped thereby from .afterwards asserting his title to the premises in question. Payn v. Grant, 23 Hun, 134; Lee v. Parker, 43 Barb. 611. But it is otherwise if the defendant in a foreclosure action, so made a party, sets up by answer his prior right or claim to the premises, and, stating the facts in regard to his interest therein, asks the court to determine as to his title thereto. In Goebel v. Iffla, 111 N. Y. 170-177; 19 St. Rep. 105, it was said: And, moreover, that if the facts upon which the plaintiff relies to defeat that prior title are stated, the defendant whose title is thus assailed may demur to the complaint upon the ground that the plaintiff has no right to bring him into court upon the foreclosure to try the validity of his title; yet, if the party so made a defendant should, instead of demurring, answer, and litigate the question, and then judgment should go against him, no case decides that the judgment should not conclude him in a collateral action.”

Susan Barber, although not compelled to, voluntarily elected, in. her answer, to state the rights and interests of herself, Myron Barber and William Barber, to the disputed premises, and claimed an equitable interest therein, asking the court to determine her rights in the premises. She voluntarily raised an issue as to her rights in the premises, and submitted such issue to the determination of the court. Wo think, therefore, that the judgment entered in the action estopped the said Susan, and hence the defendants who claim the land under her, from asserting any other title to said premises than that determined by such judgment. We cannot regret reaching this conclusion. Susan Barber occupied the disputed tract for thirty years under the will of William Scranton, deceased. She apparently assumed that the will conveyed the land in dispute to her for life, with a remainder to Myron Barber, and accepted and had the benefit of the provision in her favor for the said period of thirty years. It seems, therefore, to be just that her descendants' should not succeed in their contention in this action.

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    William H. Magilton, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      {Supreme Court, General Term, Third Department,

      Mled December 4, 1894.)

    Negligence—Injuries to animals.
    A railroad company is not liable for an injury to a horse trespassing upon its track, unless the evidence establishes the fact that it was killed by a reckless or willful act of the company’s servants.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Ashbell Green (F. Tj. Westbrook, of counsel), for app’lt; J. A. Griswold, for resp’t.
   Putnam, J.

Plaintiff recovered a judgment for the sum of $200, the value of a horse which strayed upon defendant’s tracks and was killed by defendant’s cars. The complaint alleged negligence on the part of defendant — First, in not providing and maintaining proper means of fastening the gate at plaintiff’s farm crossing, whereby the gate became open, and the plaintiff’s horses strayed on the railroad tracks, and ■ the animal in question was killed by a train of cars running on defendant’s road ; second, in the reckless and careless manner in which defendant’s servants ran'said train at the time the horse was killed. The trial judge-held that there was not enough evidence to show negligence on the part of defendant in neglecting to provide and maintain fastening or means to secure the gate in question to submit to the jury; but did submit the question as to the negligence of defendant’s servants in managing the train by which plaintiff’s horse was killed. Hence, the only question to be considered is, did the evidence establish such negligence or misconduct on the part of defendant’s engineer in charge of the engine that ran over plaintiff’s horse as to render defendant liable for its value ? As, under the ruling of the court below, the evidence did not show any negligence on the part of the defendant in maintaining the fastenings of the gate at the place where the horse came on the track, and as it was not shown that the said gate became open on account of any fault on the part of the defendant or its servants, the horse, to recover the value of which the action was brought, must be deemed as trespassing upon defendant’s land at the time he was killed. Munger v. Tonawanda R. R. Co., 4 N. Y. 349; 5 Denio, 255; Boyle v. N. Y., L. E. & W. R. R. Co., 39 Hun, 171-173; Id., 115 N. Y. 636; 23 St. Rep. 731. Hence, under the above authorities the defendant was not liable for the injury to the horse unless the evidence established the fact that the animal was killed by a reckless- or willful act of defendant’s servants. A careful examination of the evidence shows that it fails to establish such a state of facts as to render the defendant liable under doctrines-established by above-authorities. At the place where the accident occurred there-was a down grade. There was evidence showing that the train was moving rapidly, but not that it moved more rapidly than such trains usually do at that place. It appears that the engineer repeatedly blew the alarm whistle after he saw the horses on the track, and, although he' saw the animals for some distance before the horse was struck, it was shown that at the time of the accident one of defendant's employes was endeavoring to drive them from the track, and all the animals did leave the track but the one killed. While possibly the evidence established some negligence on the part of defendant’s engineer in failing to “ slow up ” the train, it does not show any reckless or willful act on his part which caused the ¿death of the horse. The facts in the case of Boyle v. N. Y., L. E. & W. R. R. Co., supra, are very similar to those in this ease. There, as here, the horses came on the railroad track through a fence the defendant was bound to maintain, in consequence of the removal of a panel in the fence by some person notin the employment of the defendant. The horses ran on the track in front of the engine which caused the injury for half a mile before they were killed, the speed of the train not being diminished. It was held by the general term of the fifth district that the defendant was not bound to reduce the speed of the train. The horses were trespassing on the land of the railroad company, and it could only be made liable by showing that the engineer acted wantonly and maliciously. That under the facts shown, the trial court should have refused to submit that question to the jury. The court of appeals in affirming the judgment in the case, said: “ There was no evidence that plaintiff’s horses were killed by the reckless, wanton, or malicious conduct of defendant’s engineer, and hence, there was no basis for recovery.”' Under the doctrine established in Boyle v. N. Y., L. E. & W. R. R. Co., supra, it is impossible to sustain the judgment in this case. Under that decision we must hold that plaintiff’s horses at the time of the accident were trespassing upon defendant’s land, and the latter was not bound to lessen the speed of its train. It follows that its failure to do so cannot be deemed a reckless, wanton, or willful act. There being in the case no other evidence of negligence on the part of defendant except its failure to slow up its train, it follows that the case should not have been submitted to the jury, but that the trial court should have nonsuited the plaintiff, or directed a verdict in favor of the defendant. The judgment should be reversed, and a new trial granted, costs to abide the event.

All concur.


author: Per Curiam.

text:
    The People ex rel. Union Pacific Tea Company, App’lt, v. James A. Roberts, as Comptroller, etc., Resp’t.

      (Supreme Court, Ceneral Term, Third Depwrtment;

      Filed December 4, 1894.)

    1. Taxes—Corporations—Exemptions.
    A corporation, engaged in mixing teas and roasting, mixing and grinding coffee, is not a manufacturing corporation, within the meaning of chap. 542 of 1880.
    2. Same—Comptroller’s decision.
    The determination of the comptroller as to the amount of capital stock, employed by a foreign corporation in this state, will not be overruled, unless it is clearly shown to be wrong.
    Application for writ of certiorari to review tax.
    Relator deals in teas, coffees, spices, and baking powder, and claims exemption from taxation on the ground that it is a manufacturing corporation. Relator’s process of manufacture was described by one of its officers as follows: “We take tea in the original state, and expend labor upon it, by which we produce a mixture known as a special manufacture. We mix different kinds of tea together, and that makes a combination tea, and we ship it in that form. That is all we do, so far as manufacture is concerned. Forty-five per cent, of the tea we sell is treated in that way, and the remaining fifty-five per cent, we sell straight, just as we purchase it. We manufacture coffee. We buy in the raw state, roast it, bag part of it, and another part of it is ground and mixed and sold in that condition. Rmety-seven per cent, of the coffee we handle is treated in that way, and three per cent, sold straight. The coffee is purchased in New York, and a great portion of it is shipped in bags direct to our store, and put in bins. To illustrate: We take bags of coffee, roast it, and ship it to our store in Albany. In some instances we mix different kinds of coffee together, and that makes a combination coffee. That is all. The spices we buy boxed, ard ship to our stores. Baking power we take'in cans, box it, and ship it No change is made in it, or in the spices or condensed milk.”

      Charles H. Luscomb, for relator; Theodore F. Hancock, Atty. Gen. {John W. Hogan, of counsel)-, for resp’t.
   Per Curiam.

We think that relator cannot be deemed either a manufacturing corporation or one wholly engaged in carrying on manufacture within this state, and hence that it was liable to taxation under the provisions of chapter 542 of the Laws of 1880 and acts amendatory thereof. The determination of the comptroller as to the amount of capital stock employed by relator in this state should not be overruled, unless on the motion for revision it was clearly shown to be wrong. People ex rel. Am. C. & D. Co. v. Wemple, 129 N. Y. 558-566; 42 St. Rep. 400. After a careful examination of the proofs presented on the motion for a revision, we are unable to say that the reduction of the valuation of relator’s property within the state then made was not all it was entitled to. We think the estimate then made of the value of relator’s property in this state was not shown to be erroneous. An opinion does not seem to be called for in the case.

The determination of the comptroller should be affirmed, with costs.

All concur.


text:
    The People ex rel. American Axe and Tool Company, App’lt, v. James A. Roberts, as Comptroller, etc., Resp’t.

      (Supreme Court, General Term,, Third Department,

      Filed December 4, 1894.)

    1. Taxes—Corporation—Comptroller’s decision.
    The determination of the comptroller in appraising the value of the capital stock of a foreign corporation, employed in this state, will not be disturbed, unless clearly shown to be erroneous.
    3. Same.
    The burden of establishing such error is upon the relator.
    Application for a writ of certiorari to review a tax assessment.

      Frederick Q. Dow, for relator; Theodore F. Hancock, Atty.-Gen. {John W. Hogan, of counsel), for resp’t.
   Putnam, J.

Relator, a foreign corporation, with an authorized capital stock of $5,000,000, of which $3,872,500 had been issued, on November 14, 1893, filed a report and appraisement with the comptroller under the provisions of chapter 542 of the Laws of 1880 and the several acts amendatory thereof, wherein it reported the amount of its capital stock employed in this state during the year in question at the sum of $1,284,058.34, and the value thereof, as appraised by the officers of the company, at the sum of twenty-five dollars per share, thus making the value of that portion of its capital employed in the state $321,014.58. The comptroller was dissatisfied with the estimate and appraisal made by relator, and determined the amount of its capital employed in this state to be $1,284,058.34, upon which amount he decided relator was liable to pay a tax. On the rehearing before the comptroller, on the application of the relator, he refused to revise the tax determined as aforesaid. It appears by the statement made and filed with the comptoller on the 14th day of November, 1893, that 38,725 shares of the relator, of the par value of $100 per share, and on which $100 per share had been paid into the treasury of the company, had been issued. Hence the amount of capital possessed by the corporation was $3,872,500, on which a dividend of one per cent, had been paid on April 20, 1893. It also appeared that during the year in question none of the stock had been sold; that the capital stock employed in the state of New York was $1,284,058.34. Accompanying said report was an appraisement thereof, made by the treasurer and secretary of said company, wherein they estimated its value at twenty-five dollars per share. In People ex rel. Singer Mfg. Co. v. Wemple, 78 Hun, 63-66; 60 St. Rep. 662, we considered the meaning of the words “ capital stock,” as used in chapter 542 of the Laws of 1880 and acts amendatory thereof, and reached the conclusion that those words referred to the capital authorized by the charter of the company and paid in or contributed by the stockholders. .For instance, in the case of relator, $3,872,500 has been paid in by the stockholders. That sum was the capital stock of the corporation, the company owning that fund for the purpose of carrying on its business. That stock was represented by a certain number of shares, owned by the members of the corporation, the stockholders. We think our view of the meaning of the words “capital stock ” is clearly sustained by the authorities cited in People ex rel. Singer Mfg. Co. v. Wemple, 78 Hun, at pages 66, 67; 60 St. Rep. 662. As said by Justice Earl in Williams v. W. U. Telegraph Co., 93 N. Y. 162-188: “The capital stock in this section does not mean share stock, but it means the property of the corporation, contributed by its stockholders, or otherwise obtained by it, to the extent required by its charter.”

When relator filed its report and appraisement on November 14, 1893, the comptroller was not concluded by the valuation made by its officers of its capital stock employed within the state. Section 11, chap. 151, of the Laws of 1882, as amended by chapter 501 of the Laws of 1885, provides that: “Whenever the comptroller is dissatisfied with such report or certificate of estimate and appraisal, as the case may be, of any corporation, joint-stock company or association whose capital is only partially employed within this state, he is authorized and empowered to ascertain, fix and determine the amount of capital employed within this state, and to settle an account for the taxes and penalties due the state thereon.”

The relator claimed the amount of its capital stock employed within this state was $321,014.58. The comptroller estimated it at $1,284,058.34. We are unable to say that the comptroller erred in this matter. The relator reported that $,284,058.34 of said stock was employed in the state,—doubtless meaning at the par value thereof, and the appraisal of its officers fixed the value of said" stock at one-quarter of that sum. It thus appeared to the comptroller, from the statement and appraisement of relator filed in his office, on the one hand, that $1,284,058.34 of its capital stock was employed in the state, on account of which an equal sum had been paid into the treasury of the corporation. On the other hand was the appraisement of the secretary and treasurer estimating said stock at one-quarter of the par value. There had been no sale of the stock. The comptroller might properly hold, in the absence of any satisfactory explanation, that the value of the capital stock, the property of relator, was equal to the sum paid into the treasury of the corporation. On that assumption he could well doubt the truth of the report of the officers of relator in estimating that its stock had so shrunken as to be only worth one-quarter of its par value. Again, by said report the value of relator’s real estate in New York was placed at the sum of $446,-000, while it claimed the value of its capital stock in the state was only $321,014.58. As it was not suggested that relator possessed any surplus capital, the amount invested by it in the state of New York must necessarily be part of its capital stock. The comptroller, therefore, was justified in doubting the reliability of the appraisement of the relator’s officers, which made its capital stock employed in the state less than the conceded value of its real estate therein.

We think, under the circumstances, under the report and appraisement filed, and in the absence of any explanation showing how $1,284,058.34, paid into the treasury of the corporation as capital stock, could in a short time diminish in value to one-quarter of said sum, the comptroller could properly determine that the value of the defendant’s stock in the state was what had been paid into the corporation therefor. However that may be, we have seen that the above-quoted provision of the statute empowered the comptroller to make an appraisal of the value of the capital stock of the corporation. He was not bound to follow the report of its officers. As held in People ex rel. Roeblings’ Sons Co. v. Wemple, 138 N. Y. 582; 53 St. Rep. 297: ‘;He is made by the statute an assessor himself, and he had a right to estimate its value according to such information as he could obtain, or upon his own judgment.” And it has been determined that a decision of the comptroller in such a case, unless clearly shown to be erroneous, will not be disturbed. It is for the relator, on the application for a rehearing, to establish the fact that the conclusion of the comptroller in fixing the value of its property within the state was erroneous. People ex rel. Am. C. & D. Co. v. Wemple, 129 N. Y. 558-565; 42 St. Rep. 400; People ex rel. Postal Tel. Co. v. Campbell, 70 Hun, 507; 53 St. Rep. 790. But the return of the comptroller shows that on the application for a rehearing and revision no evidence was produced showing that the tax levied and assessed by the comptroller was illegally imposed, and we are unable to find any evidence in the papers showing error on the part of the comptroller in the appraisement of the relator’s, property in this state produced on the application for revision. On that application we infer from the papers that relator relied on the original report and appraisement of November 14, 1893, as evidence of error in the conclusion reached by the comptroller. For reasons above suggested, we do not think the comptroller was bound by the estimate of the secretary and treasurer of the company. The statute made him an appraiser, and his determination, was conclusive, unless on application for revision it was shown to be erroneous. Certainly such report and appraisement did not make it clearly appear, as held necessary in People v. Wemple, supra, on an application for a revision, that the conclusion reached by the comptroller was erroneous. It is not doubtful what course should be adopted by the relator on the application for a rehearing. It should have made an inventory of all the real and personal property and money, if any, owned by it within this state, and offered satisfactory proof that it owned no property therein except as set out in the inventory. Whatever property, real or personal, relator had within the state, was presumptively a part of its capital stock, and liable to taxation. The relator, on the motion for revision, seems to have failed to offer any evidence tending to show that the comptroller had erred in his original appraisement. If there was any error on the part of the latter, it was easily within the power of the relator to show it by proving just what property it had in the state. We think the decision of the comptroller should be affirmed, with costs.

All concur.


text:
    The People ex rel. Stanley H. Bevins, Resp’t, v. The Board of Supervisors of Warren County, App’lt..

      (Supreme'Court, General Term, Third Department,

      Tiled December 4, 1894.)

    1. Towns—Liability—Power of commissioners.
    No power, either express or implied, is conferred upon a highway commissioner to bind the town by the employment of an attorney in a proceedings to lay out a highway.
    2. Same.
    Section 92, chap. 568 of 1890, does not render the town liable for charges of such attorney.
    Application for a mandamus to compel the board of supervisors to audit relator’s bill against the county.

      S. & L. M. Brown, for app’lt; Stanley H. Bevins, for resp’t.
   Putnam, J.

We are unable to find any statutory provision which conferred upon the highway commissioner of the town of Chester power to employ an attorney and counsel on its credit in a proceeding to lay out a road under the provisions of article.4, chap. 568, Laws 1890. Certainly no such power is expressly given, and. we think none can be implied. A highway commissioner cannot bind the town except under a power expressly conferred by statute. In People ex rel. Everett v. Supervisors of Ulster Co.,. 93 N. Y. 397-401, the court says: “The relations existing between a town and its commissioners of highways were quite fully and explicitly defined in the opinion of Judge Andrews in People ex rel Van Keuren v. Town Auditors of Esopus, 74 N. Y. 810. It was there held that such commissioners were in no sense the agents of the town in the performance of their official duties. While acting in that capacity, under the powers conferred upon them by statute, they proceed independently of any control or direction on the part of the town, and owe it no duty or obligation, except to disburse the moneys with which they were supplied by the town in good faith, and according to their best judgment. They have no general power or authority to bind the town by their contracts or undertakings, and are individually responsible alone to those with whom they contract, if any responsibility is thereby created."

Hence the employment of the relator by the highway commissioner of the town of Chester may have created a legal claim against him, but none against the town.

It is claimed, however, by the learned counsel for the relator that sections 92, 93, in article 4, supra, made it obligatory on the board of supervisors to audit and allow the claim of the relator for legal services performed by him on the retainer of the highway commissioner. Section 92 provides as follows: “In all cases of assessments for damages by commissioners appointed by the court, the costs thereof shall be paid by the town except when reassessment of damages shall be had on the application of the party' for whom the damages were assessed, and such damages shall not be increased on such reassessment, the costs shall be paid by the party applying for the reassessment.”

Perhaps the only answer that need be given to the above position of the respondent is that the words “the costs thereof ”•—that is, the costs of the assessment of damages—do not, and cannot by any fair construction of the statute be deemed to, apply, to a bill for legal services rendered by any attorney employed by the highway commissioner. When the act in question was passed the town was not in any way liable for attorneys’ services contracted by a highway commissioner in the matter of laying out a road. The claim for such services was one against the officer. It cannot be maintained that the legislature intended by the word “costs,” in § 92, supra, to embrace claims for attorneys’ fees for which the highway commissioner was responsible, and the town was not, when the act was passed. Had it been intended by the act to create a new liability on the part of towns, and to make them reponsible for bills contracted by highway commissioners, the statute would have indicated such intention by some provision therein.

Section 92, supra, provides that commissioners appointed under article 4 shall be entitled to six dollars per day and expenses. Section 152 of the act provides that: “Costs of a motion to confirm, vacate or modify the report of commissioners appointed by the court to lay out, alter or discontinue a highway" may be allowed in the discretion of the court not exceeding fifty dollars. Costs of any other motion in a proceeding in a court of record, authorized by this chapter, may be allowed in the discretion of the court, not exceeding ten dollars. ”

We see no reason to doubt that ‘'costs,” referred to in § 92, aré costs which may be allowed to one of the parties under the provision of § 152. Probably it should also be deemed to apply to the fees and expenses of the commissioners. The word “costs,” as used in § 92, however, does not in terms apply to a personal debt incurred by the highway commissioner nor can it be made to so apply by any fair construction of the statute. It would be unfortunate for a town if the highway commissioner could contract bills on its credit This case is an illustration of what the result would be if the highway commissioner possessed that power. The claim of the relator is $416, and it appears by the papers before us that there is outstanding another bill of another attorney for counsel fees in the same matter for $206; in all $352. Article 4, supra, does not authorize an application to lay out a highway to be made by a highway commissioner as such. The statute provides that he may appear after the appointment of commissioners, and doubtless could at the time oppose or aid in the laying out of the road, the same as the applicant for the highway and others .interested might. At that time the highway commissioners probably could, if proper and necessary, employ counsel to aid him in the matter of laying out the road and assessing damages. But the counsel would be employed by him, and not by the town, and such counsel must collect his bill for services from the highway commissioner. The latter afterwards could present a claim for the amount so paid by him to the town as a necessary expense incurred by him in the discharge of the duties of his office, and, if the bill were fair, and properly incurred, the town auditors probably would allow it.

This view we have thus taken of the case will render it unnecessary to consider the position taken by appellant that there was in fact no assessment of damages to this case, and hence, under the provisions of §§ 92, 93, supra, the supervisors had no duty to perform in relation to the alleged claim of relator. The clerk of the board of supervisors made an affidavit that the bill of relator, when presented, was considered and examined on its merits, and the board of supervisors decided that the claim was not a valid one against the town ; that the latter was not legally liable to pay it, or any part thereof; and therefore disallowed the bill. This affidavit was not controverted by relator, and hence must be taken as true. People ex rel. Lawrence v. Board of Supervisors, 73 N. Y. 173. The supervisors therefore rejected the bill because it was not a valid claim against the town. If this decision of the supervisors was erroneous, appellant urges that relator’s remedy was by certiorari, and not mandamus. Grover, J., in Howland v. Eldredge, 43 N. Y. 457-461, says: “ This is the universal rule in respect to all subordinate courts and tribunals clothed with the exercise of judgment or discretion. They may by mandamus be compelled to proceed and determine the matter, but cannot be compelled to decide in any particular way. If they could, it would no longer be their judgment or discretion, but that of the court awarding the writ.”

The relator’s bill was presented to the board of supervisors. "They considered and acted upon it. Their action was judicial. They decided that the bill was not a legal or proper claim against the town. If they erred, there are authorities holding that the proper way to correct the error was by certiorari. People ex rel. Myers v. Barnes, 44 Hun, 574; 8 St. Rep. 531; affirmed, 114 N. Y. 317; 22 St. Rep. 164, and 23 Id. 795; People ex rel. Osborn v. Gilon, 9 N. Y. Supp. 563; People ex rel. Woodward v. Rosendale, 76 Hun, 103; 57 St. Rep. 447. Having concluded, however, for the reasons above stated, that the order from which the appeal is taken "cannot be sustained, we do not pass upon this position of appellant.

Order reversed, and motion denied, with $50 costs and disbursements.

All concur.


author: Herrick, J.

text:
    Heywood Boot and Shoe Company, Resp’t, v. Murray N. Ralph, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    Tendee—Payment into court.
    Payment of money into court on the day of trial is too late to keep a tender good.
    Appeal from a judgment in favor of plaintiff.

      Lawrence Bussell, for app’lt; F. N. Oleaveland (Ledyard P. Male, of counsel), for resp’t.
   Herrick, J.

The judgment in this case should be affirmed. The defendant did not keep his tender good, by paying the amount thereof into court at the commencement of this action, and alleging that fact in the answer. It was not paid into cc-urt until the day of trial,—too late to stop the costs of the action, and too late to stop the running of interest, the purposes for which it is required the tender should be made, and kept good by a deposit in court. Becker v. Boon, 61 N. Y. 317; Halpin v. Phenix Ins. Co., 118 id. 165; 28 St. Rep. 788.

The judgment should be affirmed, with costs.

All concur.


text:
    In the Matter of the Estate of Frederick D. Hodgman, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    Judgment and decree—Vacation.
    The right to set aside a surrogate’s decree under subd. 6, § 2481 ol the Code, is not affected by the fact that it has been affirmed on appeal, where the applicants were not parties to such appeal.

      Appeal from an order denying an application to open a decree.

      Gharles 8.- Eooie, for app’lts; Edgar Hull (G. II. Siurgess, of counsel), for resp’t Wing; Young & Kelbgg, for resp’t Hodgman.
   Herrick, J.

This is an appeal from an order entered in the surrogate’s court of Washington county, dismissing, the petition of Charles E. Hodgman and fourteen others, to open, vacate and set aside the decree entered in the above entitled proceedings, and to open the defaults of each of said petitioners in such proceedings, and to be permitted to file objections to the accounts therein. The decree that it is asked to open has already been before this court upon an appeal by Mary E. Hodgman, as executrix and as the widow and legatee of the decedent. 69 Hun, 484; 52 St. Rep. 727; Id., 140 N. Y. 421; 55 St. Rep. 800: The court of appeals expressed its views very strongly as to the condition in which the accounts appeared, and as to the condition of the estate ; but, inasmuch as the matters therein referred to did not affect the then appellant, neither the general term nor the court of appeals felt it to be within their power to review the proceedings any further than they affected the interests of the appellant. The other legatees, heirs and next of kin not having appealed, and thereby having apparently consented to the settlement of accounts and the entry of the decree, the court was powerless to do anything more than to give a brief expression of its views of the matter as it then appeared.

The petition sets forth that the petitioners are next of kin, heirs and residuary legatees of and under the last will and testament of Frederick D. Hodgman. It is alleged, as to some of them, that they were not present at the accounting, and were not represented by counsel thereat, because some of them were advised that such representation was unnecessary, and • that the surrogate would protect their interests. As to others, they allege in their petition that they had been informed by one of the executors, or by the representative of one of the executors, that the estate was settled, and that the amount theretofore paid to each of them constituted all that was or would be due to them, and for that reason, in addition to supposing that their interests, if they had any, would be protected by the court, they had not appeared, and had no one to represent them; that, as to four of them, an. appearance was entered on their behalf, but that the person who made such appearance was not present at the latter ‘hearings in the proceedings, and was not present at the settlement, or alleged settlement, of the accounts. They further allege that no copy of the decree entered was ever served upon them. Several other petitioners, who, it is claimed on the accounting, had assigned all their interests in the estate, allege in their petition that they never knew until about two weeks before the filing of their petition herein that it was claimed at said accounting that they had assigned their interests in the estate, and assert that such instruments purporting to be assignments were procured from them by misrepresentation, and that they supposed that they were merely signing receipts for money actually received by them, and not signing assignments of all their rights and interests in the estate. Two of the petitioners assert that they could not read or write, and did not know what they were signing, except as it was represented to them. Various charges and allegations are made by different ones of the petitioners as to the manner in which their signatures were obtained to papers that it is now alleged by the executors of the estate were assignments of their respective interests therein. That as to one of the petitioners, who files a separate petition, she alleges that it is only within the last few weeks before the filing of the petition that she was informed of the contents of the decree, and that the same decree awarded a distribution of the said estate to the estate of Philander 0. Hitchcock, as executor, and away from the residuary legatees, heirs, and next of kin of Frederick D. Hodgman, and that she was only then informed that the attorney who represented her filed no objections to the accounts of the executors, or either of them. And she alleges that as to the paper purporting to be an -assignment executed by her, of all her interest in the estate, her signature thereto was obtained by misrepresentation, and that she supposed it to be merely a receipt for the account of money actually received by her, and not an assignment of all her interest in such estate. The petitioners accompany their petition with a list of objections that they propose to file against the accounts of the executors, in the event of their petition being granted.

The motion is made under subdivision 6 of § 2481 of the Code of Civil Procedure. That empowers a surrogate, in or out of court, “to open, vacate, modify or set aside, or to enter as of a former time, a decree or order of his court; or to grant a new trial, or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers conferred by this subdivision, must be exercised only in a like case and in the ■same manner, as a court of record, and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the general term of the supreme court has the same power as the surrogate; and his determination must be reviewed, as if an original application was made to that term.” It will be seen by the petition that a number of the petitioners assert that they did not attend the proceedings upon the accounting for the reason that they were assured that their appearance was unnecessary, that the estate was settled, and that the amount they had already received was all that was due them; that, as to others, the attorneys who represented them did not attend upon the final hearings, and filed no objections to the executors’ accounts. They also assert that they did not know of the entry of the decree until a comparatively short time before the filing of their petition. It will be observed that the Code empowers the surrogate to open a decree “for fraud, newly discovered evidence, clerical error, or other sufficient cause.” Under settled rules of interpretation, the words, “or other sufficient cause,” must be interpreted to mean cause of like nature to these specifically mentioned. In re Tilden, 98 N. Y. 434. Matters, then, in the nature of a fraud, although not actually, perhaps, constituting a fraud in law, or which would be the basis <sf an action for fraud, yet matters of that character • which have misled the petitioners, and by which they have been prejudiced, may be sufficient ground to authorize the surrogate, or this court in reviewing the action of the surrogate, to act under this section. The learned judge who wrote the opinion in the court of appeals in the matter of this estate, in determining that many of the objections raised to the decree did not affect the appellant, and therefore could not be passed upon in that appeal, used the following language ; “If I could see in the result the faintest trace of danger to her, I should be likely to advise a reversal of this decree, as manifestly wrong in many important respects. In that event we should seek to ascertain how an estate of about one hundred and twenty-eight thousand dollars, and which owed at its owner’s death, so far as I can see, not to exceed fifteen or twenty thousand dollars, has, after paying not more than eighty thousand dollars of legacies, become totally bankrupt, and indebted to one of the executors for about ten thousand dollars, where there are no assets to pay. We should inquire, also,'why Hitchcock, after being once credited with the Cobb trust fund of ten thousand dollars, as delivered by him to one or more of his associates, and which was paid to the legatees by Mrs. Yates, and for which her account is credited, is a second time credited with that sum, and permitted to swell his account to that extent against the estate. We should seek to know no what principle payments made to the residuary legatees were credited to the executors, when the result reached shows that no residue remained. And we should consider whether a confused mass of items, made up in total disregard of the rules for stating such accounts, should be allowed to serve as the basis for deliberate judicial action.”

A decree which calls for such vigorous language from the court of last resort should not, in my judgment, be permitted to stand, without further investigation, unless there is some decisive rule of the court to prevent it. This statement of the court of appeals, ■coupled with the allegations of the petitioners, it seems tome,sufficiently sets forth “sufficient cause,” in the nature of afrand, why the decree, as to these petitioners, should be opened and vacated, unless, as I have stated, there is some insuperable bar to such action. To establish such insuperable bar, we are referred0 by the respondent to the cases of Reed v. Reed, 52 N.Y. 651, and Sheridan v. Andrews, 80 N. Y. 648, and other cases of like nature, holding that, where a judgment or decree has been affirmed upon appeal, it is too late to apply to the surrogate’s court, or other court of ■original jurisdiction, to have such judgment or decree opened or vacated; 'that, by a judgment of affirmance upon appeal, the power to reopen or vacate such judgment or decree is taken from the surrogated court, or other court of original jurisdiction. It is the appeal, then, and the action of the appellate court upon it, that deprives the petitioners of the rights that they would otherwise have ; but it seems to me that the appeal from the original judgment can only bind those who are parties to it. Before the appeal was taken, they had the right to make this application, and the surrogate had power to grant it; and, in« my opinion, this right, like any other right, is one that a party cannot» be deprived o£ unless he has had his day in court. The petitioners did not have their day in court upon the appeal. It appears that the very questions that they now seek to raise by their petition, and by the proposed objections filed as part of the petition, could not be, and were net, passed upon by the general term and the court of appeals, for the simple reason that the heirs and residuary legatees were not parlies to the appeal; and it seems to me that the petitions have shown good and sufficient reasons why they were not parties to such appeal,—thatfis, they were not aware of the decree, and that some of them, at least, had not appeared in the surrogate's court because they were informed by the executors of the' estate, or those representing them, that there was no necessity for their appearing, and they were misled in believing that there was nothing due from the estate,—that is was practically settled.

The other objection that is raised, that the surrogate has not. power to set aside the legatees’ assignments, as fraudulent, is not to be passed upon here. The instruments are not before us, and we cannot determine whether, in truth, and fact, they are assignments, or only receipts for the payment of money. If receipts, they are always explainable by paroi. In addition to that, some of the petitioners, it appears, have not signed any such paper, whether the same be a receipt or an assignment.

It sufficiently appears, I think, from the proceedings already had in this court in the matter of this estate, that this decree ought not to stand. The question as to whether the petitioners, or any of them, have, by their own acts, placed themselves in such a position as will not entitle them to any portion of the residuary estate, can be determined upon a full hearing before the surrogate. If they possess rights which the surrogate has not power to adjudicate upon, after that fact is determined it will be time enough for them to resort elsewhere. A decree which stands under the condemnation of the court of last resort, and that has only been permitted to remain in force as a decree because no one who was injured by its errors made objection to it, now that such injured parties do appear, and ask to be heard, and give reasons why they have not heretofore made their objections, the court will not, under the circumstances, be curious to find reasons or causes to permit it to longer remain in force, and deprive the petitioners of the opportunity of asserting their claims. “The surrogate has the power of a court of general jurisdiction to vacate his decree (§ 2481, subd. 6), and relief may be granted, as in the supreme court, upon the application of any one, for sufficient reason, in furtherance of justice.” In re Flynn, 136 N. Y. 287, 291; 49 St. Rep. 388. And it seems to me that it is manifestly “in furtherance of justice” to open a decree that is open to the objections and criticisms made to-this one when it' • was examined by the court of appeals. The order appealed from is reversed, the decree opened and vacated,. and the petitioners permitted to file objections to the accounts, as-prayed for, with $10 costs, and printing and other disbursements of this appeal, to be paid for by the respondent.

All concur.


text:
    The People, Resp’t, v. John O. Jeffery, App’lt.

      {Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    1. Evidence—False pretenses.
    Upon the trial of an indictment for false pretenses, similar transactions are competent to show the intention of the defendant.
    2. Witness—Impeachment.
    Where a witness for defendant has testified to the good character of the prisoner, the people can properly ask him if he has heard reports derogatory to his character.
    3. Indictment—False pretenses.
    In cases of indictment under § 566 of the Penal Code, it is unnecessary for the people to allege, or on the trial to prove, the value of the- instrument complainant was induced to sign by the false pretenses of the defendant.
    4. Same.
    An averment in the indictment that the defendants made the false and fraudulent representations therein alleged, is an allegation that each of the defendants made such representations, and is sufficient as to each.
    5. Same.
    The indictment, in this case, was held to charge sufficiently the complainant relied upon the alleged false representations of defendants.
    6. Same.
    So, it was held to charge false representations as to existing facts.
    Appeal from a judgment of conviction for false pretenses.
    The.third count of the indictment under which defendant was convicted is as follows: “The grand jury of the county of St. Lawrence, by this indictment, also accuse said John 0. Jeffery, Clarence Crapser, John Eusaw, of the crime of obtaining the signature of another to a written instrument by means of false pretenses, committed as follows : The said John 0. Jeffery, Clarence Crapser, John Eusaw, at the time and place set out in the first and second counts of this indictment, and being the same acts therein alleged, did feloniously, fraudulently, and designedly, and with intent to cheat and defraud another, procure and obtain the signature of the said John McCann to two several promissory notes in writing,—one for one hundred dollars, and one for two hundred dollars,-—each payable in one year'from date, by means of false and fraudulent representations and pretenses made to said John McCann, to wit: That the said John 0. Jeffery, Clarence Crapser, John Eusaw, represented a certain company, to wit, D. Beers & Co., who were doing business at or near the city of Loclcport, in this state; that said company had a charter from the United States authorizing them to do. business; that they were perfectly good ; that they were engaged in the business of selling seed grain; that said business was legal and lawful; that if the said John McCann would purchase of the said John 0. Jeffery, Clarence Crapser, John Eusaw, twenty bushels of oats, at fifteen dollars per bushel, and would give his notes therefor, that within a year, when the crops to be raised from said twenty bushels should mature, the said company would sell, and aid in the selling, for the said John McCann, forty bushels, at fifteen dollars per bushel; that thereby the said John McCann would make a large sum of money; that they, the said John 0. Jeffery, Clarence Orapser, John Rusaw, had made money by the same means; that John Rusaw had made and had enough therefrom to pay the mortgage upon his farm, and he had paid for his farm, and had a large amount of money left after paying for the same; that only three could have the chance in said town ; that they had selected said John McCann because he was poor and in debt, and they desired to aid him ; that said company was perfectly good and solvent; that their charter had five years to run, and there could be no danger of loss to saido John McCann. That, in truth and reality, all of said representations were false and untrue, and were known to said John 0. Jeffery, Clarence Orapser, John Rusaw, to be false and untrue. That said D. Beers & Co. had no charter from the IT. S. government, were not a solvent company, were not engaged in a legal and lawful business, and the said John Rusaw had not made enough to pay and discharge the mortgage upon said farm, and had not paid for his farm, and had not a large amount of money left after paying for the same. And that each and all the other representations were false and untrue, to the knowledge of said John 0. Jeffery, Clarence Orapser, John Rusaw, as aforesaid.”

      D. E. Brong, for app’lt; L. P. Píale, Dist. Atty. (G A. Kellogg, •of counsel), for the People.
   Putnam, J.

It is urged by the learned counsel for the appellant that the demurrer interposed by defendant to the indictment ■should have been sustained, for thereason that the third count thereof, under which defendant was convicted, did not allege that McCann believed or relied upon the alleged representations made by Jeffery, Crapser, and Rusaw, or was thereby induced to sign the notes set out in the pleading. But the indictment did allege that defendants, at the time mentioned, feloniously, fraudulently, and designedly, and with intent to cheat and defraud another, procured and obtained the signature of the said John McCann to the two notes described, by means of the false and fraudulent representations and pretenses therein set out. After stating the representations made, it further alleged that each of said representations was false, to the knowledge of defendants. We cannot answer the above-stated position taken by the appellant in any better way than to quote an extract from the opinion of Miller, J., in Clark v. People, 2 Lans. 329, where a similar question arose. The learned justice used the following language: ‘‘It will be observed that there is no positive and direct averment that the pretenses alleged had any influence upon the mind of the prosecutor, or induced him, in any way, to part with the oxen ; and it would, no doubt, have been more strictly in accordance with the rules of pleading applicable to such cases to have inserted an allegation embodying a charge of the character stated. It is, however, averred that by the false pretenses alleged the prisoner did obtain the property. This could not be true, in fact, unless the prosecutor believed the false pretenses set forth to be true, and they had an influence upon his mind, and induced him to part with the property. How could the prisoner obtain the oxen in the manner alleged, unless it was done by means of the false pretenses operating upon his mind and influencing his judgment? The allegation that the prisoner made the representation for the purpose named, in connection with the subsequent averment that he did thus obtain the oxen, is equivalent to a statement that he believed the pretenses to be true, and was induced thereby to part with the property. First is the inducement, and then follows the act of obtaining the oxen,—the latter as a natural and inevitable consequence of the former. The fair and legitimate construction of the last allegation will warrant the inference that, inasmuch as the prosecutor was induced to part with the oxen, that he believed the statements made, and thereby the oxen were unlawfully obtained.”

We concur with the view of Justice Miller, above quoted, and are hence unable to hold that the position of appellant is well taken.

The defendant also objects to the indictment because it alleges a falsé promise, and couples it with alleged false pretenses which arc of no importance without the promise ; citing Ranney v. People, 22 N. Y. 417. An examination of the authority cited shows that it is not parallel to the case under consideration. The false pretense in this case was founded on false representations as to existing facts, by which McCann was induced to deliver to defendant his two promissory notes. In Ranney v. People, supra, the false pretense alleged was the promise of the defendant to employ the complainant at a future time, and pay him, when he did not in fact intend to employ him. It was held that the false representa- ’ tian complained of was promissory in its nature, and hence that a criminal charge could not be sustained. In this case, defendant obtained the notes from complainant by agreeing that a certain corporation or firm should thereafter pay him certaim sums for oats, and that said corporation or firm was solvent. The false representation was as to the solvency of the firm,—as to an existing fact at the time the representations were made. The false pretense counted on was not the false promise, but the statement as to the solvency of the corporation or firm. This case is not different from the ordinary one of false pretense, where one buys goods on credit, falsely representing himself as solvent. In such a case there is a promise to pay for the goods, and the false pretense which would be of no importance without the promise.

Counsel for appellant further claims that the court erred in receiving evidence on the trial of similar transactions to that on account of which defendant was indicted. Such evidence, in cases of alleged false pretenses, where it is important to show the intention of defendant, has been deemed proper. Bielschofskey v. People, 3 Hun, 40; affirmed, 60 N. Y. 616; Mayer v. People, 80 N. Y. 364.

Nor do we think that the court erred in allowing the witness Levan to testify that Jeffery had been indicted ; that he saw in the papers that he had. The defendant had made Levan his witness for the purpose of proving good character. On that subject the people could properly cross-examine him, and, as he had testified to the good character of the prisoner, the people could properly ask him if he had heard reports derogatory to his character. Carpenter v. Blake, 10 Hun, 358-360; Leonard v. Allen, 11 Cush. 241-245.

We are of opinion that it is unnecessary for the people, in cases of indictment under § 566 of the Penal Code, to allege, or on the trial prove, the value of the instrument complainant was induced to sign by the false pretenses of the defendant. The instrument, might be one whose value could not be proved. In this case the defendant obtained the notes of McCann, one of which, for $100 is now outstanding, and on which he may be compelled to pay $100 and interest. We think the case stated in the indictment and proved on the trial was within the plain provisions of § 566 of the Penal Code.

It was alleged in the indictment that the “ defendants ” made the false and fraudulent representations therein alleged. This should bé deemed an allegation that each of the defendants made such representations, and sufficient as to each.

The appellant further urges that the people, on the trial, failed to make out a case that authorized the conviction of defendant. The- people were compelled to show the representations, their falsity, that they were known to be false by defendant, and that the complainant relied upon them. The alleged representations were: That D. Beers & Co., who had an office at Wilson, N. Y., had a charter from the United States government, that would last for several years. There was no danger of McCann’s entering 'into the arrangement proposed by defendants, to give them two-notes, one for $100 and one for $200, for 20 bushels of oats, in consideration of which D. Beers & Co. would executes contract to after-wards sell for or buy of McCann 40 bushels of oats at $15 per bushel, because the company was strong, and had a charter from the government of the United States. Under all the circumstances of the case, the word “ strong,” as used by defendants, should be construed to mean financially strong or able, the word being evidently used to obtain for the company credit with complainant. The representations alleged in the indictment were sufficiently proved on the trial, as against defendant Jeffery. ' It appeared that he took part in the conversation between defendants and complainant at the time the notes were executed; told him there was no danger,—the company was strong; drew the notes, and was one of the principal actors in the transaction. It was sufficiently shown by-the testimony of McCann that he relied on the statements made by the defendants, and was induced thereby to enter into the contract and make the notes. We think the evidence sufficient to go to the jury, as to the falsity of defendants’ representations. It required no evidence to show' that D. Beers & Co. did not have an\' charter from the United States government to carry on the business in which they were engaged, and that the representations made in that regard were false. It was shown by testimony received without objection that there was a firm of D. Beers & Oo. located at Wilson, FT. Y., which started in 1889, and ceased in 1890, before the transaction with McCann. The firm was composed of D. Beers and one Seeley. Prior to the execution of the contract between D. Beers & Co. and McCann, D. Beers had sold out his interest in the company to Seeley for a horse and buggy; so that, at the time of the transaction in question, Seeley alone was carrying on the business in the name of D. Beers & Co. It appeared that Seeley had passed through bankruptcy and was insolvent, and his financial standing was not good; hence, instead of D. Beers & Co. being strong, the evidence indicated that it was composed of one man, Seeley, who was insolvent. As to whether the defendant knew that his statement in regard to the solvency of Seeley, who was doing business in the name of D. Beers & Co., was false, we think, under all the evidence and facts of the case, that the trial judge properly submitted the question to the jury. Jeffery claimed to be an agent of D. Beers & Co., and he lived in the same county with Seeley. Seeley had passed through bankruptcy, was insolvent, and his financial standing was not good at the timé of the transaction with complainant. Under the circumstances, whether the positive and false statement of Jeffery to McCann that D. Beers & Co. was strong, made to induce McCann to execute his notes for $300, was or was not made with knowledge of the falsity of such statement, was a question for the jury.' The jury could have found, on the evidence, that the representation made by the defendant was a reckless assertion as to a fact, as to the truth or falsity of which he did not know. On the whole, we think the case was properly submitted to the jury, and that the evidence sustains the verdict.

Other exceptions were taken, which we have examined, but do not think it necessary to discuss. This court could not properly interfere with the discretion exercised by the trial court as to the sentence imposed upon the defendant.

The judgment should be affirmed.

All concur.


author: Herrick, J;

text:
    William D. MacFarlane, App’lt, v. Robert F. MacFarlane et al., Resp’ts.

      i<Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    1. Partnership—Firm property.
    Devisees of premises and the business conducted thereon, who elect to carry on the business together, using the real estate for such business, become partners, and the real estate is firm property.
    2. Partition—Partnership real estate.
    In such case, one devisee cannot maintain an action for partition against the other as to such real estate, where there has been no adjustment of the firm accounts.
    Appeal from a judgment dismissing the complaint' in an action for partition.

      Jerome W. Echer, (Henry G. Neviit, of counsel), for app’lt; Montignani, Mallory & Elmendorf {John F. Montignani, of coun sel), for resp’ts.
   Herrick, J;

Robert MacFarlane, the father of the parties to •this action, for many years carried on the business of dyeing at No. 24 Norton street, in the city of Albany. He died on the 20th day of December, 1885, leaving a last will and testament, the second, third and sixth clauses of which read as follows: “2d. I do hereby give and bequeath to my beloved wife, Annie, the sum of seven hundred dollars annually, to be paid in monthly or quar-" terly installments during the term of her natural life. 3d. I give and bequeath to my sons Robert F. and William D. MacFarlane my house and property No. 24 Norton street, Albany, N. Y., with all the implements, mechanism and fixtures, and interest connected with and in the dyeing and scouring business, to be inherited equally, share and share alike.” “ 6th. My wife’s annuity shall be obtained from the rents of my houses and if these are not enough the remainder shall be made up by my sons from the proceeds of the dyeing-and scouring business.”

In July, 1892, the plaintiff commenced an action for a partition of the premises No; 24 Norton street. Issue being joined, the action was referred to a referee to hear and determine. The referee, among other things, found that the plaintiff and the defendant Robert F. MacFarlane were copartners, and as such copartners were the owners of No. 24 Norton. street, and the business, good will, implements, fixtures, and interests connected with and in the dyeing and scouring business formerly belonging to and carried on by Robert MacFarlane, deceased. The referee dismissed the plaintiff’s complaint, and from the judgment entered upon his report the plaintiff appeals to this court.

I think the judgment should be affirmed. The two sons, Robert F. MacFarlane and William D. MacFarlane, upon the death of their father, entered into possession of the premises No. 24 Norton street, and continued the business that had been conducted by him in his lifetime, dividing the profits thereof equally between them, until about July 18, 1890, when an arrangemant was made between them by which the business was to be conducted under the sole management of William D. MacFarlane ; he to receive two-thirds of the profits thereof, and the remaining one-third to be paid to Robert F. MacFarlane. That arrangement continued down to the time of the commencement of this action. There has never been any accounting or settlement of the business between them. The taxes, assessments, insurance and other charges upon the real estate, No. 24 Norton street, were paid out of the proceeds of the business, and charged to the expense account of said business. A portion of the annuity of the widow of Robert MacFarlane, deceased, was annually paid out of such business. ■ The plaintiff, in his testimony, speaks of the business there carried on as copartnership business. Although it does not appear from the case that there was any specific agreement, either oral or written, entered into between them, it seems to me that from the manner that they received the real estate in question, with the apparatus, machinery and appliances thereon, the evident intention of the testator, as evidenced by the sixth clause of his will, that they should continue the business as theretofore carried on by him, and the fact that they thereafter carried on said business together, dividing the profits thereof equally between them, constitutes, in fact and in law, a copartnership, as completely as if written articles of copartnership between them had been signed. The mere fact of the bequest to them, by will, of the real estate in question, and of the business, did not constitute them partners, but merely made them joint owners; but their election - to continue business, each contributing thereto his share of the property so bequeathed to him, rendered the relation between them that of copartners, and the property copartnership property. Real estate used in the business of a copartnership, although the right and title is in the name of the individual members of the copartnership, may be just as much copartnership property as personal property,and for all copartnership purposes, the payment of debts, and the adjustment of accounts between the copartners themselves, is treated as personal property. When purchased by partnership funds to be used in the partnership business, and actually appropriated to and used in the partnership business, it becomes copartnership property, although the real estate be in the names of the individual members of such copartnership, or of one of them. 17 Am. & Eng. Enc. Law, 944 et seq.; Hiscock v. Phelps, 49 N. Y. 97; Fairchild v. Fairchild, 64 id. 471; Greenwood v. Marvin, 111 id. 423; 19 St. Rep. 612. Copartners can contribute an interest in real estate to the capital stock of a copartnership, as well as money or other personal property ; and, being so contributed, it becomes a part of the copartnership assets. At the moment of their father’s death, William and Robert MacFarlane became joint Owners of the real estate in question ; and by electing to carry on the business together, using such real estate for the business, it was a contribution by each of his interest in such real estate to the copartnership, and rendered it copartnership property.

Again, the bequest to them was of the real estate, implements, mechanism and fixtures, together with the business as a whole. They were bound together, and the plaintiff elected to so treat them for a number of years, treating the real estate as much a part of the copartnership property as any other of the property or business bequeathed to him. The evident intention of the testator, coupled with the acquiescence therein of the legatees, and their conduct in relation to such real estate for a series of years, renders such real estate copartnership property. Jackson v. Jackson, 9 Ves. 591; Waterer v. Waterer, L. R. 15 Eq. 402. As co-partnership property, it is personalty; and not until the copart: nership creditors are paid, and the interests of the copartners adjusted, does it resume its character of real estate. Fairchild v. Fairchild, supra; Greenwood v. Marvin, supra. Being a part of the partnership property and assets, it cannot,, in the absence of any accounting between the copartners or adjustment of the co-partnership accounts, be separated from the rest of the copartnership property, and made the subject of a separate action to divide the same or the proceeds thereof between the parties.

The judgment should be affirmed, with costs.

All concur.


text:
    Charles Kennedy, App’lt, v. James Farley, Resp’t.

      {Supreme Court, General Term, Third Department,

      Mled December 4, 1894.)

    1. Deed—Boundary.
    A boundary line, fixed by arbitration, is conclusive as between the parties, their heirs and privies.
    2. Same—Grant.
    A deed, describing the premises as the same land conveyed by a certain person to the grantor, conveys only the estate that the grantor derived from such person.
    Appeal from a judgment catered on a verdict directed by the court in favor of the defendant.
    Hand, Kellogg & Hale (Richard L. Hand, of counsel), for app’lt; Smith & Finn (Francis A. Smith, of counsel), for resp't.
   Herrick, J.

This is an action against the defendant for trespass in entering upon what the plaintiff alleges to be his premises, and cutting timber therefrom. The court directed a verdict in favor of the defendant, and from the judgment entered thereon the plaintiff appeals to this court. It appears that the plaintiff, in 1869, purchased a parcel of land known as “lot Mo. 97,” and entered into the possession thereof; his grantor at the time of the execution of the deed being in possession of the premises. Adjoining the lot purchased by him was a lot in the possession of one William Jackson. A controversy having arisen between them as to the boundary line between the two lots in 1877, by a written agreement they referred it to arbitrators to fix the line. The arbitrators, by a written instrument under their hands and seal, fixed and determined the line between the two lots, and provided that each of said parties should build their respective share of the line fence on said line, and provided that the fence theretofore built by the plaintiff might be removed to the line established by the arbitrators. Both parties consented to the location of the line as established by the arbitrators. Their award establishes the line of division between the two lots about four rods and eleven feet north of the fence erected by the plaintiff before that time. The plaintiff had theretofore built and maintained the east half, and Jackson the west half, of the line fence between them. After the line was fixed by the arbitrators, the plaintiff moved the easterly half of the fence northward to the new line; the westerly half remained in its old location. The opening thus caused by the easterly part being removed, the westerly part remaining in its old location, was closed by a short cross fence between the two. The fence remained in this position until 1881, when the defendant came into possession of the premises theretofore occupied by Jackson, and shortly thereafter moved the westerly half of the fence up to the line established by the arbitrators, thus establishing a continuous fence between the two lots, upon the line established in 1877. In the spring of 1892 the defendant moved the west half of the fence four rods or, more north of the arbitrators’ line, upon what the plaintiff alleges to be his property, and»cut the timber therefrom, which removal ■of the fence and cutting of timber constitute the trespass complained of.

The proof by the plaintiff of a deed to him of lot No. 97, his ■grantor ,being at the time of the execution of that deed in possession, I think, is sufficient to establish at least a prima facie title to said lot. The submission to arbitration of the question as to what was the true boundary line between his lot No. 97 and the lot occupied by Jackson, and the award of the arbitrators under •such submission, were sufficient to establish that boundary line, at least as between himself and Jackson and Jackson’s heirs and privies. Vosburgh v. Teator, 32 N. Y. 561; Wood v. Lafayette, 46 N. Y. 484.

But the defendant claims that he is not bound by the act of Jackson; that he is neither heir of, nor privy in estate- to Jackson. He claims that Jackson was merely in possession of the premises under a contract to purchase, and that he derives his title, not through Jackson, but through other parties, who owned the fee of the land. I have some doubts as to the legality of the ■evidence by which the nature qf Jackson’s possession was proved; but, assuming it to be properly admitted, it would appear that he was in possession of such property under a contract to purchase the same from one Mary L. 0. Biddle, the owner thereof, and that, at about the time of his death, he owed a balance upon the purchase-price of $405. Whatever his rights may have been, be transferred them all by a quitclaim deed dated December 31, 1878, to the J. & J. Rogers Iron Company. In January, 1880, he died. On the 31st day of May, 1880, Mary L. C. Biddle executed a warranty deed to the J. & J. Rogers Iron Company of the same premises, describing them as being the same premises contracted by her to one William Jackson, and by said Jackson deeded to the party of the second part; and the" J. & J. Rogers Iron Company, by a deed-dated April 13, 1887, deeded the premises to the defendant, Farley. Upon these facts the defendant claims that, at the time that Jackson was in possession of such premises, Mary L. C. Biddle was the owner in fee thereof; and that she conveyed such premises to the J. & J. Rogers Iron Company ; and that the J. & J. Rogers Iron Company, in turn, conveyed to him; and that, therefore, he is not an heir or privy of William Jackson; and that William Jackson, being merely a contractor in possession, could not enter into any agreement of arbitration "that would bind the legal owner. At first blush his position would seem to be correct, but the real facts as disclosed here do not, I think, sustain the defendant’s contention. Jackson, being in possession of the premises under a contract to- purchase the same, had rights equitable, if not legal, therein. Those rights were transferred by him to the Rogers Iron Company, accompanied with all the obligations that he had imposed upon them. One of the rights that he undoubtedly possessed was to have a deed of the property, upon paying the balance of the purchase price, and shortly after his death that deed appears to have been given by Mary L. C. Biddle to his grantee, the Rogers Iron Company ; the consideration therein expressed being considerably less than the testimony shows was the balance due by Jackson, shortly before or at the time of his death. In that deed the contract between Mary L. C. Biddle and Jackson is expressly referred to. o Thus, the Rogers Iron Company, by these two deeds, became possessed of the equitable interest of William Jackson, and of the legal estate that he was to receive under his contract upon the payment of the purchase price of said premises. I am strongly inclined to-think that the Rogers Iron Company took the premises subject to all estoppels and conditions that Jackson himself was subject to, and took no more than Jackson could have conveyed had he received a deed in fee pursuant to his contract with Mary L. C. Biddle. However, this latter proposition is perhaps not necessary to be determined for the purpose of deciding this case. As we have heretofore seen, Jackson was bound by the articles of arbitration ; and, by the award of the arbitrators, all that he could convey was the lot whose boundary was established by said arbitrators. The quitclaim deed that he gave to the Rogers Iron Company did and could convey no premises north of the boundary line described in the award. That is all the estate that the Rogers Iron Company derived from William Jackson, and that is the estate, and all the estate, that was conveyed to the defendant, Whatever interest the Rogers Iran Company had in the premises, it limited its conveyance thereof by what it received from Jackson ; for in the deed of the Rogers Iron Company to the defendant the premises conveyed to the defendant were described as follows: “All that certain piece or parcel of land, etc., containing one hundred and sixty acres, more or less, and is the same land con veyed to the party of the first part by William Jackson and wife by deed dated December 31, 1878.”

The only title that the defendant has is through this deed, and he is concluded by its terms. His chain of title goes direct to William Jackson, and the amount of land that he received and its boundaries are limited by what Jackson could and did convey in his conveyance to the Rogers Iron Company. It follows from this that he was not entitled to move the fence and enter upon the premises in dispute, or to cut timber therefrom, and that his acts in so doing were trespasses.

Bach party in the court below having requested the court to direct a verdict upon the evidence, and the damages being agreed upon at $20, the judgment is reversed, and judgment directed for the plaintiff for $20, with costs, and the costs of this appeal.

All concur.


text:
    Martin C. Van Alstyne, Resp’t, v. Christopher Smith, Individually and as Administrator, etc., Impleaded, etc., App’lt.

      {Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    1. Witness—Attorney and client.
    Instructions by the client as to provisions to be inserted in a deed are not privileged.
    2. Evidence—Parol.
    Where a defense is interposed, in an action on a contract, that certain provisions were inserted through fraud, the conversation between the agents of the parties, before the execution of the contract, is admissible in evidence.
    Appeal from a judgment in favor of plaintiff.

      F. B. Harder, for app’lt; Q. S. Collier (Á. Frank B. Chace, of counsel), for resp’t.
   Putnam, J.

The action was brought for the foreclosure of a mortgage dated January 24, 1871, made by Anne E. Moore to plaintiff to secure the payment of the sum of $4,650, with interest. After the execution of the mortgage, Anne E. Moore conveyed the mortgaged premises to Christopher Smith and William H. Smith, brothers, the amount of the mortgage being deducted from the purchase price agreed to be paid said grantor, and said deed containing the following clause immediately after the warranty therein: “ Except a certain indenture of mortgage given to secure the payment of $4,650, which mortgage the said parties of the second part hereby assume to pay as a part of the purchase money of this conveyance, and the principal sum, with interest, is to be deducted therefrom.”

When this action was commenced, William H. Smith had died, Christopher Smith being his only heir and administrator. The latter was made defendant in person and as administrator, and the usual judgment for a deficiency was asked for against him. He interposed an answer alleging that the above-quoted clause was inserted in the deed without his knowledge or consent; that no contract or agreement was ever made between him and his brother and Anne E Moore for the assumption by them, in the deed, of the payment of the mortgage; that said provision was fraudu-' lently inserted in the deed, and his first knowledge thereof was when this action was commenced. The issues raised by the pleadings were tried before a referee, who found in favor of the plaintiff, and judgment was entered for the foreclosure of the mortgage, the sale of the mortgaged premises, and against the defendant, Christopher Smith, individually and as administrator, for the deficiency, if any, on the sale. From said judgment the defendant Smith appeals.

We think the evidence on the trial sufficient to sustain the conclusions reached by the learned referee on the questions of fact submitted to him. We are unable to believe that his finding that the assumption clause in the deed was inserted therein with the consent of defendant Christopher Smith and his brother was erroneous. This provision was written in the deed which the Smith brothers had accepted, put on record, and under which they had held the title of the land in question for many years. The amount of the mortgage debt was deducted from the purchase price paid by the Smiths to Anne E. Moore. The presumption created by these admitted facts, with the testimony of the witness Silvernail, who drew the deed, and of Moore, who made the contract with the Smith brothers, we think justified the conclusion reached by the referee. We should, hence, be of the opinion that his findings could not, under the evidence, be disturbed, and that the judgment rendered on his report should be affirmed, were it not for some rulings on the trial, which we think were erroneous.

The referee did not err in overruling the defendant’s objections to the testimony of the witness Silvernail, the attorney who drew the deed,- as to the instructions given him when the instrument was prepared. Such evidence was not incompetent, under the provisions of § 835 of the Code of Civil Procedure. Hebbard v. Haughian, 70 N. Y. 54; Root v. Wright, 84 N. Y. 72; Greer v. Greer, 58 Hun, 251; 34 St. Rep. 448. There were other rulings of the referee, however, sustaining objections to questions asked by the defendant of witnesses upon the trial, that we think were erroneous.

The defendant Smith, in his answer, claimed that the clause in the deed from Anne E. Moore to him and his brother, above quoted, was fraudulently inserted therein, without his knowledge or consent, and not in pursuance of any contract or agreement between the parties, and that he first learned of its insertion in the deed when this action was commenced. If, on the trial, he could have maintained the truth of the allegations, he would have been entitled to succeed in the action. Dey Ermand v. Chamberlain, 88 N. Y. 658; Kilmer v. Smith, 77 N. Y. 226. Whether the assumption clause was properly inserted in the deed, or not, depended upon the oral contract actually made between the parties, attempted to be reduced in writing in the deed. If it were in fact agreed that the grantees should personally assume the payment of the mortgage, then a provision to that effect was properly put in the deed. But, if no such agreement was made, then the insertion in the deed of such a provision was a fraud on defendant, unless at the time of the execution thereof he knew of such insertion, and consented thereto. It is well settled that, on questions of fraud in the reducing of a contract to writing, the whole of it is open to paroi proof; the court disregarding the writing, and' treating the whole transaction as a verbal contract. Phyfe v. Wardell, 2 Edw. Ch. 47; Rosboro v. Peck, 48 Barb. 92; Koop v. Handy, 41 Barb. 454. Here defendant claimed that a provision in the deed, which he did not know of until this action was commenced, was inserted therein fraudulently, and was not called for by the actual agreement of the parties. On the issues raised by his answer, it is clear that he should have been allowed to show just what the verbal contract was between the parties,—all that was said between them prior to the execution of the deed. The question was whether the verbal contract was carried out in the deed, and hence what the verbal contract was.

The following question was asked by defendant of the witness McDowell, viz.. ‘'Q. What was said between yourself and John H. Moore and his wife, Anne E. Moore, about buying that hotel property on behalf of the Smiths, on or about November, 1874?” ;

This question was objected to by the plaintiff, and the objection sustained. McDowell, as agent of the Smith brothers, made the bargain with Anne E. Moore and her husband. The defendant, by the question sought, in the proper way, to show what the verbal contract was, and, we think, was entitled to an answer to the question.

On the cross examination of John H. Moore, a witness called by the plaintiff, and who acted for Anne E. Moore in making the bargain with McDowell and the Smith brothers for the sale of the premises to the latter, he was asked, the following question: “Q. Will you swear that there was anything said in any of your negotiations for the sale of this property, either with McDowell or either of the Smiths, about putting a clause in the deed requiring the defendants Smith to assume and pay this mortgage ?”

The referee sustained the plaintiff’s objections to such question. We think the question was proper, and that the defendant was clearly entitled to an answer thereto.

The following question was asked of the witness Christopher Smith : “Q. In the negotiations this year between your brother, yourself, and Mrs Moore in regard to the purchase of this property, was there anything said about your brother and yourself assuming and promising to pay this mortgage?"

The question was objected to by the plaintiff, and the objection sustain by the referee. In consequence of the referee’s ruling in sustaining the objections to the questions as above specified, and many other similar questions propounded hy defendant to witnessess, he was prevented from showing what the paroi contract between Anne E. Moore and himself and brother was. With that view, he sought to show what was said between the parties during the negotiations, and also that nothing was said in reference to the Smith brothers assuming the payment of the mortgage. But the evidence he offered with this view was excluded by the referee. We think the exclusion of this testimony was erroneous. Defendant should have been allowed to show what the entire paroi contract was, and everything that was said between the parties, prior to the execution of the deed, tending to show the actual agreement made. The referee, on the trial, did allow some questions asked by defendant of witnesses, similar to those so excluded, to be answered; and thus the error above adverted to in such exclusion was to some extent, but not entirely (as a careful examination of the testimony will show), cured.

It is suggested that no error was committed in excluding the evidence offered by defendant in relation to the paroi contract, because it was shown that there was a written contract between the parties, executed prior to the delivery of the deed, and hence all previous oral negotiations were merged in such contract. But it was not proved that there was a written contract, obligatory on the defendant Christopher Smith. He testified that he never saw-such a contract. And the witness Moore does not testify that the ' written agreement was signed by Christopher Smith, or seen by him, or shown that William H. Smith, who he said executed it, was authorized to do so for the defendant, or in fact assumed to. The alleged contract was not introduced in evidence, or its contents shown, nor did the testimony of the witness Moore show that any contract was ever executed, to which defendant was a party. Hence, the testimony in the case failed to show, at least as against the defendant Christopher Smith, that there was any contract. The action was against him individually, and as administrator of William H. Smith, He testified that he had never seem any contract. If he had been allowed to show, and could have proved, that, under the actual agreement made, it was not understood or agreed that he and his brother should assume the payment of the plaintiff’s mortgage, and that the provision for such assumption was put in the deed without his knowledge or consent, the referee could have properly found that the provision was fraudulently inserted, notwithstanding the unauthorized contract, defendant had never seen, and which was executed without his knowledge. We conclude, therefore, that, on account of the exclusion of the evidence above referred to, by the referee, the judgment should be reversed and a new !¡rial granted, with costs to abide the event.

All concur.


author: GtIEGEBICH, J.

text:
    John W. Ritchie, Resp’t, v. James Talcott, App’lt.

      (New York Common Pleas, General Term,

      Piled December 3, 1894.)
    Judgment—Replevin—Res adjudicata.
    A judgment in replevin bars a subsequent recovery of any damages which might have been recovered in the former action.
    Appeal from a judgment in favor of plaintiff, rendered by the justice without a jury.

      L. B. Bunnell, for app’lt; John Baptist Marshall, for resp’t.
   GtIEGEBICH, J.

This action was brought to recover damages alleged to have been sustained by reason of the taking and detention of certain personal property. The answer contains a general denial, and sets up the additional defense of former adjudication. It appears from the uncontradicted evidence in the case that the defendant, Talcott, was a manufacturer of goods, some of which he had sold to one Marco, who in turn sold them at an auction room, from which the plaintiff purchased a portion of them. Defendant’s agent and his attorney went in company to the plaintiff, and found that he had some of the goods. They explained to him that the goods had been purchased from them through fraud and deceit by Marco, who had in the middle of the night stripped his store, and carried the stock to an auction room. Plaintiff thereupon said he did not want to keep any goods so purchased, and took them back in his store, and showed them the goods, which they identified. Atthispointsomeagreementwasmade between them, the terms of which are in dispute. The plaintiff claims that they told him “they would replevin the goods, * * * and would see that he had no expense whatever,” and “ they would replevin the goods, and it would not cost him anything to defend it; ” that “they would supply him with counsel,” “ would see him clear in the matter,” “ would defend him in every way.” On the other hand, Fellows, defendant’s employe who had charge of the suspended accounts, and was also a lawyer, and defendant’s legal adviser to some extent, and who visited the plaintiff in company with Bunnell, the attorney who had charge of the matter for the purpose of bringing suit, testified that they said to Ritchie that if he were sued for the value of the goods they would defend him, but that they did not promise to employ counsel for him. Bunnell testified that he told Richie that “if he would put in no defense to the replevin suit, and let us take our goods, if he was sued for the value of the goods I would defend the action, and save him from responsibility and harm, and, if a judgment was recovered against him, we would see that it was paid.” Upon cross-examination Bunnell admitted that he agreed “ to furnish him counsel in that action,” apparently meaning the proposed replevin suit; also that he said, “You need not hire any attorney to defend that replevin suit," and that he told Ritchie he would send a lawyer-to him ; and he also admitted that he was surprised when he learned Ritchie had employed a lawyer for himself. Considering the evidence as a whole, it seems to us that the intention of the parties was that the replevin action was to be merely formal as between Ritchie and Talcott, and that the only real litigation contemplated was some action which might be brought against Ritchie for the price of the goods bought. In the event of such an actipn they were to furnish him counsel, defend him, pay any judgment which might be recovered, and in every way save him harmless. Bunnell’s statements to him that he need not engage any attorney to defend the replevin suit, and that they would furnish him counsel in that action, were not inconsistent with the above interpretation of the agreement, as such statements, in view of all that had been said, must be understood as a promise to furnish an attorney to appear for him as a matter of form in the replevin suit. But the plaintiff herein (defendant in the replevin ■suit) did not let that suit proceed without putting in a defense. He engaged counsel for himself, and was successful in his defense, the complaint being dismissed, with $10 costs. In taking this course he abandoned the special agreement now sought to be relied upon, and should have proved his damages, including his loss arising from the fact that the goods were in the possession of the marshal until the winter was passed, and had to be sacrificed as unseasonable. Such damages not having been recovered in the former action, the matter has now become res adjudícala, and this action is barred.

The respondent suggests that the action for damages is independent of, and not affected by, the action to determine the title. Sicch is not the intention of the Code, as we read it. Section 1726, made applicable to district courts by section 1343 of the consolidation act (Laws 1882, c. 410), declares that in an action of replevin “ the verdict, report or decision must fix the damages, if any, of the prevailing party.” So, too, the undertaking mentioned in section 1699, made applicable to district courts by section 1332 of the consolidation act, is conditioned “for the payment to the defendant of any sum which the judgment awards to him against, the plaintiff.’’ The case of McKnight v. Dunlop, 4 Barb. 36, was. decided under part 3, c. 8, tit. 12, § 55, 2 Rev. St., which provided as follows: “ The defendant whenever he shall be entitled to a. return of the property replevined, instead of taking judgment for such return as above provided, may take judgment for the value of the property replevined; in which case such value shall be assessed by the jury on the trial, or by a writ of inquiry as the-case may require. But this section shall not apply to cases where the property replevined has been distrained.”

Although this provision is less specific and imperative than the portions of the present Code above quoted, the court said, at page 42 : “ Wherever a defendant in a replevin suit is entitled, under the pleadings, to try the title to the property, and, in case he succeeds, is entitled, under such pleadings, to a return of the-goods, he is bound to try the title in such suit, and to take a judgment therein for a return or the value of the goods. 2 Rev. St. p. 531, § 55.. And he should not be permitted to forego the remedy at hand, and to seek his redress in a cross suit. Morris v. De Witt, 5 Wend. 71.”

Under the present statutes we think the same conclusion follows a fortiori. For these reasons the judgment should be reversed, and judgment absolute for dismissal of the complaint should be directed in favor of the defendant (appellant), with costs.