author: HARDIN, P. J.

text:
    Jennie Petrie v. Trustees of Hamilton College.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Deed—Description op property conveyed.
    A deed of the right to divert “the waters of Kirkland Glenn Brook whiph runs over my land ” does not oonvey the right to divert the waters of two brooks running over the grantor’s land, neither of which was known by any name, and which, after leaving plaintiff’s land united and formed a stream not known by any name before the execution of the deed but designated therein, as "Kirkland Glenn Brook.”
    Appeal from judgment for defendant on report of referee.
    Henry F. Coupe, for appellant.
    C. D. & Seth G. Adams, for respondent.
   HARDIN, P. J.

Plaintiff was the owner of a farm of 55 acres, described in the complaint.

The referee finds

“Two small brooks have for some years flowed, and do now flow, across said farm. The source of, each of these brooks is a spring upon the land of one Scollard, some distance above the land of the plaintiff. That said springs are over 500 feet apart, and have no connection, and the brooks from them flow down and across the land of the plaintiff over 500 feet apart, and continue to flow separate and apart for about three-quarters of a mile from their sources, when they join below the land of the plaintiff, and flow in one stream, about two miles, to Oriskany Creek. Until the making of the writing hereinafter mentioned, such stream had no name, and was designated in such writing as the ‘Kirkland G-len Brook.’ Neither of the brooks flowing across the plaintiff’s land had any kn wn name.”

From the quotation just made, it is very clear that the referee was of the opinion, as the evidence warranted him in finding, that there were “two brooks” flowing across the plaintiff’s land. In the instrument of July 26, 1894, the language is of a grant of “the right, privilege, nd easement to take from and divert the waters of Kirkland Gltn Brook, which runs over my [his] land in the town of Kirkland, county of Oneida, sufficient to supply the Hamilton College Waterworks, to be constructed.” Scanning the language just quoted, it is apparent that the paper described only one “brook.”

In Groat v. Moak, 26 Hun, 381, affirmed 94 N. Y. 120, it vas said:

“We must take into consideration the situation of the parties, the state of the country and of the thing granted, at the time of the grant, to ascertain the intention of the parties. * s * The intent, of course, when ascertained, will control in this construction.”

In the course of the opinion delivered in affirmance, it was ■said:

“It is very clear that the grantor in that deed, for the small consideration then paid by the grantees, did not mean to cripple the large and valuable factory by depriving it of any water power it might need to propel its machinery.”

Looking at the surrounding circumstances of the plaintiff at the time he executed the instrument of the 26th of July, 1894, as well as looking at its exact language, it seems unreasonable to put a construction upon the instrument which he executed that shall carry away from him the waters of the south spring. A construction that allows the defendant to take, in virtue of the instrument, the waters of Glen Brook, or the north spring, feeding the waters of Glen Brook, seems to give significance to all the language used by the grantor in the instrument. ■ The expression “waters of Kirkland Glen Brook” is descriptive of one brook only; and it is a familiar rule that a conveyance should be so construed as to give force and effect to all the language used; and the other rule is equally clear “that nothing will pass by a deed except what is described in it, whatever the intention of the parties may have been.” Thayer v. Finton, 108 N. Y. 397, 13 St. Rep. 778. In Coleman v. Improvement Co., 94 N. Y. 232, it was said, viz.: “Nothing passes by a deed except what is described in it, whatever the intention of the parties may have been.” Upon a careful inspection of the instrument, and of all the evidence before the referee, it seems that he would have been warranted in reaching the conclusion that the waters of the south spring were not granted to the defendant by the instrument which the plaintiff executed. The language used by the learned referee s ems to have been somewhat restrictive when he says: “Upon the evidence given upon the trial I find and decide that the plaintiff has failed to make out and main ain his alie ed grounds and causes of action, or either of them, and that his complaint should be dismissed.” He does not find specifically, as matter of law, just what was covered by the instrument executed by the plaintiff. Perhaps, however, that is necessarily inferred from his deciding to dismiss the complaint. However that may be, I am inclined, for the reason; intimated above, to favor a reversal and a new trial.

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

All concur.


source: Caselaw Access Project

author: FOLLETT, J.

license: Public Domain

text:
    Abby Warfield v. New York, Lake Erie and Western Railroad Co.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Carriers—Injury to passenger crossing track.
    The rule requiring a person before crossing a railroad at a highway to stop and look and listen for approaching trains does not apply to persons who are crossing the track on a walk at a station for the purpose of boarding a train.
    Appeal from circuit court, Steuben county.
    Action by Abby Warfield, as administratrix of Chester Warfield, against the New York, Lake Erie & Western Railroad Company, to recover damages for the alleged negligent killing of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions, deendant apeals.
    James H. Stevens, for appellant.
    Randolph Horton, for respondent.
   FOLLETT, J.

This action was begun October 5, 1894, to-recover damages for the alleged negligent killing of the plaintiff’s husband by the defendant. October 5, 1892, the plaintiff’s intestate was run over and killed by one of defendant’s cars at its passenger station at the village of Addison.. Defendant” double-track railroad extends easterly and westerly through the village of Addison, having its two main tracks on the south side of the passenger station. On the north side of that station, and about 280 feet east of it, a track called a “lead track” or “cross over” branches from the most northerly of the two main tracks, and diverges northerly therefrom, and crosses a gravel walk at a point about 150 feet west of Tuscarora street, which is also about, the same distance from the passenger station. This lead track or cross over connects the main track east of the station building with a side track known in this case as the-“platform switch.” Another side track, called in this case-the “hill switch,” diverges from the platform switch. These two side tracks are connected with the main tracks at a point about six or seven hundred feet west of the station. Tuscarora street extends northerly and southerly through the village, crossing the defendant’s main tracks at a point-about 300 “feet east of its passenger station. The Eagle Hotel is on the west side of Tuscarora street, and a few rods north of the railroad. On the west side of this street there is a sidewalk which crosses the railroad. For 30 years the defendant has maintained a gravel walk extending westerly from the Tuscarora street sidewalk along the north side of' the main tracks of the railroad, for the convenience of persons going to and from the passenger station. This gravel walk is crossed by the lead track or cross over at a point about midway between Tuscarora street and the passenger-station. The plaintiff’s intestate left the Eagle Hotel for-the purpose of taking train No. 29, which arrived at that station-at 10:20 a. m. To reach the station, it was necessary for him to pass over this gravel walk lying on the north side of defendant’s main tracks, and crossing the lead track at a point about 150 feet west of Tuscarora street, and 150-feet east of the passenger station, as before stated. While he .was in the act of crossing the lead track, he was struck by a freight car which was being backed westerly on that track. An east-bound way-freight train, No. 90, arrived at that station at about 9:45 a. m. It became necessary for this train to place a gondola car on the hill switch. Part of the freight train was backed from the main track westerly onto the lead track far enough so that the gondola could be shoved or “kicked” onto the most northerly of the side tracks — the hill switch. After doing this, the train was to go onto the platform switch for the purpose of attaching some cars to it. The witnesses sworn in behalf of the plaintiff testified that, after the gondola had been left on the hill switch, the train moved eastwardly on the lead track, the locomotive being at the east end of the train, then stopped, and again backed westwardly on the lead track, for the purpose of entering on the platform switch, and ran over and killed the1, plaintiff’s intestate. The defendant’s theory was, and the witnesses called testified that there was no eastward movement of the train after the gondola was detached front it at some point east of the place where the gravel walk crossed the lead track. This was the only question of fact presented on the trial.

The learned trial judge, in submitting this question to the jury, said:

“The witnesses for the plaintiff who testified upon that subject say that they were standing at the end of the lawn, between the easterly end of the railroad station building and the west side of the lawn; that they Avere a hundred or so feet from the place where the switches cross the walk; that they saw Warfield coming along the walk; that he Avas coming toAArards them, going Avest; that at that time this portion of the train Avhich was being switched was on the northerly main track, and Avas going to the east away from Warfield. That, they say, was the condition of affairs Avhen Warfield turned from Tuscarora street to go west towards the station. If that was the condition of affairs, of course the impression that would have been conveyed to Warfield’s mind, if hesaw that in that way, was that this train was going away from him, and there was no special danger to be apprehended from it. That must necessarily be the fair inference, if you find that was the fact. They say that Warfield continued to the west, and this train changed its direction, and came up behind him; and before he had any notice, without any signal being given (there is no claim that any signal was given of any kind whatever, except as I shall call to your attention in a moment), he was struck by the car, and knocked down and killed.”

The learned judge then called attention to the testimony of the defendant’s employes on the train which was to the effect that the train did not move forward to the east after it left the gondola on the SAvitch. This question of fact was fairly submitted to the jury, under instructions Avhich, so far as this issue is concerned, Avere not excepted to, and was found for the plaintiff. It is conceded that there Avas no person at or near the point where this graArel walk crossed the lead track whose duty it Avas to give notice to persons of the approach of trains. No bell was sounded nor whistle blown giving notice of the approach of this train. No employe was stationed on the rear end of this train to give notice to persons of its approach. Under these circumstances, the issue of fact having been found in favor of the plaintiff, the eAridence justified the conclusion of the jury that the d -fendant was negligent in the management of this train, and that by reason of such negligence, the plaintiff’s intestate AAras killed.

The learned counsel for the defendant insists that the evidence does not show that the plaintiff’s intestate did not, by his own negligence, contribute to the accident. The witnesses who saw the decedent approaching the station testified that they did not see him look to the east or to the west for the approach of trains, but that he traveled on this gravel walk westerly towards the passenger station, looking straight ahead. The rule which .requires a traveler on a highway which crosses a railroad to look and listen for approaching trains is not applicable to persons who are crossing a track on a walk of the railroad at a station for the purpose of going to the station to become a passenger. Terry v. Jewett, 78 N, Y. 338; Brassell v. Railroad Co., 84 N. Y. 241; Thomas, Neg.243 et seq.

At the close of the evidence, the defendant’s counsel moved for a nonsuit, on the grounds that the plaintiff had failed to prove facts sufficient to constitute a cause of action, that the evidence was insufficient to justify the jury in finding that the defendant was negligent, that the decedent was not shown free from contributory negligence, and that the evidence showed that he contributed by his own negligence to the accident. The motion was denied, and the defendant excepted which was the only exception discussed by the learned counsel for the appellant on this appeal. No exception was taken to the charge, except to the submission of the question whether the deceent was free from contributory negligence. In submitting the question of the contributory negligence of the decedent, the jury was instructed that, in the situation in which he was placed, he was not bound as a matter of law to look and listen for the approach of trains, but whether he was negligent under all circumstances was a0question of fact for them to determine.

I think the evidence justified the submission of the case to the jury,and that the judgment and order should be affirmed with costs. All concur.


text:
    Louisa Bennett v. Julia G. Lyndon.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Executors and administrators—When appointment relates back.
    A widow of a decedent who makes an agreement for the settlement of a claim against the estate and is afterwards appointed administratrix cannot sue to set aside such agreement as her appointment as administratrix relates back to the time of the agreement.
    Appeal from judgment on report of referee.
    Action by Louisa Bennett, as administratrix of William P. Bennett, deceased, against Julia G-. Lyndon, personally and as executrix of Francis Lyndon, deceased. The complaint was dismissed, Avith costs, and plaintiff appeals.
    On the 26th of March, 1894, William P. Bennett entered into a Avritten lease Avith the defendant, as executrix of Francis Lyndon, for certain premises situated in the town of Macedón, for the term of one year from the 1st of April, 1894,, agreeing to pay a yearly rent of $225. In that lease Avas a. clause AA’hich gave the landlord a lien as security for the rent in the folloAving language: “The said party of the first part shall have a lien as security for the payment of the rent aforesaid, upon all the goods, wares, chattels, implements, fixtures, tools, and other personal property AAdiich are or may be put on the said demised premises, and such lien may be enforced on the nonpayment of any rent aforesaid, by taking and selling such property in the same manner as in case of chattel mortgage on default; such sale to be made upon six days’ notice, by posting the same in some public place on the premises, and serving it upon the party of the second part, personally or by mail, directed to him at Macedón, N. Y.” The schedule attached to that instrument, covering a portio of the property thus mortgaged, contained the following language: “All of the crops which are soAved or planted, of every name or nature, and all hay cut from said place, all fruit of every name grown upon said premises during said term.” Bennett Avent into possession of the property under the lease, and continued in possession until the 26th day of June, 1894, AArhen he died intesstate. Louisa Bennett, at the time of his death, resided on another farm several miles from her husband, William P. Bennett. And it is found by the referee “that on or about the 6th day of July, 1894, the said Louisa Bennett and said defendant entered into an agreement by which said Louisa Bennett did surrender and deliver unto said defendant said demised and leased premises, and all crops then groAving thereon, and by which, in consideration of the payment to-the defendant by said Louisa Bennett of the sum of fifty dollars ($50.00) on or about the first day of December, 1891$ and the said surrender by said plaintiff as aforesaid said defendant released the personal property hereinbefore described in finding of fact No. 6 from the lien of said chattel mortgage”; also, “that therefore, and in pursuance of said agreement said defendant entered upon said demised premises, and occupied the same during the term of said lease, and caused said demised premises to be cultivated and the crops raised theron to be marketed, for her benefit; also, “that in entering into said agreement Avith said Louisa Bennett, on said 6tli day of July, 1894, and in taking possession of said demised premises, as aforesaid, said defendant did not practice any deceit or fraud, or make any false or fraudulent representations to the plaintiff, in any way whatsoever." It was also found by the referee “that on the 21st day of December, 1894, the plaintiff sold at public auction" the personal property mentioned and described in finding of fact No. 6.” In finding of fact No. 6 it is found, viz.: “That said William P. Bennett removed and put upon said demised premises one horse, a lumber wagon, one democrat wagon, one top buggy, two open buggies, one pair of bob sleds, one cutter, one fanning mill, one reaper, one mower, one work bench, one set of carpenters’ tools, one set of double heavy harness, one set light single harness, three plows, and other agricultural implements and household furniture.” It was also found, vis.: “That thereupon, and on the 6th day of July, 1894, the defendant had a good and subsisting lien upon the personal property described in finding of fact No. 6, under and by virtue of said indenture of lease.”
    Henry M. Field, for appellant.
    D. W. Forsyth, for respondent.
   HARDIN, P. J.

Plaintiff brings this action on the equity side of the court, and seeks to set aside an arrangement made on the sixth day of July, 1894, by her, with the defendant. Plaintiff’s letters of administration were not issued until the 25th day of July, 1894. The evidence given at the hearing indicates that a settlement and adjustment were made, without any fraud or deceit, as found by the referee; and the evidence satisfactorily supports the findings of fact made by the referee in respect to the adjustment made. Carey v. Smith, 5 App. Div. 505.

In Vroom v. Van Horne, 10 Paige, 557, it appeared that a bill, was filed by the same person who afterwards obtained administration to avoid her own deliberate act, and the chancellor observed in respect thereto:

“This, I think, a court of equity ought not to permit her to do, even if that act was unauthorized. * * * The grant of administration has relation to the death of the intestate, and it legalizes all intermediate acts of the administrator. Thus, where.the administrator, before he had taken out letters of administration upon the estate of the intestate, delivered a horse to another for his expenses in burying the decedent, and afterwards brought trover for the horse, it was decided by a majority of the judges of the court of king’s bench that the action could not be maintained; for, say they, it is directly against, his own agreement and contact, and the plaintiff himself in (a particeps criminis if anything is done amiss; and it is not reasonable that he should be allowed to bring his action against the defendant for doing a thing to which he not only consented, but jointly acted therein with the defendant.”

In Priest v. Watkins, 2 Hill, 225, a note belonging to the estate of the intestate was paid to his widow. She subsequently united with another in taking out letters of administration, and they then brought an action upon the note in their representative capacity, and it was held that, notwithstanding the provisions of the Revised Statutes as to executors de son tort the letters related back to the time of the intestate’s death, and therefore the payment to the widow was a bar to the action.”

Upon the facts and circumstances disclosed in this case, we think a court of equity ought not to allow the plaintiff to overhaul the settlement which she deliberately made, without any fraud, with the defendant. Besides, it appeared upon the trial that there was an equitable ad justment made between the parties, and that the defendant has, by means of the settlement, obtained no more than was equitably her due from the intestate, and by reason of the terms of the lease, and that the defendant surrendered such lien or rights as she had to enforce the collection and payment of the rent reserved in the lease. The findings of fact made by the referee, as already intimated, are warranted by the evidence delivered before him. We have looked at the rulings eritciised by the appellant, and do not find that any error was committed by the referee which requires as to interfere with the conclusion which he reached upon the hearing. We think the referee’s report should be sustained.

Judgment affirmed, with costs. All concur,


author: HARDIN, P. J. WARD J.

text:
    Isaac Edwards v. Buffalo, Rochester and Pittsburgh Railway Co.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Railroad companies—Fencing track—Persons in possession.
    Defendant railroad company which has a traffic arrangement with another railroad company, by which it is permitted to run a train daily over the road of such other company, is not a person in possession of the road (Laws 1892, chap. 676, sec. 32), so as to be liable for injuries to stock caused by failure to keep the track fenced. Ward, J., dissenting.
    Appeal from trial term, Erie county.
    Action by Isaac Edwards against the Buffalo, Rochester & Pittsburgh Railway Company to recover for two horses killed by defendant’s locomotive. From a judgment entered on a verdict directed for plaintiff for $446.46, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.
    Plaintiff alleges that at the time of the occurring of the injuries alleged in the complaint to the plaintiff’s property, to wit, on the 2d of November, 1893,-“the defendent above named was running its trains over a portion of a line of railroad owned by the Lehigh Valley Railway Company; that said defendant at that time was running its trains over said road by virtue of an agreement made by said defendant for that purpose, and said defendant was a lessee of said road for the purpose of running its trains over said road as aforesaid, and said defendant was in lawful possession of said road for the purpose of running its trains over said road as aforesaid; ® ® * that said line of railroad crosses Seneca street, in said city of Buffalo, about one-eighth of a mile westerly of its intersection with Bailey avenue; ® ® ® that along the southerly line of said railroad, between Seneca street and Bailey avenue as aforesaid, there is no fence;” and there was no fence on the 2d of November, 1893, when the plaintiff’s two horses were killed, having escaped from the yard of the plaintiff “by reason of there being no fence along said line of railroad as aforesaid, as required by chapter 565 of the Laws cf 1890, as amended by chapter 367 of the Laws of 1891, and by chapter 675 of the Laws of 1892, of the State of New York, said horses strayed upon said railroad, and said horses were run over and killed.” At the close of the plaintiff’s evidence, the defendant moved for a nonsuit, on the grounds (1) that no cause of action was shown; and (2) no negligence on the part of the defendant was shown. The motion was denied, and an exception was taken. At the close of the entire evidence, the defendant asked the court to direct a verdict upon the same grounds as those upon which the motion for nonsuit had been made. Its motion was denied, and an exception was taken. Thereupon the plaintiff moved for a direction of a verdict for the plaintiff, and the court directed a verdict for the plaintiff for the value of the horses and interest from Novmber 18, 1893, to wit, $446.46. A motion was made by the défendant for a ne»w trial oh the minutes, which was denied.
    Henry G. Danforth, for appellant.
    Frank W. Saunders, for respondent.
   HARDIN, P. J.

Whether the dejendant is liable for the injuries sutained by the plaintiff must be solved by a consideration of section 32 of the railroad law, being chapter 676 of the Laws of 1892. In that section it is provided as follows:

“Every railroad corporation, and any lessee or other person in possession of its road, shall, before the lines of its road are opened for use, and so soon as it has acquired the right of way for its roadway, erect and thereafter maintain fences on the sides of its road of height and strength sufficient to prevent cattle, horses, sheep and hogs from going upon its road from the adjacent lands with farm crossings and openings with gates therein at such farm crossings whenever and wherever reasonably necessary for the use of the owners and occupants of the adjoining lands, and shall construct where not already done, and hereafter maintain, cattle-guards at all road crossings, suitable and sufficient to prevent cattle, horses, sheep and hogs from going upon its railroad. So long as such fences are not made, or are not in good repair, the corporation, its lessee or other person in possession of its road, shall be liable for all damages done by their agents or engines or cars to any domestic animals thereon ”

Apparently, the language of the section declares the duty enjoined against three parties: (1) A railroad corporation; (2) any lessee of the corporation; and (3) other person in possession of its road. We are called upon to say by the evidence, in order to support the contention of the respondent, that the defendant is a lessee of the road, or that it was in possession of the road at the time of the injuries complained of. No written lease was produced authorizing the defendant to take possession of the unfenced road, nor requiring it to pay rent for the use of the real estate; nor was there any evidence authorizing it to take possession of the Lehigh Valley road.

The several statutes preceding the act of 1892 are referred to in Thorne v. Railroad Co., 88 Hun,. 144, 68 St. Rep. 308. In the course of the opinion delivered in that case it was said:

“ We are of the opinion that the word ‘agents/ in the statute, has reference only to the agents of the corporation or person operating the road, and that neither the engines nor cars which in this case caused the damages, nor the employees operating them, can be said fo be the agents of the defendant.”

Respondent calls our attention to Tracy v. Railroad Co., 38 N. Y. 433. When that case was decided, the statute provided that every railroad should maintain fences on the sides of their roads; and it was there held that the defendant “ was essentially an owner and operator of the road over which its cars passed, and therefore liable for the injuries which wTere sustained.” The case is quite distinguishable from the one before us.

The respondent calls our attention to Burchfield v. Railway Co., 57 Barb. 589, which was decided in 1870. In that case it appeared that the defendant waS running a railroad belonging to another corporation, “and using it for the ordinary purposes of a railroad, for its own benefit, under and by virtue of a written agreement with the owners, and for a period of time only fixed by the terms of a lease made to another corporation, and assigned to the, defendant, who agreed to pay the rent reserved in said lease. “ And in that case it was held that the defendant was a lessee of the road, within the meaning and intent of the act of 1854, which amended the act of 1850 by extending its provisions to any lessee of any railroad. In that case it appeared very clearly that the defendant was in possession of the railroad upon which the injury happened, and that such possession was under the written lease assigned to it; and therefore it was properly held that it was within the expression found in the statute, “a lessee,” and-therefore bound to comply with the provisions of the law requiring fences to be erected by the owners or lessees. By the use of the words “any lessee or other person in possession of its road,“ the legislature •evidently intended to visit upon a lessee or a receiver in possession of the road the same burden as was cast by the antecedent part of the section upon the owner; and the history of the legislation since 1850, referred to in Thorne v. Railroad Co., 88 Hun, 144, 68 St. Rep., 308, seems to warrant the conclusion that the duty was cast upon a party having the actual possession of the road. The evidence fails to show that the defendant was in actual possession, or was a lessee of the road, at the time the injuries were occasioned. There is nothing in the case to indicate any negligence on the part of the defendant. We are of the opinion that the evidence is insufficient to sustain the right of recovery against the defendant. We therefore think the exceptions are well taken to the refusal of the opinion for a nonsuit, and to the direction of a verdict for the plaintiff.

Judgment and order reversed, and a new trial ordered, with costs to abide the event. All concur, except WARD, J., dissenting.

WARD J.

(dissenting). The statute known as the “Railroad Law” (section 32) made every railroad corporation and any lessee “or other person in possession of its road” liable under certain conditions for killing or injuring animals upon railroads that were not fenced as the statute requires. The defendant had a traffic arrangement with the Lehigh Valley Railroad Company, whereby it was permitted to pass a train daily over the Lehigh road in connection with its business as a railroad corporation. When that arrangement was made, and when the plaintiff's horses strayed upon the track, and was killed by the defendant’s train. I think the statute under consideration should receive a fair and liberal construction. Its purpose evidently was to make any railroad corporation liable that was using an unfenced track upon which animals were killed by its trains. It was not necessary that the defendant should have had exclusive possession of the Lehigh road. It was only necessary that it should have the right of possession and an actual possession for the purposes of its train. With all due respect, I think the view taken by the majority of the court gives too limited a construction to the statute,, and defeats the purpose of the legislature in enacting it.


author: HABDIN, P. J.

text:
    Matter of Vandevort’s Estate. Matter of Garlock.
    (Supreme Court, Appellate Division, Fourth Department.
    July 30, 1896 )
    1. Executors and administrators—Liabilities—Loans on personal security.
    An executor who loans money of an estate on personal security is liable for interest thereby lost to the estate.
    3. Bonds—When payable.
    A bond conditioned to pay money to the obligee’s grandson on a certain day or in case of the death of the grandson before the time, to a certain, other person, does not on the death of the grandson before such time, require the sum to be paid forthwith.
    3. Wills—Legacies—Payment out oe proceeds op real estate.
    Testator devised to his grandchildren living in Michigan all his real and personal property in that state, and gave various sums to his children and grandchildren living elsewhere, stating that it was his intention to-make their shares equal, he having theretofore made advances to theqi. The residue of his estate, both real and personal, he directed to be equally divided among his children and grandchildren. Held, that it was testator's intention that the legacies should be paid in full before any division of the residue should be paid. Bevan v. Cooper, 72 N. Y. 317? distinguished.
    Appeal from surrogate’s court, Ontario county.
    Judicial settlement of the accounts of Peter Oarlock as one of the executors of the will of Thomas Vandevort, deceased. From the decree entered in the proceedings, PeterGarlock, as executor, and T. Spencer Vandevort, individ,. uallv and as executor of the will of Cornelius Vandevort. deceased, and Clarence S. Vandevort and Gilbert M. Vandevort individually and as executors of the estate of Thomas Vandevort, appeal.
    November 20, 1894, Peter Garlock, executor, etc., appealed from a decree of the surrogate of the county of Ontario entered on 30th day of July, 1894, and from the who] e thereof; having on the 2d of November filed exceptions to the findings of fact and conclusions of law made by the surrogate, and filed in his office on the 30th of July, 1894. To Spencer Vandevort, individually and as executor, etc.,, on the 30th of July, 1894, filed exceptions to the rulings and findings made by" the surrogate; and on January 2, 1895, he appealed “from so much and all that part of the decree of the surrogate’s court of Ontario county, made and entered in the above-entitled proceeding on the 30th day of July, 1894, as in substance and effect, adjudges and decrees that the sum of $1,000, secured to be paid in and by the mortgage of Cornelius Vandevort to said Thomas Vandevort, deceased, dated October 5, 1880, * * to said Thomas W. Vandevort on April 15, 1897, or, in case of the decease of the said Thomas W. Vandevort before that date, to be paid to the executors, administrators, or assigns of said Thomas Vandevort, deceased, does not become due or payable to the executors of the said Thomas Vandevort, deceased, until the said 15th day of April, 1897.” He also appealed from that part of the decree “as, in substance and effect, adjudges and decrees the proceeds of the homestead farm, of 204 acres of land, mentioned in the sixth clause of the testa- or’s will, in the hands of Peter Garlock, the accounting executor, are charged or chargeable with the payment of the several legacies given and bequeathed -in the first, third, fourth, and fifth clauses the testator’s will, as the same are modified, are by the codicils thereto; this appellant claiming that said legacies, so as modified by the codicils are not, nor is either of them, charged upon, or payable out of, said homestead farm, or the proceeds of its sale, in the hands of the said executor, that in this respect, also, the said decree. is erroneous.” He also states that “in all other respects and particulars this appellant will affirm the validity of the said decree on this appeal.” Extensive findings of fact were made by the surrogate, and form the basis of the decree settling the accounts of the executor. It is suggested that Sarah E. Emery has died since the appeal was perfected, and her personal representatives have been substituted. Thomas Vandevort died in December 26, 1880, leaving a last will and testament and three codicils. The will was dated August 4, 1875, and the codicils were dated, respectively, February 4, 1878, June 12, 1879, and June' 16, 1879; and they were admitted to probate, and an inventory was filed, April 28, 1884. He left aboiit $20,000 of personal property, and a homestead farm, containing 204 acres, lying near the village of Phelps, known as the Horton or Van devort Farm.” Also another piece lying on the pre-emption road in the town of Phelps, containing about 14 acres of land, commonly called the “Blinn Place.” There was a contest before the will was admitted, and temporary administrators Avere appointed. The testator left, him surviving, his Avidow, Ella Vandevort; his son Gilbert M. Vandevort; his son Cornelius Vandevort: his son T. Spencer Vandevort; Sarah E. Emery, a daughter; Maria Garloclc, a daughter (Avife of the executor); and Albert T. Vandevort and Ellen Vandevort, children of Andrew P. Vandevort, a deceased son of the testator. He also had several other grandchildren at the time of his death.. Numerous litigations have ensued in respect to his estate, and many facts and details relating thereto appear in the folloAving reports: Garloclc v. Vandevort, 5 N. Y. Supp. 737 (special term opinion, delivered by Adams, J.), affirmed 58 Hun, 601, 33 St. Rep. 1035, affirmed 128 N. Y. 374, 40 St: Rep. 418, Matter of Vandevort, 62 Hun, 612, 43 St. Rep. 695, it Avas held, among other things, that the surrogate’s court had jurisdiction to construe the codicils and will, in order to determine the rights of the parties in the distribution of the réstate. And in Garloclc v. Vandevort, 128 N. Y. 374, 40 St. Rep. 418, it was also held that the surrogate had authority to construe the provisions of the will, and determine their meaning and validity, when necessary to make his decree as to distribution. See, also, Garloclc v. Vandevort (Sup.) 12 N. Y. Supp. 955.
    S. S. Partridge and E. K. Burnham, for appellant executor.
    Thomas H. Bennett, for appellant T. Spencer Vandevort.
    John S. Andrews, Wynkoop & Rice, and J. A. Robson, for respondents.
   HABDIN, P. J.

Peter Garloclc, the executor, complains of the surcharge of $1,020 made by reason of his improper conduct in the sale of the farm of 204 acres in virtue of the power conferred in the will. Upon a careful perusal of the evidence which was taken in the surrogate’s court, we are of the opinion that it sustains the conclusion that the sale avus collusive, and that the evidence fully sustains the conclusion upon it reached by the surrogate. And we are of the opinion that as matter of law, upon the facts found by him, the executor was properly surcharged by the surrogate with $5 an acre, the difference between the price which the executor received for the farm, and the actual value of the farm as found on the evidence, conflicting to a large extent though ' it was, before the surrogate. Gardner v. Ogden, 22 N. Y. 327; Forbes v. Halsey, 26 N. Y. 65; Colburn v. Morton, 5 Abb. Prac. (N. S.) 315, 325. In the other course of the opinion delivered in the case last cited, numerous cases are referred to, and it was said by Davies, J. viz.:

“Where a purchase has been made in violation of these principles, the cestui que trust, or those who may have succeeded to his rights, can either apply to have the sale set ■ aside, or may affirm the sale and charge the purchaser with ; the actual value of the lands purchased, as was done in the notable case of Buildings Co. v. Mackenzie, 8 Brown, Parl. Cas. 42.”

2. We are of the opinion that the evidence before the surrogate’s court warrantéd the surrogate in surcharging the 1 per cent, interest upon certain notes mentioned in the decree, which the executor had, in violation of his duty, taken. It is quite evident that he was willing to oblige members of his family more readily that he was to follow the strict rules of law in the admistration of the assets of the estate. In re Scheideler’s Estate, 75 Hun, 185, 58 St. Bep. 596. When the executor undertook to loan the funds of the estate upon personal security, and disregard the law relating to trustees, which requires special classes of security to be taken, it is quite evident that he had as a motive the accommodation members of his family. Under such circumstances, we think it was very proper that the surrogate should surcharge him the interest which by his misconduct was lost to the estate. King v. Talbot, 40 N. Y. 76; Adair v. Brimmer, 74 N. Y. 539; In re Myers, 131 N. Y. 409, 43 St. Rep. 265; In re Goetschius’ Estate, 2 Misc. Rep. 284. If he had the paid the moneys upon the legacies, instead of loaning the same, he would have come nearer vigilant discharge of his duty as executor. Brown v. Bickets, 4 Johns. Ch. 304.

3. At the time of the death of the testator, he was the owner of a bond and mortgage made by Cornelius Yandevort to him, dated October 5, 1880, to secure the payment of the sum of $8,000, purchase money of premises described in the mortgage. The mortgage contained a clause declaring it to be a security for the payment of the sum of $8,000, purchase money, with interest thereon, according to the condition of a bond. In the bond were the conditions of payment, in the following language:

“The condition of this obligation is such that if the above-bounden Cornelius Yandevort, his heirs, executors, or administrators, shall and do well and truly pay or cause to be paid unto the above-named Thomas Vandevort, his certain attorney, executors, administrators, or assigns, the' sum of seven thousand dollars, in sixteen equal annual payments,, with annual interest on all sums due and remaining unpaid-no principal or interest to be paid, however, till April 1,. 1882, when the first payment of principal shall become due, with interest on the whole sum from this date,—and shall pay to my grandson (his son) Thomas W. Vandervort on April 15, 1897, one thousand dollars, without interest, or if,, in case of the decease of my grandson Thomas W. Vandevort before that date, he shall pay said thousand dollars to my executors, administrators, or assigns. * * * ”

The testator died December 26, 1880. On the 28th of June,. 1885, his grandson Thomas W. Vandevort died in infancy and intestate; he being the person to whom, by the condition of the bond, the $1,000 was payable on April 15, 1897, without interest. Cornelius Vandevort, the' mortgagor, died September 18, 1885, and letters testamentary under bis will were issued to T. Spencer Vandevort, December 10, 1885; and on November 5, 1887, T. Spencer, as executor of Cornelius, contracted to sell the mortgaged premises to Edwin K. Burnham subject to the lien, however, of the mortgage, and Burnham, immediately transferred his contract to purchase to Abram Garlock. On November 12, 1887, Abram Garlock made ■ a payment on the mortgage. On the 18th day of March, 1889,. Peter Garlock, as executor, executed a satisfaction piece, in which it was declared that the mortgage was redeemed and paid off, satisfied and discharged, “except the sum of one thousand dollars, which becomes due April 15th, 1897, and the said mortgage is valid to secure the same,” which discharge was recorded in the clerk’s office of Ontario county. The appellant T. Spencer Vandevort requested the surrogate-to find, viz.:

“That upon the death of the said Thomas W. Vandevort the alternative clause in the bond of said Cornelius Vandevort, mentioned in the thirty-first finding of fact, operated to make said $1,000 due and payable immediately to the executors of said testator, mortgagee, Thomas Vandevort; and the account of said executor, Peter Garlock, should be surcharged with the sum of $1,000, together with interest thereon from the 28th of June, 1885, the date of the death of the said Thomas W. Vandevort.”

The surrogate refused the request so made, and an exception was taken. The same appellant also requested the surrogate to find that it was the duty of the executor to collect such $1,000, and to receive and reduce the same to money, should opportunity be offered to him to do so, and that he should have collected said mortgage in the menth of March, 1889, and that his account should be surcharged with the sum of $1,000, with interest from April 1, 1889. This request the surrogate also refused, and the appellant took an exception to such refusal.

We think the contention of the appellant, that by the death of Thomas W. Yandevort on the 28th day of June, 1885, the ' $1,000 mentioned in the mortgage became presently due, cannot be sustained. The specification of April 15, 1897, as the time for the payment of the $1,000, is clear and definite; and the provision in the bond is to the effect that it shall be payable at that date, and Avithout interest. No other specific time is mentioned.for the payment of the $1,000. After menjtioning the date that the $1,000 should be paid, to Avit, April 15, 1897, Avithout interest, the bond contains the following :AArords: “Or if, in case of the decease of my grandson Thomas . W. VandeATort before that date, he [the mortgagor] shall pay ¡said thousand dollars to my executors, administrators, or assigns.” The effect of the last quoted language is to change the party who shall receive the payment, but it does not «change the time AAdien the payment shall be made by the mortgagor or obligor. Undoubtedly, it is the duty of the court to put itself, in giving construction to the instrument, as near as may be in the situation of the parties, and view the surrounding circumstances, and bear in mind the occasion and apparent object of the parties, and therefrom determine the meaning and intent of the language employed in framing their agreement. Dent v. Steamship Co., 49 N. Y. 390-395; Smith v. Kerr, 108 N. Y. 31-37, 13 St. Rep., 115; Kennedy v. Railroad Co., 67 Barb. 169. In this case the transaction was between father and son. The son’s circumstances, to some • extent, had become embarrassed, and evidently required the conciliatory and accommodating terms which the father consented to give to him in the adjustment of the indebtedness due from the son to the father, and a liberal extension of the terms of payment was agreed upon between them. In that same spirit of liberality, it is fair to suppose that the father consented to postpone the payment of $1,000, which he provided should be made to his grandson, to a period of time when he should arrive at the age of 21 years, to Avit, on April 15, 1897. HoAvever, the father contemplated the possibility that the grandson might die, and caused a clause to be inserted that, if he should die before the lapse of that time, then in that event the $1,000 should fall into the hands of the father’s estate. Suppose Thomas W. had died a few days or a few months after the execution of the mortgage; would it be reasonable to suppose that it was the intention of the father that the $1,000 should immediately become due? On the contrary, Ave are of the opinion that lie named a future date with a view of being lenient to Cornelius, his son, who assumed the large indebtedness by the execution of the mortgage, and that the father humored the son by postponing the payment of $1,000 until the arrival of the date mentioned, to wit, April 15, 1897. Evidently the father by allowing to be inserted in the bond the words,1'or-if, in case of the decease of my grandson Thomas W. Vandevort before that date, he [mortgagor or obligor] shall pay said thousand dollars to my executors, administrators, or assigns,” contemplated the lapse of time and the probable occurrence of his death before the 15th of April, 1897, and therefore caused the language to be used which would cover a contingency very likely to happen, to wit, the death of the father. And the change of the party to whom the $1,000 was to be paid was to take place in the event of the death of Thomas W. before that date, and the language may be read as though it had been written “The mortagagor shall then pay to the executors, or their assigns, of the father, if Thomas does not survive until the date mentioned for the payment of the $1,000, without interest.”

Nor do we think there is any controlling force in the contention of the appellant that the surrogate should have-charged the accounts of the executor with interest upon the $1,000 from April 1, 1889, because of the omission of the executor to enforce the mortgage. The evidence relied upon to support such a contention is not satisfactory, and we are of the opinion that the surrogate properly omitted to charge the executor with dereliction of duty in having failed to collect the bond and mortgage before, by the terms thereof, they were due, as already intimated. We therefore find no-occasion to disturb the conclusion reached by the surrogate in respect to the $1,000 secured by the mortgage of Cornelius Vandevort.

4. Testator, by the terms of his will, gave to his wife the household furniture and household effects, and provided that she should receive during the term of her natural life the interest at 7 per cent, on $5,000, to be paid by his executors. In the second clause of the will he devised to his grandchildren living in Michigan at the time of his death all' his real and personal estate, of every name and nature, that he should own at the time of his death in the state of Michigan. By the third clause he gave to his grandchildren who should be living at the time of his death, except those living in Michigan, and except Albert Vandevort and Ellen Vandevort, the sum of $1,000 each, “to be paid to such of them as shall have become twenty-one years old within one year after my decease, and to be paid to those who are under twenty-one years old at my decease at the time that they, respectively,. attain their majority.” In the fourth clause he gave to his grandchildren Albert Vandevort and Ellen Vandevort the sum of $1,500, to be paid to them within one year after his decease, “if they shall have then attained the age of twenty-one years old. If they shall not have become twenty-one years old at the date of my decease, said sum shall bear interest at six per cent, per annum from that date until they, respectively, attain that age.” In the fifth clause of the will he gave to his daughter Maria Garlock the sum of $3,000,. and to his daughter Sarah E. Emery the sum of $1,200, and to his son Gilbert M. Vandevort the sum of $500, “to be paid them, respectively, within two years from my decease, which sum shall bear interest from and after one year from my decease.” Following that provision is the following languages

“It is my desire and intention hereby to make the shares of my children, respectively, equal; and, having made advances of various sums of money to each of my sons and daughters, and above bequests are made to equalize the amount received by each from me.”

The sixth and seventh clauses of his will contain the following language, vis.:

“I give, bequeath, and devise all the rest, residue, and the remainder of my property, both real and personal, including the proceeds of my homestead farm of two hundred and four acres of land, which I desire my executors to sell, to be equally divided between my children and my grandchildren who shall be living at my decease, share and share alike. Seventh. I hereby nominate and appoint my son-in-law Peter Garloek ® * * and my son Gilbert M. Vandevort * ® ® executors of this my last will and testament, with full power and authority to sell and convey any and all my real estate of which I shall die seised and possessed, to pay off the said legacies, and to make the proper division of my property as herein provided. * * *

The will was executed on the 4th, day of August, 1875, and on the 4th of February, 1878, he made a codicil to the will,, in which he declared that it was his intention that the legacies to his grandchildren provided in the third section of the will should be paid to them at the times therein mentioned, but with no interest on the amount of said legacies, or any of them. He also canceled the legacy of $1,200 given to Sarah E. Emery; declaring that he had, since the making of the will, advanced that sum to her. On the 12th of June, 1879, he made another codicil, revoking the legacy to Albert Vandevort, and giving and bequeathing to him, instead thereof, “the sum of three thousand dollars, to be paid within one year after my decease, if he shall then have attained the age of twenty-one years, or, if he is not twenty-one years old at my decease, to be paid to him when he shall have reached that age, but without interest.”

From the provisions of the will quoted, it is quite apparent that the testator contemplated that there must be a considerable lapse of time before the will could be fully executed; and the language used by the testator would seem to indicate a disposition to distribute his entire estate, both real and personal, among his children and grandchildren in such a manner as to be in accordance with the plan to distribute the whole of his estate, both real and personal, and that to carry out each and every part of the plan was essential to complete execution of his intentions in respect to the several members of his family. To effectuate such purpose, he conferred power and authority upon his executors “to sell and convey any and all my [his] real estate of ivhich I shall die seised and possessed, to pay off the said legacies, and to make the proper division of my property as herein provided. Considerable significance should be given to the words, “to pay off the said legacies, and to make the proper division of my [his] property as herein provided.” Those words seem to be in harmony with the general intent of the testator that all of his legacies, and all of the provisions made for the several members of his immediate family, as well as his grandchildren, should be carried into effect. These words Avere used folloAving the provision in the sixth clause of the Avill, authorizing his executors to sell the homestead farm, of 204 acres and providing that the proceeds thereof “be equally divided between my [his] children and my [his] grandchildren who shall be living at my decease, share and share alike.” In Re James, 80 Hun, 371, 61 St. Rep., 794, it Avas said that, where legatees named in a Avill are relatives of the testatrix, the court will presume the existence of a desire on the part of the testatrix that all parts of her estate shall be made liable for the payment of such legacies. The language of the will seems to Avarrant the conclusion that it Avas the intention of the testator that the legacies should be paid in full, and that the residue and remainder of his estate should be divided in accordance with the language used in the sixth clause, wherein he says, after providing for the sale of a certain portion of his real estate, that the “rest, residue, and remainder of my property, both real and personal, including the proceeds of my homestead farm, of two hundred and four acres of land Avliich I desire my executors to sell, to be equally divided between my children and my grandchildren Avho shall be living at my decease, share and share alike.” In the course of the opinion delivered by Smith, P. J., in Scott v. Stebbins, 27 Hun, 338; affirmed 91 N. Y. 605, he said;

“It is hardly to be conceived that the testator contemplated that any part of the proceeds of the real estate should be distributed between his sons, as a surplus, until their legacies were paid in full. In other words, it is to be presumed that he intended that the real estate should be applied to the payment of their legacies, before there could be any remainder of the proceeds of the real estate to be divided between them.

In the course of the opinion delivered in the court of appeals in that case (page 614, 91 N. Y.), it was said:

“The presumption is, he meant the legacy to be paid; that he did not intend to go through the mere form of bequeathing a legacy to his own son, without leaving something to pay it with. He evidently intended the legacy should be paid, under all circumstances.”

It appeared in that case that the testator, at the time the will was drawn, was the owner of considerable personal property, which he had inventoried in December previous to making the will at a large amount. And it is further said in the course of that opinion, viz.:

“So far as we have been able to ascertain, there is no case in this state adjudging real estate not chargeable with the payment of legacies solely on the ground of a previous devise.

We think this last expression is an answer to the suggestion made in the argument of the learned counsel for the appellant, that the fact that the testator had devised his real estate in Michigan was an indication that he did not, by the subsequent language used, intend to have the proceeds of the real estate known as the “Home Farm” used in payment of the legacies. The language of the testator seems too indicate that he intended that the real estate (the home farm) should be sold, and that the proceeds should be treated as a fund for distribution. Under such circumstances,- the doctrine of equitable conversion would apply. Stagg v. Jackson, 1 N. Y. 206; Horton v. McCoy, 47 N. Y. 25; Taylor v. Dodd, 58 N. Y. 335; Kalbfleisch v. Kalbfleisch, 67 N. Y. 354; Le Fevre v. Toole, 84 N. Y. 95; Shipman v. Rollins, 98 N. Y. 324; McCorn McCorn, 100 N. Y. 513,3 N. E. 480.

Appellant calls our attention to Bevan v. Cooper, 72 N. Y. 317, in which case the general rule was laid down that the personal estate is the primary fund for the payment of legacies, and that it is the only fond, unless express direction •or clear intent is found in, and may be gathered from, the will, in connection with the surrounding circumstances. In the' course of the opinion delivered in that case, it it was said:

“It is of much moment, too, that the residuary clause provides for those who had a claim upon his forethought, —his widow and his children, —while the legacies sought to be charged are to strangers to his own blood, and having no-claim upon him, unless it be that of faithful service, or the remote one of relationship to a first wife, and that of former domicile in his household. * * * Courts haAre often struggled to find the reason in a aau.11 for charging upon the real estate devised a legacy to a child, and it is in the same line not to be too ready to make the estate devised to them subject to a legacy to another not of the testator’s kin.”

We think that case is quite distinguishable from the one in hand.

Nor do we think Morris v. Sickly, 133 N. Y. 456; 31 N. E. 322, aids the contention of the appellant. In that case the-will gave two money legacies, and then disposed of her-residuary estate. At the time the Avill was made she owned, no real estate, and a year afterxrards she purchased certain real estate, and it Avas held that the legacies were not a charge upon the real estate. There Avere no words in the Avill directing a sale “to pay off the said legacies, and to> make the proper division of my property as herein provided,” which are found in the will before us.

Upon looking at Burns v. Allen, 89 Hun, 552; 35 N. Y„ Supp. 342, it is found that there Avas no indication in the terms of the will of an intention to charge the legacies upon the real estate of the testatrix, and it was held that the extrinsic circumstances did not indicate an intention of the testatrix to charge the legacies upon the realty. We ' finding nothing in the opinion inconsistent Avith the vieAVS stated here. ‘

We reach the conclusion that the learned surrogate Avasright in determining “that the proceeds of the testator’s realty, of aaTlícIi lie directed a sale, as Avell as his personal estate, are applicable to the payment of the general legacies,” and that “the money arising from the sale thereof became legal assets in the hands of the executor, Avlien receiAred by him, and for Avhieh, as such executor, he Avas bound to account as personal estate. The intent and direction of the testator to sell the land Avas absolute, or out and out’ for all purposes” (Stagg v. Jackson, 1 N. Y. 212),—and that the surrogate had authority to construe the provisions of the Avill determining their meaning and validity in order to make a decree of distribution (Purdy at. Hayt, 92 N. Y, 446 ; Garlock v. Yandevort, 128 N. Y. 374,40 St. Rep., 418; Cahill v. Russell, 140 N. Y. 408, 55 St. Rep., 805; In re Bolton, 146 N. Y. 260, 66 J Rep., 630, Baldwin v. Smith, 3 App. Div, 350, 38 N. Y. Supp. 299). The foregoing víbavs lead to the conclusion that the decree of the surrogate’s court should be affirmed.

Decree affirmed, with costs and disbursements allowed to respondent Emery against Peter Garlock personally, and with one bill of costs and disbursements in favor of respondents Clarance S. Vandevort and Gilbert 11. Vandevort, payable out of the estate. All concur.


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    Rochester and Kettle Falls Land Co. v. John O. Roe.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    1. Equity —Adequate remedy at law—Pleading.
    The defense that plaintiff in an equitable action has an adequate remedy at law is not available unless it is pleaded.
    2. Specific performance—Discretion of trial court—Review.
    The exercise of the discretion of the trial court in granting or refusing specific performance is reviewable on appeal, unless the rules governing such discretion have been followed.
    Appeal from judgment on report of referee.
    Action by the Rochester & Kettle Falls Land Company against John O. Roe. There was a judgment in favor of plaintiff, and defendant appeals.
    Action for specific performance of two contracts set out in the complaint, executed by the defendant with one William C. Wait for the purchase, by the defendant, of three several lots,—one lot No. 49 in block 29 in the Central addition to Kettle Falls, in Stevens county, state of Washington, for the sum of $500, payable in three equal installments of $166.06 each, bearing date the 20th day of November, 1890. The other contract was dated on the 29th day of November, 1890, and was for the purchase of lots 7 and 8 in block 16 in the Central addition to Kettle Falls, in Stevens county, state of Washington, for the sum of $800, payable in three equal installments of $266.66 each. On the first contract two installments of the purchase price of said lot had been paid, with accrued interest to May 20, 1891, leaving the last installment of $166.66, with interest from May 20, 1891, unpaid. On the second ■ contract the first two installments of the purchase price of lots 7 and 8 were paid, with accrued interest to May 26, 1891, leaving the last installment of $266.66, with interest from May 26, 1891, unpaid. The referee finds that on the 10th of April, 1891, Wait, by two instruments in writing, assigned to the plaintiff all his right, title, and interest in and to the two several contracts aforesaid; and also finds .that at the time of the execution of the contracts Wait had title to the land described in the contracts, and that on the 22d of February, 1892, by deed, he conveyed the same to George H. Smith, in whom the title vested, and on the 25th of November, 1893, the plaintiff tendered to defendant a warranty deed of said three lots, executed by George H. Smith, and at the same time tendered the defendant a release of said lots from a lien of a mortgage thereon executed by the mortgagee, and offered to deliver them to defendant upon j)ayment of the amount due on said contracts; that the defendant refused to accept such deed and release, or to make the payment due from him to the plaintiff under his said contracts. The referee found as conclusion of law: “(1) That the plaintiff is entitled to enforce against the defendant all the rights of said William C. Wait under the said contracts; * * * (3) that the plaintiff is entitled to judgment in its favor and against the defendant, for the specific performance of the said two contracts by the defendant, and requiring the defendant to pay to the plaintiff the unpaid installments thereon, with accrued interest, together with the taxable costs of this action, upon the tender to him of the deed and release aforesaid. * * * ” The defendant filed exceptions to the several conclusions of law stated by the referee. The plaintiff is a domestic corporation organized in September, 1890, at Rochester, under the Laws of 1848, and the acts amending the same, for the purpose of “ purchasing, taking, holding, and possessing real estate and buildings, and selling, leasing, and improving the same,” with a capital stock fixed at $500,000, in shares of $100 each, with 13 trustees. Soon after its organization it purchased for its said purchasers 905 acres of land at Kettle Falls, upon the Columbia river, in the state of Washington. Defendant, in his answer, admit that he executed two contracts, copies of which are annexed to the complaint, and marked “ Schedule A” and “Schedule B,” and he alleges that shortly prior to the execution thereof the defendant entered into an agreement with the plaintiff, through its officers and agents, whereby the .company agreed to sell the defendant the building lots described in said contracts, and he alleges that he has paid on the lots $533.33, and that the lots were sold to the defendant by the plaintiff “through said Aris, Ranger, and Morley, and others of its officers, managers, and agents, who represented to defendant that this plaintiff owned said property and lots, and defendant knew nothing of said Wait, or that he held the titles to the lands of the plaintiff, until after defendant had agreed to buy said lots, and when the contracts were presented by said plaintiff for execution.” The answer also alleges that: In the year 1890 one John W. Goss, in connection and associated Avith William B. Aris, Harvey Hoag, W. H. Dick, L. C. Huber, Charles W. Robinson, George S. Horley, and others, obtained the option upon a tract of uncultivated, wild, and forest lands situated in Stevens county» in the state of Washington, for the purpose of converting said lands into a town site, and dividing them into building lots, and with a view of organizing and promoting a stock company at Eochester, N. Y., for developing and selling of the same. The said tract of land consisted of about 1,000 acres, and was purchased through said Goss for about the sum of $25,000. That on or about the 20th day of October, 1890, said John W. Goss and Flora A. Goss, his wife, purported to sell said tract of land to said Charles W. Eobinson, for the sum of $135,750, and executed a deed of said lands to said Eobinson, and said Eobinson thereupon executed to said Goss in return a mortgage upon said land in the sum of $105,750, and it was agreed between them that $30,000 of said purchase price was to be paid in money, and said deed and said mortgage were thereupon recorded in said Stevens county, state of Washington, and the name adopted by said promoters for said lands and town site was Kettle Falls, and said town site has since been known by that name. ® That on or about the 22d day of October, 1890, said Eochester & Kettle Falls Land Company, through said Aris, Dick, Hoag, Eobinson, Goss and others, purported to purchase said tract of land at Kettle Falls of said Goss for the sum of $450,000, as appears by the minutes of the secretary of said company, and said purchase price consisted of the mortgage on the property of $105,750, and capital stock of the company to the amount of $300,000 was to be paid to said Goss and others, and the balance of about $40,250 was agreed to be paid in money. That said lands were purchased by said company upon the above conditions, and in order to carry out said purchase said Goss, through said Charles W. Eobinson, on or about the date aforesaid, executed and dlivered a deed of said lands to one William C. Wait, subject to said mortgage, said company assuming said mortgage, and said Wait was designated by said company by resolutions of its directors, to hold the title to said lands, for the reason that said company, being a corporation, could not legally hold title to lands in the state of Washington; and the said plaintiff has not at any time held the title to said land, or any part thereof, and has not acquired through said Wait or otherwise a clear and merchantable title to said lots in question, or to said lands, or any portion thereof. The answer enumerates several false and fraudulent representations alleged to have been made 6 Tor the purpose of inducing people generally, and this defendant in particular, to purchase lots, and did induce this defendant to make the purchases aforesaid.” The answer further alleges that the lands, at the time they we're purchased by the plaintiff, were not Avorth the amount said promoters agreed to pay for them, “and have not since been Avorth that amount nor are said lands Avorth more iioav than the mortgage upon them of about $28,000, and said lands have no value other than that of ordinary Avild and uncultivated land in the state of Washington.” It is also alleged that the plaintiff ceased to develop or improve said lands, and what improvements had been made were allowed to fall into decay, “and the feAV people and settlers who have located in said toAvn, OAving to the desertion of said enterprise by this plaintiff, are rapidly leaving and deserting the same.” The ansAver further alleged, viz.: “That said plaintiff represented to the purchasers of lots, and to this defendant in particular, and agreed with said plaintiff, through its directors, and managers, that the schedules of prices for lots fixed by said company at the time this defendant purchased said lots were to be maintained by the company until its lots Avere sold; Avhile on the other hand, said company, soon after this defendant purchased said lots, entered into fraudulent arrangements Avith its directors, Avhereby special prices and enormous discounts Avere given its directors and said promoters, and said company entered into a further fraudulent contract Avith certain of its directors and said promoters, avIio formed a syndicate called and knoAvn as the ‘Northwestern Investment Company,” to which this company plaintiff sold a large portion of its highest-priced lots at a small percentage of the schedule prices of said lots, thereby enabling said purchasers to offer lots at prices far below the price agreed to be paid by this defendant. * * * That said Wait, Avho held the title to said lands for the plaintiff, was one of its promoters, and also its secretary (and a member of said fraudulent syndicate, said NorthAvestern Investment Company), and at all times acted as the agent and representative of said plaintiff; and that said George H. Smith, to whom it appears said Wait transferred the title to said lands for said company, has since said transfer been a director and officer and manager of this plaintiff. That the contracts upon which the action is brought were at the time they were executed the property of said company, this plaintiff, and have at all times belonged to this plaintiff, and that said Wait Avas said plaintiff’s agent in taking said contracts; and that this defendant on divers occasions prior to the beginning of this action, demanded of this plaintiff that said contracts be rescinded, and that he be relieved from the obligations under the same. That the facts above stated as to the fraudulent management, dealings, and representations of said plaintiff were not known to this defendant until after he had made the payments aforesaid upon .said contracts.”
    Charles Roe, for appellant.
    James G. Greene, for respondent.
   HARDIN, P. J.

Newton v. Bronson, 13 N. Y. 587, holds that the supreme court may compel the specific performance by a resident of this state of a contract for the conveyance of land lying out of its jurisdiction; and numerous cases are cited in support of the proposition by Denio, J., at page 591 in the opinion. That case was cited and approved in Gardner v. Odgen, 22 N. Y. 339. The power to enforce the specific performance of a contract was asserted and exercised in Rochester Land Co. v. Davis, 79 Hun, 69, 61 St. Rep. 661. In Tucker v. Railway Co., 78 Hun, 442, 61 St. Rep. 644, it was held: “A defendant in an equitable action can not avail himself of the defense that the plaintiff. has an adequate remedy at law, unless it is pleaded in the answer,” and numerous cases are cited in support' of the proposition. In Railroad Co. v. Johnston, 84 Hun, 90, 65 St. Rep. 206, the rulé was reasserted, and it was said, viz.:

“This rule simply prevents the defendant from availing himself as a matter of right of the existence of the defense that the plaintiff had an adequate remedy at law." When the ■defendant has failed to interpose this defense, and the trial court refuses to dismiss the equitable action on ihat ground, the refusal cannot be urged by the defendant as error on appeal. But the trial court may,in its discretion, dismiss .an equitable action on the ground that the plaintiff had an-adequate remedy at law, though the defendant failed to interpose that defense, but, since legal and equitable remedies have been administered in the same court, this discretion has seldom been exercised.”

The answer in the case at hand does not contain a defense that the plaintiff had an adequate remedy at law. And therefore, according to the doctrine laid down in Railroad Co. v. Johnston, supra, if the trial court refuse to dismiss the action on that ground, “the refusal cannot be urged by the defendant as error on this appeal.”

Upon the hearing before the referee a question for the exercise of judicial discretion as to whether there should be a specific performance of the contracts alleged in the complaint was presented for determination.

In Margraf v. Muir, 57 N. Y. 158, it was said:

“When a contract for the sale of lands is fair and just and free from legal objection, it is a matter of course for courts of equity to specifically enforce it. But they will not decree specific performance in cases of fraud or mistake, or of hard and unconscionable bargains, or when the decree would produce injustice, or Avhen such a decree Avould be inequitable under all the circumstances,”—citing 2 Story, Eq. Jur. sec. 769; Will. Eq. Jur. sec. 62; Osgood v. Franklin, 2 Johns. Ch. 1; 14 Johns. 527; Seymour v. Delaney, 6 Johns. 222; 3 Cw. 445.

In Sherman v. Wright,'49 N. Y. 231; it Avas said:

“The specific execution of a contact in any case is a matter not of absolute right, but of sound discretion in the court.

In Miles v. Iron Co., 125 N. Y. 294; 35 St. Rep. 14, it Avas held:

“The right to a specific performance of a contract by the decree of a court of equity rests in judicial discretion, and may-be granted or withheld upon a consideration of all the circumstances.”

It is said in section 233 of Fry on Specific Performance, viz.

“There are many instances in Avhich, though there is nothing that actually amounts to fraud, there is nevertheless a Avant of that equality and fairness in the contract Avhich, as Ave have seen, are essential in order that the court may exercise its extraordinary jurisdiction in specific performance.” The same learned author says (section 255) viz.:

“It cannot, hoAvever, be denied that there are cases in Avhich the court has refused its interference by reason of events subsequent to the contract.”

And again the same author says (section 256):

“Where the subsequent events alleged for this purpose are-acts of the plaintiff himself, or events in some sense Avithin his poAver, the court may have regard to them in exercising its discretional jurisdiction in specific performance.”

When the defendant entered into the contracts Avith Wait for the purchase of the lots, it is quite evident that the plaintiff Avas the beneficiary of -the title. Rochester Land Co. v. Daviss, 79 Hun, 69; 61 St. Rep. 661.

In the fourth and fifth subdivisions of the contracts is inserted the folloAving language, giving options to the A'endor, viz.:

“(4) It is expressly agreed that time is the essence of this contract, and in case default shall be made by the party of the second part, his heirs or assigns, in any of the conditions above stipulated to be performed by him, then, and in that case, this contract shall become void, and the party of the-second part have forfeited his rights hereunder, and any payments that shall have been made shall become forfeited: to the party of the first part, as well as all buildings or other improvements upon said premises, which said payments and improvements and buildings it is hereby especially agreed shall in that case be deemed as damages hereby liquidated for the nonperformance of this contract by said second party. (5) No filing herein shall be construed to entitle said second party to possession of said premises until the delivery of a deed therefor, as herein provided.”

The evidence does not indicate that the defendant ever had possession of the lots in question, or that he ever derived any benefits from or under the contracts. The land ivas forest land, covered with timber, which was expressely reserved to the vendor by the insertion in the contract of the following language:

“The party of the first part reserves all the merchantable timber now standing upon said premises, with the right to enter upon said premises, and cut and remove the same.”

The language is so broad that it does not seem to limit time within which the removal shall be made. According to the testimony of the defendant, his negotiation for the lots was with Aris and Ranger, who were connected Avith the corporation, and they represented to him that the “company owned this tract of land,” and the defendant did not learn that the .title was in Wait until the contracts were made out and presented to him to sign, and then the officers of the company “explained that it was done in order to comply with the law, which prevented a corporation from owning lands there, and the title had to be vested in one-person’s name. He further testified:

“There was a great deal said about the value of the property. They described the property to me as having been laid out into streets, and cleared off, and a great many stores going up there already, and that it was quite a large town at that time, growing very rapidly, and the property was increasing in value; that there was a Avater power, AAThich was a valuable adjunct to the toAvn, and that there Avere valuable mineral deposits near the town. They said that one of the main trunk line railroads run near Kettle Falls, and that arrangemens had already been made with the road to run a branch into Kettle Falls. They said that a ferry Avas to be constructed across the river, and that, they Avere going to have a court house right aAvay, and a large school building Avas to be built, and that it Avould be a city in a very short time. All the public improvemnts, laying out the streets, putting in the ferry across the river, and utilizing the water power there. They said they proposed to' have electric lights in a short time, and that the streets would be paved. * * They said schedule prices' of the lots would not be any cheaper than they Were at that time. Mr. Aris stated to me that the schedule prices would be increased.”

Harvey Hoag was called as a witness for the defendant, an he testified to the organization of what was known as the Northwestern Investment Company, composed of several of the directors of the plaintiff; and the referee refused to allow him to state how lots were selling prior to the organization of the investment company, and an exception was taken to the ruling. The witness stated that he had knowledge that lots were sold prior to the formation of the investment company, and he adds: “It was understood by the directors that the prices should be maintained. And he states that no lots were sold after the organization of the investment company. The witness stated further: “I think they were sold at all prices, without regard to schedule or anything.” Upon motion of the plaintiff’s counsel that Avas stricken out, however, and an exception Avas taken by the defendant. It appeared by the evidence that Aris occupied the positon of general manager and treasurer of the plaintiff, and was one of its directors and trustees, and that he Avas a member of the first board of directors, and he continued so throughout the year. It was shown by the evidence that Robinson, Aris, and Morley belonged to the Northwestern Investment Company. The company purchased a large number of lots “at a price far beloAV the schedule prices.” The evidence of the Avitness Roe on that subject, hoAvever, Avas, on a motion of the plaintiff, stricken out, and an exception Avas taken by the defendant. It seems that all but two of the directors Avere members of the Nortlnvestern Investment Company, and Wait became secetary of that company, and it purchased from plaintiff 350 lots at $150 per lot, and payment therefor AAras made by crediting it on the $105,000 mortgage. It was not an incorporated company. It Avas a partnership or “syndicate.” All its members Avere stockholders of the plaintiff, except one. Some etudence Avas given tending to sIioav that there was an arrangement among the board of directors prior to the organization of the investment company, by Avhich special discounts Avere alloAved to the directors. According to an entry made in the journal of the plaintiff under date January 23, 1891, the sale of the 350 lots Avere authorized by resolution adopted December 11, 1890, for $35,000. There appears an entry also in the journal of that date, viz.: “Mr. Morley represents a syndicate of buyers, for Avhich he acts as secretary. All the papers are only just being sent for record. The sale Avas consummated .and lots selected Dec. 15th, 1890.” On the following pages of the journal “are the numbers and a designation of the lots sold to the syndicate." It appears in the evidence that the plaintiff brought an action against the investment company, claiming some $100,000, for fraud in the sale of the investment company. That suit, however, Avas subsequently discontinued, and the appeal book does not indicate very clearly how it was disposed of. In the complaint in the action brought by this plaintiff against the syndicate is found •an allegation: “That Avhen it became generally known that .such a syndicate existed, the public faith in this plaintiff •and its said enterprise Avas greatly impaired, and the value of said real estate'depreciated, and the plaintiff was greatly damaged in consequence."

From the facts and circumstances which Ave have already quoted, as well as others appearing in the case, we are of the opinion that the learned referee fell into an error when he reached the conclusion that, according to the principles of equity, a proper case was made out for the enforcement of the contracts. Stokes v. Stokes, 148 N. Y. 764. It is contended, hoAvever,- by the learned counsel for the respondent, that “the propriety of specific performance is a matter for the discretion of the trial court unrevieAvable on appeal”; and he calls our attention to Kelso v. Lorilard, 85 N. Y. 184, Avhere the remark was made in the course of the opinion by Hiller, J., viz.:

“It may be remarked that this.AAras a matter Avithin the province of the court beloAV to determine, and the exercise of its discretion in this respect should not be disturbed unless clearly wrong."

We think that this does not militate against the discretion of this court to reA'ieAv the discretion of the trial court. Attention is also called to Dunckel v. Dunckel, 141 M. Y. 434, 57 St. Rep. 618. In the course of the opinion there delivered it was said:

“There is a further rule that the specific performance of contracts rests largely in the discretion of the equity courts; not Avholly, but in a discretion to be governed by rules which have become established for the guidance of such courts. That, again, is a rule to be generally administered in the equity courts. So far as they exercise their discretion, violating no fixed rules of equity,' such discretion is not revieAvable here."

That case falls far short of the position claimed by the respondent in the case in hand. We think some of the rulings made by the learned referee, which have been incidentally referred to, were someAvhat doubtful. However, as the vieAvs we have already expressed lead to a reversal, we need not protract this opinion to discuss them.

Judgment reversed, and a a new trial ordered, with cost8 to abide the event.

All concur.


text:
    Susan Dorr, as Administrator, v. John G. McCullough et al.

    (Supreme Court, Appellate Division, Fourth Department.
    July 30, 1896.)
    Contributory negligence—Evidence.
    A nonsuit will not be disturbed on the ground that plaintiff did not show freedom from contributory negligence, though the circumstances point as much to absence of contributory negligence as to its presence.
    Action by Susan Dorr, as administratrix of Peter Dorr, deceased, against John Gr. McCullough, John King, and Eben B. Thomas, as receivers of the New York, Lake Erie & Western Railroad Company, to recover damages for the alleged negligent killing of plaintiff’s intestate. Plaintiff was non-suited, and moved for a new trial, on exceptions ordered to be heard by the appellate division in the first instance.
    The intestate was struck by the pilot beam of an engine attached to a train of cars operated by defendants upon their tracks at the intersection of such tracks with William street. The Erie tracks crossed William street in the easterly portion of the city of Buffalo. There is a sidewalk on the north side of William street, from Queen street eastward. The train causing the injury was passing eastward on the south track. There was some evidence given tending to show that it was going at a speed of 22 to 25 miles an hour. There was a flagman’s shanty stationed near the crossing, and it is nearly straight across from the point where Queen street opens in to Wiliam street. There is a line of telegraph poles along the tracks extending west from the point where the collision occurred, and there is another line of poles, telegraph or telephone, on the south side of William street, and wires strung on top of them extending west from the crossing; and on the same side of the street are short trolley poles from 12 to 15 feet high. There was evidence tending to show that the poles, to some extent, would obscure one’s vision looking to the west along the tracks. It seems that the intestate was passing eastward on the north side of William street, as he approached the crossing. The witness Rhor says the intestate, when he was struck, Avas on the southeast side of the east-bound track on the north side of William street. “The man was on the sidewalk just about a foot on the outside of the south rail of the eastbound track. That was the furtherest rail to the south. Witness was going towards the intestate first on Queen street; suav him cross the street toAArards the sideAvalk; and he saw the intestate and Wagner join, and as they came from a point where they joined each other, they came towards the tracks on the north side of the sidewalk The witness saw them walking along towards the tracks, kind of slow. The witness adds that he saw the intestate turn his head towards the train, looking westward towards the train, and he adds; “When he got there, he started on a run across the tracks, and he (Dorr) kept on the sidewalk; and the boy jumped straight across that track, and that brought him nearer to the street, shortened the track, and Dorr kept on the sidewalk, and that made a longer turn than the boy had. Likely, it made ten or twelve feet further than Dorr had got to clear than the boy had. The boy jumped across the track and ran. He couldn’t tell exactly, but as' close as he could judge, they were along there between the two tracks. He might have been on the Avestbound but he could not tell exactly the spot. He didn’t measure it to the inch. As Dorr was struck, he was a foot or thereabouts south of the rail, outside of the track on which the engine Avas coming. The pilot beam where they put the flag in on top of the pilot, the beam projects out a foot or so further than the rail. He had cleared the rail, and this beam struck him.” There Avas evidence that the flagman Avas present, and was engaged in the discharge of his duty, and that he, seeing the danger the deceased was in hallooed to him. The Avitness further testified: “When Dorr and Wagner got down to the tracks or thereabouts, Dorr turned his head to the west, the way the train Avas coming. He kept on a couple of steps more at the usual gait they were going, but it seemed, Avhen the train came closer to him, he (Dorr) ran. The distance from the point where he was between the two rails of the tracks themselves when he turned his head was about three feet to the eastbound track.” In the course of the cross-examination, the witness said: “From the time witness saAV Dorr coming towards him, he didn’t turn his head at all until he got on the westbound track, or betAveen the Avest and eastbound tracks. When he turned and looked at the train, he did nothing, but kept on a slow walk toAArard the eastbound track. Dorr turned his head back, and took a step or íavo, and then he (Dorr) Avent on a run. He began to run before he reached the east-bound track. Mr. Dorr began to run betAveen the Avest and eastbound tracks along in there. He continued to run until he passed the eastbound track. Then he stopped and Avas hit, and that was all one could say; he stopped, or it seemed he did.” The witness Wagner testified, aúz. : “Joined Dorr about the middle of Queen street, on William street. From there he went with Mr. Dorr across the tracks. After he [Wagner] started from the mddle of Queen street, he walked down to the tracks, and stopped to see if any trains were coming. It was west of the two tracks. That would be west of the westbound track that he stopped. He was on the sidewalk. He stopped to look if there were any trains coming. He didn’t see any. He next started for over the tracks. When he stopped, he was about ten or fifteen feet from the westbound track. From the point where he stopped to see if there was any train coming, he started off for over the tracks and got in the middle of the east-bound track; and the flagman hollered, and he looked up, and over his right shoulder, and saw the train coming, and he gave two or three steps, and he was over the tracks. * * * The flagman was around here- somewhere when he hollered. * * * The flagman was about twelve feet from him. Witness was between the rails of east-bound track. He had to jump about four feet to get clear of the rails.“ At the close of the evidence, the defendant moved for a nonsuit, on the grounds: (1) That the plaintiff has not made out a cause of action; (2) that the plaintiff’s intestate is not shown to be free from contributory negligence; (3) that it appears that the plaintiff’s-intestate lost his life in part at least through his own negligence; (4) that the plaintiff took the risk of crossing this track in front of the approaching train, which he could see- and hear himself, and the consequences of the risk furnish no cause of action to the plaintiff here. The court granted the motion for nonsuit. Plaintiff thereupon took an exception, and the exceptions were ordered heard in this court in the first instance.
    Parker & Alexander, for plaintiff.
    Sprague, Moot, Sprague & Brownell, for defendants.
   HARDIN, P. J.

Plaintiff was burdened with the duty of showing that the intestate was free from contributory negIgence. No direct proof of freedom from negligence of the intestate was given, and the facts and circumtance disclosed did not warrant a finding by the jury that the intestate was free from contributory negligence. If we could assume upon the fact that it was sufficient to raise a doubt whether the intetestate was free from contributory negliigence, and that the circumtances pointed as much to the negligence of the deceased as to its absence, or that the circumstances point in neither direction, we should not be permitted to say that the nonsuit was erroneous. Wiwirowski v. Railway Co., 124 N. Y. 420, 36 St. Rep. 405. After a careful study of the evidence, we are of the opinion that this is not a case where the court could reaonably “shut its eyes v. Railroad Co., 4 App. Div. 549, 38 N. Y. Supp. 1009. It may be regretted that the intestate was inconsiderate and incautious in his apprach to the crossing, but, according to» the rule of law laid down in the case to which attention has been directed, it must be held that the nonsuit was properly granted, and the exceptions overruled, and judgment ordered in favor of the defendants.

Plaintiff’s exceptions overruled, and motion for a new trial denied, with costs. All concur.