text:
    MARY F. HENKEL, Respondent, v. JACOB MURR, Appellant.

      Landlord — liability of, to a stranger injured by reason of a defect in the hall through which he is passing to visit a tenant — notice of the defect must be given to the landlord to rendes• him liable — evidence.

    To render tlie owner of a building, the rooms in which are rented to different tenants, liable for the injuries sustainedby a person who, while visiting one of the tenants, caught her heel in a hole in the oil-cloth laid upon the stairs in the hall, it must be shown not only that the fall was occasioned by the dangerous condition in which the oil-cloth was left, but also that the landlord neglected, after having had knowledge or notice of its dangerous condition, to repair the same, or that he omitted to use reasonable means and precautions to ascertain its condition and make the requisite repairs.
    ¡Evidence that some time after the accident the landlord had put new oil-cloth upon the stairs, held to be inadmissible.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from .an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Brewster Kissam, for the appellant.

      Charles W. Brooks, for the respondent.
   Davis, P. J.:

The appellant was the owner and landlord of the tenement in which the plaintiff had called for the purpose of seeing her sister, who was one of the -tenants of the building. There were several tenants of separate rooms, all using in common a single hall and the stair-cases therein leading up to their rooms. To neither of the tenants was the hall and stair-case demised; but the right of each to use the same for ingress and egress to and from their rooms was equal. The circumstances of the case as well as the testimony show that the control of the hallway and stair-cases remained in the appellant as landlord, and that it was his duty to keep the same in reasonably good condition as to safety, etc., for the use of the several tenants. One of these uses was the right of ingress and egress of persons lawfully calling upon the tenants for business purposes or as friends for social purposes. It is a correct rule of law •to state that the same measure of liability for injuries sustained by negligence of the landlord extends to one socially visiting or calling upon a tenant as protects the tenant himself, because the use of the hall and stair-case for the purpose of enjoying such visits and calls is by necessary implication (where not expressly provided for) within the reasonable intent of the demise of the rooms. • Hence the plain tiff in this case in calling upon the tenant of the appellant was within the scope of the protection against the landlord’s negligence, and is entitled to the application of the same rules, if damnified by his negligence, which the tenant could invoke in his or her own behalf.

■ The evidence tended sufficiently to show that the appellant, as landlord of the tenant, had undertaken to preserve the second flight of stairs in the common hall, by putting down thereon an oil-cloth which covered the length and width of the stairs. He was, therefore, under obligation to take care that the oil-cloth did not become dangerous to persons having the right to usé it in passing to and from the rooms of his tenants, by reason of any negligence on his part. But to charge him as landlord, it was necessary to show that he had neglected, after having knowledge or notice of its dangerous condition, to repair the oil-cloth with promptitude, or if he had no such notice or knowledge that he had omitted to use such reasonable means and precautions for ascertaining its condition and making requisite repairs, as his relation to it, and his duty to the tenants, and other persons lawfully using it, demanded at his hands. Whether the oil-eloth on the stairway was in such condition as to be dangerous to persons passing over it, at the time of the injury to the plaintiff, was seriously in conflict in the evidence given on the trial; but the jury found by their verdict that that was its condition. As the case was put to the jury by the charge it would seem, (and so we think the jury must have undertsood it) that the court instructed them that such a finding entitled the plaintiff to a verdict. The court said: “ Having undertaken to take care of the stairs by an oil-cloth it was his duty of course to keep it in a careful and safe manner. Now was he negligent in that respect, and was the oil-cloth in that condition which it is claimed by the plaintiff to have been in, that led to her fall and damage to her person.” An exception to this part of the charge was taken. We think this portion of the charge though probably not so intended led the jury to suppose that if they found there was a hole in the oil-cloth in which the heel of the plaintiff caught,.thereby causing her fall and injury, the defendant was liable in law because he had undertaken to take care of the stairs by using an oil-cloth, and it was therefore his duty to keep it in a careful and safe manner.”

This rule is altogether too rigid; it brings the liability of the landlord substantially to that of a warranty by contract, and subjects him to damages for any accidental derangement which may cause an injury, when actual negligence could not be found or imputed. Th'e mere fact that a hole had suddenly broken in the oil-cloth in which the next passer’s heel had tripped causing a fall and injury, would be negligence per se, under the rule of the charge, because the landlord had failed in his duty to keep the covering in a careful and safe manner, absolutely and under all circumstances. But the question is not one of contract. The liability rests wholly upon actual negli. gence in which the duty or obligation of the landlord is only an element; a most important one it is true, but by no means exclusive and controlling. In addition to that element it must appear that with some notice of the condition of things, or under some circumstances equivalent to notice such as an unreasonable omission to ascertain the condition, he had failed to make the necessary repairs or changes called for by the condition or exigency.

It was not enough therefore to find' that a hole had come in the oil-cloth in which the plaintiff’s heel caught so as to cause the fall which injured her, for in the nature of things all that might occur without just ground to charge the landlord with negligence.

Regarding the charge in that light we think the jury was very likely misled, and have awarded damages without finding the appellant guilty of the negligence that would make him legally liable.

A careful examination of the ease leads us to the opinion that the plaintiff failed as a matter of fact to prove that the landlord was chargeable with negligence in not repairing or changing the oilcloth. He was not shown to have known of the defect (if it existed, which under the evidence is doubtful), so as to have had any notice of its existence; or to have neglected his duty in not discovering it; on that question it seems the jury could not have found for the plaintiff without disregarding the strong weight of evidence.

Against the appellant’s objection and exception it was shown that some months after the accident to plaintiff the defendant had put new oil-cloth upon the stair-case. • It has been frequently held that such evidence is not admissible to show knowledge of dangerous condition at the time of the injury. The cases are very decisive on that subject. (Dougan, v. The Champlain Transportation Co., 56 N. Y., 1, 8; Baird v. Daly, 68 id., 547 ; Salters v. Delaware amd Hudson Canal Co., 3 Hun, 338 ; Morrell v. Peck, 24 id., 37.)

This evidence is supposed to have been withdrawn, but it was not. It was only the question “ did you order it to be put down? ” that was sought to be withdrawn, and the court did not.permit it to be done, the defendant objecting to such withdrawal, the jury having already heard it. The objection to the withdrawal did not cure the error, because the offer or attempt to withdraw in part, was not broad enough to take out all the witness had testified on the subject. On looking at the whole case we think justice requires that a new trial should be had. The judgment and order are therefore reversed, and a new trial ordered, with costs to abide the event.

Daniels, J., concurred ; Beady, J., dissented.

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


source: Caselaw Access Project

author: Beady, J.:

license: Public Domain

text:
      THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE WEST SIDE AND YONKERS RAILWAY COMPANY v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY OF NEW YORK.

      Taxation of the capital stock of a company —1857, chap. 456, sec. 3 — Actual value of the stock to he determined as a question of fact.

    Section 3 of chapter 456 of 1857 provides that the capital stock of every company liable to taxation, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company, which are taxable upon their capital stock under the laws of this State, shall “ be assessed at its actual value.”

      Held, that it was the duty of the tax commissioners to examine and determine “the actual value” of the stock, and that where it appeared that the stock was of no value whatever, by reason of the indebtedness of the company exceeding the value of its assets, it should not be assessed.

      It seems, that to entitle the company to deduct the assessed value of real estate held by it, it must affirmatively appear that such real estate was paid for out of the capital of the company.
    Ceetioeari issued under the provisions of chapter 302, Laws of 1859, for the purpose of reviewing the action of the tax commissioners in assessing the capital stock of the relator for the year 1882.

      Fordam Morris, for the appellant.

      George P. Andrews, for the respondent.

       Decided, May, 1883.

   Beady, J.:

After the assessment had been made in the first instance the relator applied to have the same stricken from the books, and in support thereof submitted to -the tax commissioners the following statement:

Capital stock actually paid in, or secured to be paid in.. $400, 000

Amount paid for real estate owned in fee by said corporation, describing particularly by ward numbers :

Twelfth ward, farm lands, ward No. 61____ '$48,000

Twenty-third ward, Highbridgeville, wards Nos. 14, 15 and 16....................• 135,000

$183,00

Brought forward............................. $400, 000

Less amount thereof retired in exchange for an equal amount of the stock of the New York City and Northern Railroad Company, and included in the capital stock of said company in its report.......... 390 , 000

$10,000

Amount invested in the stocks of other corporations which are taxed upon their capital................ Nothing.

Amount invested in United States securities at par..,. Nothing.

Amount of surplus earnings.............•.......... Nothing.

And claimed that as the amount expended for real estate was in excess of the capital stock that had not heen retired, nothing remained upon which an assessment could be imposed; and, further, that the capital stock had no actual value. The tax commissioners, after considering these objections, fixed the amount of the assessment at $10,000.

The method in which the capital stock is to be assessed is pointed out in chapter 456 of the Laws of 1857, and is as follows:

“ Section 3. The capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment-roll, or as shall have been exempted by law, together with its surplus profits or reserved funds exceeding ten per cent of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually, owned by such company, which are taxable upon their capital stock under the laws of this State, shall be assessed at its actual value and taxed in the same manner as the other personal and real estate of the county.”

By the method adopted by the tax commissioners in assessing the plaintiff’s property, no deduction was made on account of the amount of real estate; but the stock which was retired in exchange for an equal amount of that of the New York City "and Northern Railroad Company was deducted from the capital stock paid in, leaving a balance of $10,000 which, as we have seen, was adopted as the amount upon which the assessment was to be made.

The statute, as will have been perceived, declares that the stock of every company shall be assessed at its actual value, and taxed in the same manner as other personal and real estate of the county. The relator asserts that the stock has no actual value and is worthless, for the reason that it appears that $4,000,000 of bonds of the New York City and Northern Railroad Company cover the property of the "West Side and Yonkers Railroad Company; and this indebtedness must necessarily be considered in determining the actual value of the stock. It may not be necessary in this matter to determine whether the real estate should be deducted from the amount of the capital stock, in view of the conclusions arrived at in the consideration of this appeal; but it may be observed in passing that it does not appear by the statement made on behalf of the appellant, as correctly suggested by the learned counsel for the respondent, that the real estate was paid for out of the capital <?f the appellant. It might be, as also suggested by him, that an investment in real estate might be made by a corporation to an amount equal to or exceeding its capital stock, without the expenditure of one cent of its capital; and if that were so, it would seem that the real estate should not be deducted.

In the cases to which the respondent refers in regard to the question suggested, namely, People ex rel. The Bank of the Commonwealth v. Commissioners of Taxes (23 N. Y., 193) and The Oswego Starch Company v. Dolloway (21 N. Y., 455) it appeared that the real estate was purchased out of the capital stock. In this matter the statement is, the “ amount paid for real estate owned in fee by the said corporation; ” and from which, although this view may be regarded as hypercritical, it does not appear that it was paid for out of the capital. But, as already suggested, this is not an important element in this appeal for the reason that it seems to be established beyond peradventure that the capital stock, namely, $10,000, has no actual value. £lt is so stated by Mr. Goddard, the secretary, who swears that it has none for the reason stated in the report of the New York City and Northern Railroad Company and made a part of the return; aud this statement is predicated of the fact, already mentioned, that $4,000,000 of bonds of the railroad just referred to cover the property of the appellants. And it further appears that the New York City and Northern Railroad Company cannot be sold at any price, owing to the fact that the road has not earned its operating expenses since it was opened for business, and because there is a large debt for construction and for accrued interest on its mortgage bonds amounting to $4,000,000; and for tbe further reason that both these roads, at the time of the assessment, were in the hands of a receiver. It seems to be sufficiently established therefore that the entire assets of both companies are insufficient to pay the amount of the bonds already mentioned ; and assuming this to be the fact, the stock has no value whatever, because the amount of the indebtedness of the company is in excess of its assets.

The question of actual value is one which may be examined, and it is the duty of the tax commissioners to examine and dispose of it under the statute of 1851 (supra).

The stock is to be assessed at its actual value, as we have seen; and, as decided in the fiswego Starch Oompcmy (supra), whether above or below the nominal par, and this irrespective of its possessing a surplus capital or reserve fund. (See, also, People ex rel. Thurman v. Ryan, 88 N. Y., 142.)

The action of the commissioners should for these reasons be reversed.

Present — Brady and Daniels, NT.

Daniels, J., concurred.

Order of commissioners reversed.


author: Daniels, J.;

text:
    In the Matter of the SECURITY LIFE INSURANCE AND ANNUITY COMPANY.

      Receiver of an insolvent insurance company — Ms fees are to be fixed by the court under section 3220 of the Code of Civil Procedure — the rate fixed by section 2 of chapter 378 of 1883 is not applicable where the receiver was entitled to his fees before that act was passed — When he is entitled to commission upon the amount of moHgage incumbrances paid by Mm on the sale of real estate belonging to the trust.

    Appeal .from an order confirming the report of a referee in the settlement of the accounts of the receiver of an insurance company.
    The court at General Term said: “In support of the appeal, complaint has been made of the amount allowed to the receiver for his commissions, and it has been insisted that they should be restricted to the commissions allowed by law to executors and administrators.
    “ This proposition has been urged upon the attention of the court as a proper one to be adopted, for the reason that such receivers should be held to be receivers of moneyed corporations. And by section 2, chapter 3 of the Laws of 1842 (2 R. S. [5th ed.], 550, § 149), it was in general terms provided and declared that receivers of moneyed institutions should receive no greater or other commission or compensation for their services than such as were allowed to executors and administrators. And it was this section which wras probably intended to be amended by chapter 142 of the Laws of 1879, which declared and continued this rate of compensation, with the restriction that it should in no case exceed $10,000 per annum. Learned judges have in the most unequivocal terms declared insurance companies to be moneyed corporations within the signification and intent of this phraseology as it has been. used in the statutes. (Mutual Ins. Co. v. Supervisors of Erie Co.,
      4 Comst., 442; • People ex rel. Mutual Ins. Co. v. Supervisors of Mew York, 16 N. Y., 424, 438; Attorney General v. Chenango Mutual Ins. Co., 12 Barb., 671.)
    “And under these statutory provisions and the decisions made by the' courts, it might very well be held, if the point could still be considered an open one, that the receiver’s commissions should be limited to these rates. But the court is not now at liberty so to construe or apply them. For under the case of Attorney General v. Guardian Mutual Life insurance Company (93 N. Y., 631), the receiver, acting under a similar appointment, was allowed the sum of five per cent by way of commissions upon the assets of the -company passing into his possession. .
    “ The order making this allowance' was dated on the 23d of December, 1882, and it was afterwards affirmed both by the General Term and the Court of Appeals.
    “ It did not appear in that case, as it has in the present case, under what particular statutory authority the receiver was appointed. But it did appear that he had been appointed by the court, receiver -of a similar corporation to the Security Life Insurance Company, and that the services performed by him under his appointment were of the same general nature.
    “And section 3220 of the Code of Civil Procedure was probably regarded as a controlling authority over the application made in his behalf for the allowance of his commissions; for -no other provision has been found conferring the power upon the court to make the allowance which was directed and sanctioned in that case. By this section the court or judge by whom the receiver has been appointed, was authorized to prescribe his compensation at a sum not exceéding five per cent upon the sums received [and disbursed by him, provided the particular case in which the application should be made was not otherwise specially provided for by statute, and the •courts must have considered such application not to have been within the special provisions of any other statute, in order to warrant the exercise of this authority. And assuming that to have been the consideration and determination of the court, it would follow from it that the statute restricting the compensation to the commissions allowed to executors and administrators were inapplicable to a receiver of an insolvent life insurance company. This conclusion appears very necessarily to follow from the final determination made in the case of the Guardian Mutual Insurance Company.
    “ For the like reasons the present case cannot be considered as included within section 13 of chapter 902 of the Laws of 1869, subjecting the receiver’s claim for compensation to the determination of the superintendent of the insurance department. And beyond that, while it has been stated in the points of tv o of the counsel representing the appellants, that this receiver was appointed under the authority of this act, no evidence has been found in the case justifying that position.
    “ It has further been insisted that this receiver’s compensation should be limited to the rate mentioned in section 2 of chapter 378 of the Laws of 1883. But this act is not applicable to the present case. For the right of the receiver to his commissions had become perfected before the passage of this act, and the application for the examination and- settlement of his accounts had before that time been referred to a referee, whose report was made on the 2d of April, 1883. A final and supplemental account was presented by the receiver, which was sworn to on the 1st of March, 1883, and adopted substantially as presented by him. The act of 1-883 was not passed until the eleventh day of April, and cannot justly be held to be applicable to the commissions of this receiver; for his trust had been practically brought to a definite conclusion before the time of its passage.
    “He had received up to the 1st of March, 1883, the sum of $397,274.22. He had at that time disbursed by way of payments the aggregate sum of $333,234.76, leaving the balance of $63,594.76, and office furniture of the value of $100, in his hands still to be distributed. The time had, therefore, then arrived when he was entitled to have his commissions calculated and allowed. For that was to be done upon the final settlement and disposition of his accounts.

      (Matter of Bank of Niagara, 6 Faige, 213.) His duty and obligation to account had become complete before the passage of the act of 1883, and he was consequently entitled to such commissions as had been secured to him for his services by the preceding legislation of the State. His right to that measure of compensation had become vested, and there was nothing in the last act which could deprive him of it. That is the construction which has been given to the statutes prescribing the compensation of attorneys and counselors. They 'are entitled to the rates fixed by law at the time when the services themselves have been rendered and the right to their fees has accrued. {Supervisors of Onondaga v. Briggs, 3 Denio, 173.) Both reason and justice seem to combine in applying this principle to the compensation of receivers, and that it should be held equally applicable to them. * * *
    “ In the aggregate sum stated to have been paid by the receiver was the amount of $100,000 secured by a mortgage given by the insurance company upon real estate purchased by it and situated in Pine street, in the city of New York, and it has been strenuously objected that the receiver was not entitled to commissions upon this sum of money. But it was made to appear by his own evidence that by the terms of the sale of the property, which was for the sum of $125,000, he obligated himself to pay off and discharge this mortgage. It is stated that the purchaser would not take the title in any other manner, and that the receiver did, as a matter of fact by his own certified check, pay the mortgage standing against the property, and after doing so received the purchaser’s check for the purchase-price of $125,000.
    “ This transaction was not, therefore, within the principle of the cases holding that executors, trustees or receivers selling property subject to incumbrances upon it are not entitled to commissions upon the amount of the incumbrances. For in that class of cases the incumbrances themselves were not paid, but the purchaser received the property subject to that which was upon it, while in the present case, as a strict matter of fact, the receiver did pay off the incumbrance and sold the property free and clear from it. The transaction involved the actual payment of this sum of $100,000 by him, and within the terms of the statute he was entitled to his commissions upon it as so much money which he had received arid disbursed.
    “ The case in this respect materially differs from the advancement of money by a receiver to pay taxes upon lands held by him in his official capacity and after-wards reimbursed to him by means of the proceeds of their sale. For in that case if commissions were allowed to him upon such a transaction he would receive double commissions upon the same sums of money passing into his hands, for he would then have commissions upon the original receipt and the final disbursement of the moneys, and also upon their advancement for the payment of the taxes and their subsequent reimbursement out of the proceeds of the property, and that the law would neither permit nor sanction. While in the present instance but one commission has been claimed or allowed, and that is upon the sum actually received and as certainly expended by him in this transaction. In this respect the case differs very materially in its facts as well as in principle from that of Attorney-General v. North America life Insurance Gom/pany (su/pra).
    “ Under the plain terms of the statute this receiver was entitled to the commissions allowed to him on this transaction.” * * *

      Leslie W. Russell, attorney-general, for the people.

      Raphael J. Moses, Jr., and William Barnes, for certain policyholders, appellants.

      Hamilton Gole, for. the receiver, respondent.
   Opinion by

Daniels, J.;

Davis, P. J., and Brady, J., concurred.

Order modified as directed, and affirmed as modified, without costs.


author: Davis, P. J.;

text:
    THE PEOPLE ex rel. MICHAEL H. SWIFT v. THE BOARD OF POLICE COMMISSIONERS.

      Trial hy boa/rd of police commissioners of New York — rule that where testimony lias been taken, before less than tb/ree commissioners, it must he laid before and examined hy the several commissioners — construction of it.

    Certiorari to review the proceedings and order of the board of police commissioners, on removing the relator from his office as sergeant of police.
    The court at ’General Term said: “ This case really presents but a single question. The evidence that the relator was guilty of the charge was strong and clear. * * * The point referred to as the only one really in the case, is whether all four of the commissioners must be present on such a trial and examine the evidence, before judgment can be pronounced.
    “ The rules of the board allow the testimony to be taken before one commissioner, but provide that where the testimony is taken before less than three commissioners it shall be laid before and examined by the several commissioners. The testimony was in part taken before one commissioner, it was laid before a meeting of the board, three commissioners being present. The examination was then continued, and at a further meeting the relator was again called up for further explanations. We think this proceeding was entirely regular. A meeting of three commissioners constitutes a legal board, with full power to act in such cases. The trial was had before such a board, and its judgment against the relator was unanimous. The language of the rule recognizes the power of three commissioners to hear and determine such cases. The words “ the several commissioners ” does not refer to the four commissioners, but to the several who constitute a board, with authority to try and determine the case. If four be present at the meeting where the testimony has been taken by one, or less than three, it must be laid before and examined by “ the several commissioners present.” And so if but three constitute the board the testimony must be laid before the several commissioners then sitting to try the case. The proceedings are judicial in their character and governed by rules usually applicable to judicial rather than administrative officers.
    “There was no “reopening” of the proceedings in the sense urged by the relator’s counsel. All that was done was to continue the hearing and accord to the accused a fuller opportunity than usual to answer or explain the charge.
    “We see no ground for interfering with the result.”

      John D. Quincy, for the relator.

      Richard J. Morrison, for the respondents.
   Opinion by

Davis, P. J.;

Brady and Daniels, JJ., concurred.

Proceedings affirmed, with costs.


author: Barrett, J.

text:
    Arthur J. Delaney, Appellant, v. The Trustees of St. Patrick’s Cathedral in the City of New York, Respondent.

   — Order affirmed on opinion of

Barrett, J.


text:
    The Emigrant Industrial Savings Bank, Respondent, v. Thomas J. Clute, Appellant, Impleaded, etc.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    Phœbe Smith, as Executrix, etc., and others, Appellants, v. William O’Gorman and others, Respondents.

   — Order affirmed, with ten dollars costs and disbursements, on the ground that the case is not one in which the Code has provided for the substituted service of a summons, and the court had no jurisdiction over the action.


text:
    The People of the State of New York, Plaintiff, v. The Third Avenue Savings Bank, Defendant.

   — Order and judgment affirmed, with costs.


text:
    Henry A. Smith, Appellant, v. Zoe A. M. Fournel, Respondent.—
   Order affirmed, without costs.


text:
    James Morrison, Respondent, v. James H. L’Hommedieu, Appellant.

   — Order affirmed, with ten dollars costs and disbursements.


text: Cornelius B. McCrelis, Respondent, v. William F. Decker, Appellant.


text:
    Jane Schuloff, Administratrix, etc., Respondent, v. The Co-operative Dress Association (Limited), Appellant. Same v. Same
   — Orders reversed, with ten dollars costs and disbursements in one case.


text:
    Meyer L. Reichenbach, Respondent, v. Ruloff Spethman and another, Appellants.

   — Order reversed, with ten dollars costs and disbursements. Opinion Per Curiam.


text:
    Elijah H. Purdy and others, Respondents, v. Edwin J. Dunning, Jr., Appellant.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    Charles L. Harding and others, Appellants, v. Alice Hazard and others, Respondents.

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


text:
    Joseph J. O’Donohue and another, Respondents, v. Zacharias E. Simmons, Appellant.

   — Judgment affirmed, with costs.


text:
    Anselmo Schloss, Appellant, v. James N. Plump, Respondent. Joseph Rosenthal, Appellant, v. The Same.
   — Judgments reversed, new trial ordered, costs to abide event.


text:
    Erwin Butterworth, Appellant, v. Mario Liebman, Respondent.—
   Judgment affirmed, with costs.


text:
    William H. Parsons and others, Respondents, v. Daniel J. Sprague and others, Appellants.

   — Judgment affirmed.


author: Lawrence, J.

text:
    Robert J. Livingston and others, Appellants, v. Russell Sage and others, Respondents.

   — Order affirmed, with ten dollars costs and disbursements, on opinion of

Lawrence, J.


text:
    George F. Gantz, Respondent, v. John W. Holgate, Appellant.—
   Order reversed and attachment vacated, without costs.


text:
    Robert J. Livingston and others, Appellants, v. William H. Webb and others, Respondents.

   — Judgment affirmed, with costs,, on opinion of Larremore, J.


text:
    Maria Hovey and others, Respondents, v. William E. Dodge and others, Appellants.

   — Order modified by striking out the part appealed from, without costs.


text:
    Richard Pancoast, Appellant, v. The American Heating and Power Company and others, Respondents.

   — Order affirmed,, with ten dollars costs and disbursements.


text:
    William S. Williams, Appellant, v. Daniel T. Hedges, Respondent, Impleaded, etc.

   — Order modified by reducing allowance to-each respondent to the sum of $500, and affirmed as modified, without costs.


text:
    Elias P. Williams, Appellant, v. Sarah A. Jarvis, Respondent.—
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Estate of David M. Peyson, Deceased.

   Decree affirmed, with costs.


text:
    Shepherd F. Knapp, Receiver, etc., Appellant, v. John T. McGowan and others, Respondents.

   — Judgment affirmed on the opinion of referee Posworth.


text:
    William J. Brown and another, Appellants, v. Henry B. Lockwood, Respondent.

   — Order affirmed, with ten dollars costs and disbursements.


author: Per Guriam.

text:
    John McEnroe, Respondent, v. John White, Appellant.

   — Order affirmed, with ten dollars costs and disbursements. Opinion

Per Guriam.


text:
    Charles Rothschild and others, Respondents, v. Charles Werner and others, Appellants.

   — Judgment affirmed.


text:
    The Mayor, etc., of the City of New York v. The National Broadway Bank.
   —• Order reversed, without costs, and with leave to the respondents to accept the stipulation tendered and filed by the appellant within twenty days after service of the order to be-entered hereon, if they shall so elect.


text:
    Emanuel M. Morris and others, Respondents, v. Levi G. Joslyn, Appellant.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    Theodore Brierre and another, Respondents, v. William H. Gibson, Appellant.

   — Order modified by striking out the part appealed from, without costs.


text:
    Emil Wyler, Appellant, v. Peter Bowe, Sheriff, etc., Respondent.

   — Judgment affirmed, with costs.


text:
    William E. Marsh, Respondent, v. Charlds F. Chickering and another, Appellants.

   — Judgment affirmed, with costs.


text:
    Bolton Hall and others, Appellants, v. The United States Reflector Company, Respondent.

   — Motion for resettlement denied.


text:
    Edward Hincken, Executor, Respondent, v. Edward J. James, Appellant, Impleaded, etc.

   — Order affirmed, with, ten dollars costs and disbursements.


text:
    Susannah L. Dorland, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

   — Reargument ordered on the authority of McGuire v. Spence (91 N. Y., 303).


text:
    The People of the State of New York v. The Empire Mutual Insurance Company.
   — Order modified, so far as to credit the receiver with the sum of $312.90, and affirmed as modified. Opinion by Daniels, J.


text:
    In the Matter of Charles F. Hunter.
   — Order vacated and argument ordered.


text:
    Mary L. McKenna, Appellant, v. Thomas Bolger, Respondent. —
   ' Reargument denied.


text:
    Bolton Hall v. The United States Reflector Company.—
   Motion for reargument denied, with ten dollars costs.


text:
    In the Matter of Adelaide Clement.
   — Motion for reargument denied.


text:
    In the Matter of Aldis L. Waite.
   — Order reversed, with ten dollars costs and disbursements, and motion directed to be heard at Special Term on its merits.


author: Brady, J.

text:
    James McNulty, Appellant, v. John B. Solly, Respondent.—
   Order affirmed ; opinion by

Brady, J.


text:
    Theron S. Atwater, Appellant, v. The American Bag Loaning Company (Limited) and others, Repondents.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    John Collins, Appellant, v. Sarah J. Collins, Respondent.—
   Motion granted so far as to allow a further order to be entered certifying the decision of this court to .the surrogate, with the award of costs as taxed, and the copies of the papers returned by the surrogate, and vacating the judgment, entered in this court for the recovery of costs, so that the surrogate may proceed to enforce such payment of costs according to the statute, such order to be without prejudice to any proceedings already had in the Surrogate’s Court under the probate of the will.


author: Davis, P. J.

text:
    Violetta A. Calkin, Respondent, v. William C. Conner and others, Appellants.

   — Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


author: Daniels, J.

text:
    John Baird, Respondent, v. The Mayor, etc., of the City of New York, Appellant.

   — Judgment reversed, order of reference vacated, new trial ordered at circuit, costs to abide event. Opinion by

Daniels, J.


text:
    Robert E. Everest, Appellant, v. The Home Gas-Light Company, Respondent.

   — Order affirmed, with ten dollars costs and disbursements.


author: Per Ouriam.

text:
    In the Matter of Sarah Moses and Betsey Moses.
   —Order reversed, writ of habeas corpus' discharged, and the children remanded. Opinion

Per Ouriam.


text:
    Peter Masterson, Appellant, v. Jeremiah A. Cranitch and others, Respondents.

   — Order reversed and proceedings remanded for further action, as directed in opinion. Opinion

Per Ouriam.


text:
    The People of the State of New York, v. The Universal Life Insurance Company.
   — Order affirmed, without costs. Opinion

Per Ouriam.


text:
      The Hebrew Free School Association of the City of New York, Respondent, v. The Mayor, etc., of the City of New York, with others, Appellants.

       Decisions handed down November, 1883.

   — Judgment affirmed on the authority of Hebrew Free School Association v. Mayor (4 Hun, 446).


text:
    In the Matter of the Estate of Henry Deobold, Deceased. —
   Order affirmed, with ten dollars costs and disbursements to be charged upon the appellant personally.


text:
    Julius Heavenrich and others, Respondents, v. Aaron J. Bloomberg, Appellant.

   — Order affirmed, with ten dollars costs and disbursements. Opinion

Per Ouriam.


author: Davis, P. J. •

text:
    In the Matter of the Estate of Emma Bartlett.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J. •


text:
    In the Matter of the Union Stock Yard and Market Company.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Samuel G. French, Appellant, v. The Board of Education in the City of New York and others.
   — Order affirmed,-with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Thomas H. Messenger, Plaintiff, v. John A Casey, Defendant.—
   Judgment ordered for plaintiff upon the case submitted. Opinion by

Daniels, J.


author: Learned, P. J.:

text:
    FRANK WILSON, as Surviying Executor, etc., of LOREN WILSON, Deceased, Respondent, v. HENRY R. REYNOLDS and Others, Appellants.

      Hvidence — personal transactions with a deceased person — what are to he considered as such — whan a party to the transaction cannot testify as to what was said and done hy the others in his presence — Oode of Oivil Procedure, sec. 839.
    In this action, brought to foreclose a mortgage given to the plaintiff’s testator, by the defendants, Reynolds and his wife, the defense of usury was set up by them. Upon the trial Reynolds, having been sworn for the defendants, was asked whether Wilson, the plaintiff’s testator, took any part in the signing of the mortgage.

      Held, that as the giving of the mortgage was a personal transaction between the deceased and the witness the testimony was properly excluded under section 839 of the Code of Oivil Procedure.
    The defendants then offered to prove by him that Wilson was not at the table and took no part in the execution of the mortgage, either by conversation or otherwise.

      Held, that the evidence was properly excluded.
    The witness was then asked at what time and at what place was the money paid for which the mortgage'was given.

      Held, that the testimony related to a personal transaction, 'and was properly excluded.
    His wife, one of the parties defendant, was sworn on behalf of the defendants, and asked whether at the meeting between herself, her husband and Wilson, any money was paid by Wilson to her husband, and whether she had any conversation with Wilson. The defendants also offered to show by her that she was sitting in the office twenty feet away, and saw Wilson pay to Reynolds $950, and heard Reynolds say to Wilson “ here is 950, as we agreed.”

      Held, that as the loan was made to the defendants, the husband and wife, and the bond and mortgage were made and delivered by them, the wife was a party to the transaction, and her testimony as to what then occurred was properly excluded, even though she took no active part therein.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      W. H. Sawyer, for the appellants.

      Leslie W. Russell, for the respondent.
   Learned, P. J.:

This is an action to foreclose a bond and mortgage of $1,000 given by Reynolds and his wife, defendants, to Loren Wilson, plaintiff’s testator. The defense was usury, in that the plaintiff agreed to loan the defendants $1,000, and was to receive a bonus of $50, and that he delivered them only $950, for which sum the bond and mortgage of $1,000 was given.

The questions presented on the appeal arise on the exclusion of evidence under section 829, Code of Civil Procedui’e.

Reynolds having been sworn as a witness for the defendants, was asked, did Wilson take any part, in the signing of that mortgage? And this was excluded, we think, properly. The giving of the mortgage was a personal transaction between the deceased and the defendant.

Again there was an offer to prove that Wilson was not at the table and took no part in the execution of the mortgage either by conversation or otherwise. This bond and mortgage purported to be a personal transaction between the deceased and the defendant. (Koehler v. Adler, 91 N. Y., 658.) The testimony offered was intended, in someway, to affect that personal transaction. (Pinney v. Orth, 88 N. Y., 447.) No witness had previously testified, as was the case in the case last cited.

Again the witness was asked at what time and at what place was the money paid for which the mortgage was given. This was a transaction with the deceased. The money was loaned by the deceased, and testimony as to the time and place was testimony concerning the personal transaction.

The defendant Lucinda Reynolds, one of the parties to the mortgage, was called as a witness for the defendants, and several questions were put to her, viz., whether at the time of the meeting between herself, her husband and Wilson, any money was paid by Wilson to her husband; whether she had any conversation with Wilson; who delivered the bond and mortgage. Offer was also made to show by her that she was sitting in the office, twenty feet away, and saw Wilson pay Reynolds $950, and heard Reynolds say to Wilson, “here is $950, as we agreed.” Now the transaction was, as averred by the answer, a loan to the defendants, and by the answer the bond and mortgage was made and delivered by the defendants to the plaintiff, and the money was received by the defendants. Lucinda Reynolds then was a party to the transaction, just as she was a party to the mortgage. She was not a mere spectator of the dealing between her husband and Wilson, but she was present and having a personal transaction with Wilson.

Where two persons on the one side make a bargain with a third, all three being present, and one of the two does all the talking on their side, if the other is not having a personal transaction with the third, under the section in question, then the evil against which the exception in that section is aimed has not been prevented. And we can best interpret that section by noticing its evident object. (Farnsworth v. Ebbs, 9 Sup. Ct. N. Y. [2 Hun], 438'; Holcomb v. Holcomb, 27 id. [20 Hun], 159.)

Again, the defense, on behalf of Lucinda Reynolds, offered to prove by Henry R. Reynolds that Lucinda did not participate in the negotiation except by signing the mortgage. This was an offer to prove something in regard to a personal transaction which Henry R. Reynolds had with the deceased. It was testimony concerning this personal transaction, and was inadmissible.

The provisions of this section are wise. Great injustice might be done if such testimony could be given of transactions with a party, to which, by reason of his death, he could make no reply. And the principle which lies at the bottom of this provision of the statute should be faithfully applied, however ingeniously the questions and offers may b.e made.

We do not think that the evidence of Burnham .was conclusive, so as to require a reversal on the question of fact.

The judgment is affirmed, with costs.

Present — Learned, P. J., Boardman and Bockes, J J.

Judgment affirmed, with costs.


text:
    JOHN H. POULTNEY, Respondent, v. LEWIS W. BACHMAN, Treasurer, etc., Appellant.

      Order of Odd Fellows — ‘ ‘ benefits ” for side members — right of the society to alter and amend its by-laws — when a member must first resort to the tribunals of the society for redress — conclusiveness of the decision of the tribunals of the society.

    In 1849 the plaintiff became, and he ever since has been, a member of Hudson City Lodge of Odd Fellows. The constitution and by-laws, which were signed by the plaintiff, provided that during the sickness of a member, qualified to receive sick “benefits,” he should receive (if he had attained the scarlet degree) four dollars per week after the first two weeks. The constitution also provided that the lodge might make, alter or amend its by-laws, and the manner of so doing was pointed out in the by-laws. July 9, 1878, the by-laws were regularly amended so as to reduce the benefits of a brother who had been sick for twelve months, to one dollar per week. The plaintiff was taken sick October 5, 1875, and continued so till the commencement of this action. He was of the scarlet degree, and entitled to receive sick benefits. He was paid four dollars a week down to July 8, 1879, and after that date one dollar a week. In an action by him to recover an additional three dollars a week:

      Held, that as the only contract between the plaintiff and the lodge was contained in the constitution and by-laws, they should all be considered together.
    That the lodge had the right to alter the by-law fixing the amount to be paid to sick members, after the plaintiff was taken sick, and that he could not recover the amount prescribed by the former one.
    That the constitution and by-laws required the plaintiff to first seek redress within the society itself, and by appeal carry the question to its highest tribunal, and that until he had exhausted this remedy he had no right to bring an action against the society in this court.

      Quaere, as to whether the decision of the highest appellate tribunal of the society would be conclusive upon the plaintiff.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe trial of this action by tlie court without a jury.

      James P. Sanders, for the appellant.

      John B. Whitbeck, for the respondent.
   Learned, P. J.:

The plaintiff, a member of Hudson City Lodge of the Independ ent Order of Odd Fellows, sued the defendant, as treasurer of that lodge, to recover sixty-seven weeks’ “ benefits ” as a sick member, at four dollars per week, less sixty-seven dollars, which he had received from the lodge by payments at the rate of one dollar per week. He recovered the amount claimed, and the defendant has appealed. Several important questions are presented, some of which it may be unnecessary to consider.

The facts material to the question which we examine first, are as follows: The plaintiff became a member of the lodge in 1849, and has been a member ever since. He signed the constitution and by-laws. At that time the by-laws provided that during the sickness of a member, qualified to receive sick “benefits,” he should receive (if he had attained the scarlet degree), after the first two weeks’ sickness, four dollars per week. It was provided by the constitution that the lodge might make, alter or amend its by-laws. And it was provided by a by-law that the by-laws might be repealed, annulled, altered, suspended or amended in a manner therein pointed out. On the 9th day of July, 1878, the by-laws were regularly amended to the effect, “ that in case a brother has been sick and drawing benefits for twelve months, the lodge shall reduce the same to one dollar per week.”

The plaintiff became sick October 5, 1875, and continued to be sick till the commencement of the action. He was a scarlet member and entitled to receive “ benefits.” The lodge had paid him four dollars per week from the commencement of his sickness up to July 8, 1879; that is, up to twelve months after the passing of the amendment to the by-laws. Since that time they had paid him one dollar per week, which he had received under protest. And one very important question is whether he is entitled to receive four dollars per week according to the by-laws, as they were when he joined; or only one dollar per week, according to the by-laws as they, now exist. The plaintiff claims that the amendment is void as interfering with a vested right and impairing the obligation of a contract.

Now we must notice, in the outset, that by the amendment this plaintiff has not been put upon a different footing from that of other members. From the time the amendment took effect it gave to every sick member four dollars per week for twelve months and one dollar per week thereafter. It acted upon all alike, whether they were sick or well. The lodge did not reduce the plaintiff’s benefits ” to one dollar per week from the time of the amendment. It gave to him, as by the amendment it promised to all, the four dollars per week for twelve months. If the lodge had at once reduced the amount which the plaintiff was to receive to one dollar per week, on the ground that he had already received twelve months of “ benefits ” at the rate of four dollars per week, then the amendment to the by-laws would have operated unequally. The plaintiff in that case, would not, from the time of ■ the passage of that amendment, have received equal rights with other members. In this very important respect, therefore, the lodge does not claim for the amendment any retroactive effect, as was claimed by the defendants in Coyle v. Father Mathew Total Abstinence Benevolent Society (17 Week. Dig., 17), but it puts all its members in an equal position from the time of the passage of the amendment.

And at this point it may be remarked, that if the plaintiff’s position be correct, it would seem to follow that, when there is a sick member of the lodge the by-law regulating “ benefits ” cannot be changed. For if it cannot be changed as to the sick member, then a change as to the others would be unequal in its operation and therefore could not be pei-mitted.

The plaintiff claims that by the sickness he acquired a vested right to the rate of payment provided for by the by-laws as they then existed, and that a subsequent amendment cannot alter that, rate as to him. Now we must notice that if the by-laws, as they existed when the plaintiff signed, constituted a contract that he should be paid at a certain rate in case of sickness, then that contract existed just as much before his sickness as afterwards. If the constitution and by-laws formed an unconditional contract with the plaintiff that the lodge would pay him four dollars per week in case of sickness, then, so long as the plaintiff performed his part, the lodge could not modify its obligation, even before the sickness had occurred. To illustrate: A contract of life insurance is binding on the insurance company, although the insured be still living; and the company cannot vary or annul it (unless by virtue of some reserved right), although the time for the payment of the amount insured has not arrived. So in the present case, if the contract has the absolute character claimed by the plaintiff, it had that character before he was sick. If it cannot be modified after sickness, it would seem to' follow that it cannot before. And the plaintiff must claim, in order to be consistent, that there can never be any alteration of that by-law which establishes the rate of “ benefits,” without the conscn*- of all the members of the lodge.

The only contract between the plaintiff and the lodge is that which is made by the constitution-and by-laws signed by him. And relying on these as the contract, he must take them all. He cannot claim the benefit of one and reject another. He cannot single out one by-law and say that this is absolute and that it cannot be amended and repealed, because the power to amend or repeal is contained in another by-law. But constitution and by-laws must be taken as a whole. And the by-law on which he relies does not of itself constitute the whole contract. That by-law was liable to be amended or repealed, and it was amended. The power to amend was as much a part of the contract, into which the lodge entered, as was the by-law under which the plaintiff claims.

As this is a question of the construction of a contract, it may be of little importance to consider the fairness and reasonableness of such a power of amendment. And yet a word or two on that point may show the propriety of the construction which we give to the contract. This society is benevolent in its design. It aids its sick members from funds arising from dues and entrance fees and the like. Now there might be such an amount of sickness' as would rapidly exhaust all the funds, so that they would prove insufficient for demands upon them. It is well, therefore, that the society should retain a power of control, by which it may diminish or increase its “benefits” according to its ability. Those who are earliest taken sick have no priority over those who may be sick at a later day. They have no vested right to exclude others. Therefore it is that the society retains the right, by amending its by-laws in a legal manner, to regulate its “ benefits ” as it thinks may be for the advantage of all its members.

Some cases are cited by the plaintiff in support of his views. (Kent v. Quicksilver Mining Company, 78 N. Y., 159.) If that case be examined with the reports of the cases below (reported in 12 Hun, 53, and 17 Ilun, 169), it will be found that the decision does not bear on the present question. A good deal is said in the opinion ; and detached sentences may be picked out favorable to the present plaintiff. But it is the decision, not the opinion, which is authoritative. The question involved was as to the right of a corporation to issue preferred stock as against the holders of common stock, when no privilege to do so had been reserved; a question quite unlike the present.

The case of Coyle v. Father Mathew Society (17 Week. Dig., 17), was a case where a society endeavored by a by-law to inflict a penalty for a past delinquency, to which the member was not liable when it took place. That is quite different from the present.

The case of Gundlach v. Germania Mechanics’ Association (4 Hun, 339) is cited by plaintiff and relied upon by the learned justice. But it will be seen, by reference to the opinion, that the court held that the amendment to the articles did not attempt to affect the rights of the plaintiff. They construed the amendments as intended to apply only to the case of members who should die after its adoption. And the decision is put on that ground.

On the other hand, in McCabe v. Father Mathew Society (31 Sup. Ct. N. Y. [24 Hun], 149), it was held that such a society might ■suspend their by-laws granting weekly benefits. The only difference between that case and the present is that the plaintiff there fell sick after the suspension of the by-law. That is a point which we have already discussed.

In the view which we have thus presented we are of the opinion that the agreement under which the plaintiff claims was subject to be amended by virtue of the constitution and by-laws, and that the right to amend constituted a part of the contract. That the plaintiff, therefore, is not entitled to recover. (Fugure v. Mut. Soc. St. Joseph, 46 Vt., 362.)

Again, there is another very important question, viz., whether the plaintiff has any right to bring this action until he has exhausted all remedies by appeal to the superior authorities of the society.

The by-laws of the lodge say that it shall be governed in all things not provided for in these by-laws by the constitution and general regulations of the order. Attached to the by-laws are certain rules for subordinate lodges, of which number one says that the D D. Grand Master shall decide, in writing, all questions of law and usage properly presented to him for that purpose. Numbers four and five provide for an appeal to the Grand Lodge. Further provisions are contained in subsequent rules.

The appellant’s brief contains a quotation from general regulations, article 14, section 2; but we are unable to find this in the case. It may have been assumed to be a part of the papers, although not printed; but, aside from that quotation, there is enough to show that a right of appeal from the action of the defendant lodge exists. And this, too, without referring solely to articles 7 and 8, section 7, as this last section is claimed to apply to penalties strictly so called.

But rule No. 1, above cited, seems to be broad enough to give an appeal on all questions of law and usage. And we see no reason why this should not include a question like that presented in this case.

If this be so, then it may be well said that the contract, whatever it may be on the part of the lodge, includes in itself a pror vision for the decision by the appellate tribunals of the society of the matter in dispute. And therefore it may be urged that, not until these appellate tribunals have decided against the plaintiff, can he say that he has been injured. In other words, it may be claimed that until they shall have decided against him it does not really appear that the defendant has refused to pay what the plaintiff demands. The plaintiff would not claim that a refusal by the treasurer, not authorized by the lodge, was a refusal by the lodge-so as to justify an action. So by analogy the defendant now urges that the refusal by the lodge is not final until the remedy by appeal has been exhausted.

This doctrine is substantially recognized in Lafond v. Deems (81 N. Y., 508), and also in White v. Brownell (2 Daly 329). The case of Tribe of Red Men v. Schmidt (57 Md., 98 ; 25 Alb. L. J., 333), goes to the extent of holding the decision of the appellate tribunal of tbe society conclusive. (See, also, Harrington v. Working Men’s Benevolent Association, 27 Alb. L. J., 438.)

"Without discussing the question, whether or not, the decision of the highest appellate tribunal of the society is conclusive, we are of the opinion that the contract into which the plaintiff entered requires him first to seek redress within the society itself by carrying the question to the highest tribunal. For it is evident that every part of the Constitution and lawful by-laws enter into his contract and are to be considered therewith.

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

Present — Learned, P. J., Boardman and Bockes, JJ.

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


author: By the Oouet :

text:
    JOHN SHAVER, Respondent, v. THE NEW YORK AND LAKE CHAMPLAIN TRANSPORTATION COMPANY, Appellant.

      JMdence — what is inadmissible, as hearsay — vicious propensities of animals — when the master is not chargeable with the knowledge of his servants.

    This action was brought to recover damages occasioned by the plaintiff’s horse having been kicked by one of the defendant’s mules. To show that the defendant had knowledge of the vicious propensities of the mule, declarations of the driver, made soon after the accident, were proved by the plaintiff.

      Held, that the evidence was inadmissible to prove either the viciousness of the mule or knowledge of that fact by the defendant.
    A witness was called by the plaintiff who had been employed by the defendant prior to and at the time of the accident to feed and take care of its teams when they came to its stable. The defendant owned some three or four hundred mules and horses.

      Held, that the knowledge of the witness as to the vicious propensities of the mule did not charge the defendant with notice thereof.

      Baldwin v. Gasella (L. R., 7 Exch., 325) distinguished.
    Appeal from a judgment of the Albany County Court, affirming a judgment rendered by a justice of the peace in favor of the plaintiff for the sum of fifty-four dollars damages and costs.
    On or about the 20th day of November, 1882, while plaintiff’s and defendant’s teams were feeding in a shed on the line of the Champlain canal, north of "West Troy, defendant’s mule kicked plaintiffs horse on the fore leg, and damaged him in the sum of forty-nine dollars.
    To prove that the defendant had notice of thé mule’s vicious propensities, the declarations of its driver, made soon after the accident occurred, were offered by the plaintiff and received without objection.
    A person who had been employed by the defendant to feed and care for its teams while in its stable, was also called by the plaintiff and testified in his behalf.

      Esek Gowen, for the appellant.

      J. D. Hállen, for the respondent.
   By the Oouet :

We think this judgment cannot be sustained :

First. The evidence as to what the driver said is no proof either of the viciousness of the mule or of the knowledge by defendants Of that fact. Even if the driver were an agent of the defendants, his statements would be no evidence against them, unless made in a transaction which he was carrying on dor the defendants and tending to qualify such transaction.

Second. As to the evidence of the hostler. The question here is whether the knowledge of this hostler was the knowledge of defendants. Because it must undoubtedly be proved that the defendants knew of the viciousness of the mule, before they can be made liable for its viciousness. The hostler was in defendants’ employ, apparently charged with the duty of feeding and taking care of their teams when they came to the stable. These teams were numerous, amounting to some hundred horses and mules.

It is evident that no special duty was imposed on the hostler in respect to this mule. He was only to feed and care for the mule when in the stable.

Under these facts the plaintiff relies upon Baldwin v. Casella (L. R., 7 Ech., 325). In that case an ordinary carriage dog of defendant was kept in defendant’s stable under the care and control of defendant’s coachman who lived there. It was held that knowledge of the coachman was knowledge of the master in respect to the dog’s viciousness. One of the learned judges placed the decision on the ground that the possibility of injury arising from things likely to be dangerous, raises a duty on the part of those who have them under their control to inform themselves about them ; that the defendant had appointed the coachman to the duty of having the dog under his inspection.

It is not necessary for us to question the propriety of the decision last cited or that of Stiles v. Cardiff S. N. Co. (32 L. J. [Q. B.], 310). It is enough to say that there is nothing in this case which shows that the hostler had such a duty imposed upon him by the defendants as to make them chargeable with his knowledge of the viciousness of the mule.

It would certainly be unreasonable to charge the owner of an animal with whatever knowledge of its viciousness any person might have who was charged with the least duty whatever in respect to it. That principle, if adopted, would charge an owner with the knowledge which might be possessed by a .boy who might be, in a single instance, employed to lead an animal to water. In the present case the hostler had merely the dnty (so far as appears) of feeding this mule, among many others, when it chanced to be in' the stable. He was not appointed to “ the duty of having the mule under his inspection ”

The judgment should be reversed, with costs.

Present — Leabned, P. J., BoabdmaN and Potteb, JJ.

Judgment of County Court and of justice reversed.


author: BoaRdmaN, J.: Learned, P. J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ORIN WOODWARD, Appellant.

      Larceny — the taking must he “ lucri causa.”
    To constitute the offense of larceny there must he an intent on the part of the taker to reap some advantage or benefit from the taking. (Learned, P. J., dissenting.)
    Appeal from a judgment of the Court of Sessions of Saratoga county convicting the defendant of grand larceny.
    The evidence tended to show that the defendant took a horse belonging to one Ambrose Jewell from the latter’s stable and killed and buried it in a pit. Jewell and the defendant had been on bad terms for a long time and had had lawsuits, one of which was pending at the time the horse was taken.

      W. J. Miner, J. S. I?Amorewux and H. L. Grose, for the appellant.

      John Van Rensselaer, district-attorney, for the People, respondent.
   BoaRdmaN, J.:

The court below did not properly state the legal questions before the jury. Upon the evidence it is certainly a grave question whether the act charged and proved was larceny or malicious mischief. To constitute larceny there must have been a felonious, intent, animo furamdi or luori oaúsa. The malicious killing of a horse is a misdemeanor. (Penal Code, § 654; 2 P. S., *695, and chap. 682, Laws of 1866.) The offenses are quite distinct. In either case there is a trespass. In larceny the taking must be for the purpose of converting to the use of the taker. In malicious mischief no such intent is necessary. In the present case the evidence tends to show a taking of the horse to kill him, with a sole desire to injure the owner. It was incumbent on the coui-t then to point out to the jury the legal elements in the crime of larceny, so as to distinguish it from malicious mischief. This, we think, was not done. The jury was told, in substance, if defendant took or procured to be taken this horse, and killed or aided in killing him, he must be found guilty. (Fols. 283, 284, 296.) In no part of the charge is this language modified or qualified.

The seventh request to charge is as follows: There must have been a felonious intent, for without such an intent there was no crime, and the felonious intent must have been formed before the taking; and that if, before the taking of the horse, the intent was to take it and kill it, the crime would not be a felony, but an offense under the statute, classed among misdemeanors under the term of malicious mischief.” The defendant excepted to the refusal to charge as requested. The request to charge, the refusal to charge, and the exception are all very informal and inartificial, but sufficient, we think, to present the important point in the case.

The defendant was' entitled to have the jury instructed in substance as requested. Mr. Wharton, in his work on Criminal Law (§§ 1781-1784), 'has considered whether larceny can exist where there is no intent on the part of the taker to reap any advantage from the taking. He has reviewed the decisions from the case of Rex v. Cabbage (Russ. & Ry. C. C., 292), cited by the district attorney, to the time of his writing, and concluded that the qualification, “ lueri eausa,” has been accepted by our courts as an unquestioned part of the common law. He says (sec. 1784): “ Thus it has been frequently held to be a misdemeanor, of the nature of malicious mischief, to kill an animal belonging to another, though it has never been held larceny so to kill and take, unless some benefit was expected by the taker.” And he cites, in support of such statement, among other cases, Commonwealth v. Leach (1 Mass., 59); People v. Smith (5 Cow., 258); Loomis v. Edgarton (19 Wend., 420). The conclusion is sustained by the authorities.

It was a serious matter for the defendant whether he should be convicted of grand larceny upon facts which he claimed could only constitute malicious mischief. He had the right to have the distinction pointed out to the jury. He requested it, but it was not done. Thus the court neglected and refused to point out the essential ingredient of the crime of grand larceny, whereby the defendant may have been convicted of a felony, while the facts and the charge were equally applicable to a misdemeanor. , The learned county judge very properly and fully recognized the serious importance of this question when he stayed the execution of the sentence pending an appeal.

There are various other questions presented, but it is unnecessary to consider them, since, upon the point already discussed, a new trial must be granted.

The judgment and conviction are reversed, and a new trial is granted.

Bocees, J., concurred.

Learned, P. J.

(dissenting):

As the opinion of the majority of the court rests upon one alleged error, I shall examine that only.

There was evidence to justify the conclusion that the defendant took the horse wrongfully into his possession before the time when, as the jury might have found, he and others hilled it. And the question presented is whether a wrongful taking,' with the intent at the time to subsequently destroy the property taken, in order to injure the owner, is larceny; or whether,- on the other hand, in order to constitute larceny, the wrongful taking must be with intent to benefit the person who takes.

Grand larceny is the felonious taking and carrying away the personal property of another of the value of more than twenty-five dollars. (2 E. S., m. p. 679, § 63.) The only thing required by the definition in the respect now under consideration, is that the taking be felonious. I cannot see why it is not as felonious to take another’s property, with intent to injure him, as to do the same act in order to benefit the taker. Indeed, the former is the more malicious act of the two.

The Penal Code (§ 528) has made the matter clear by saying that the intent may be “to deprive or defraud the true owner of his - property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person.” In my opinion such was the law before the enactment of that Code.

Blackstone says that “felonious” means “done animo furandi, or as the civil law expresses it, lucri causa.” (4 Bl. Com., 232, ■citing Inst., 4.1.1.) It is worth noticing that the passage thus cited by Blackstone as authority for the phrase, lucri causa, does not. •contain those words, or words similar. On the contrary, theft is, in that passage, defined as the fraudulent dealing with a thing, and nothing is said about such dealing being for the sake of gain. Another passage, however (Dig. 47, 213), seems to include in its definition, gain to the taker, “ lucri faciendi gratiaP

But when the definition of theft is taken into the English law by Braeton, he leaves out this clause, and says only that the taking must be done “ animo furandiP (Bract. 150 5., Twiss’ ed., vol. 2, p. 508.) Lord CoKe’s definition, also, does not include the idea of “ lucri causa.” (3 Inst., 107.)

Mr. Stephens, in his History of the Criminal Law, speaking on this very point, says: “ To this day it is a part of the law of this country, as settled by very modern cases, that the motives which lead a man to commit theft are immaterial; and that the definition of the offense includes an intention to deprive the owner of his property permanently.” (Yol. 3, p. 132.) Again, in Stephen’s Criminal Law (at p. 227), the author says that the act may be done “ from any motive whatever,” establishing this by the citation of authorities. To the same effect also is Roscoe’s Criminal Evidence (7th ed.), 623 [644]. In a careful note to Halloway’s case (1 Denison, 370) it is said : “ Every wrongful taking Avithout any color of right, Avith intent to deprive the owner wholly of his property, is larceny.”

In Bishop’s Criminal Law (vol. 2, § 846), Mr. Bishop states that the English courts seem at last to have utterly overthrown the old notion of lucri ca-usa; and he cites, to show this, the language of Pollock, J., in Reg. v. Jones (1 Denison, 188) and the case of Rex v. Gadbage (R. & R., 292).

I may refer also to the definition in the Mirror for Magistrates, as given by Mr. Stephens in his history (vol. 3, p. 134). “ Larceny is the treacherously taking away from another movable corporeal goods, against the will of him to whom they do belong, by evil getting of the possession or the use of them.” And, without quoting, I may refer also to Hawkins P. C. (p. 89), where the definition of larceny says nothing of lucri causa. Nor do Mr. Wharton’s views in American Criminal Law (§ 1781), appear to be different from those above stated.

In Wharton’s Criminal Law (§ 899), however, a view of the English law is taken, which appears to differ from that of the text writers above cited; and a statement is made as to American decisions on this point, which I shall hereafter examine.

Passing from this summary of text writers, I may say that I find no decision in this State on the question. Some cases are referred to in this connection. Loomis v. Edgerton (19 Wend., 419), decides only that malicious mischief is a misdemeanor. There was in that case no taking of the property, and therefore could have been no larceny. People v. Smith (5 Cow., 258) only held that malicious mischief was a crime. The prisoner had not taken away the property, a cow, and was not indicted for larceny. Peoples. Anderson (14 John., 294) only held that the bona fide finder of a lost article was not guilty of larceny in appropriating it. None of these cases touch the present case. .

If we turn to the English cases we find several in which prisoners have been held guilty of larceny who have taken property, not luori causa. Reg. v. Jones (ut supra), was a case where the prisoner, having received several letters belonging to, and addressed to B., destroyed one of them, in order to suppress inquiries respecting the prisoner’s character. This was held larceny; and Polloce, J., said : “ Will it be contended that picking a man’s pocket, not to make yourself rich, but to make him poor, would not be a larceny.” Rex v. Cabbage [ut swproi) was the case, often cited, where a prisoner was held gnilty of larceny, who had taken a horse of the prosecutor and had backed it into a coal pit, and thus had killed it, with no motive of personal gain; a case I may say, much like the present, except that the prisoner had more excuse for his act. In Rex v. Wynn (1 Denison, 365), the prisoner, a letter sorter in the post-office, took a letter and dropped it into the water-closet, with intent to destroy it, and to deprive the post-office authorities of their letter. There was no personal gain to the prisoner ; yet he was held guilty of larceny. See also Reg. v. Hollaway, above referred to.

In Mr. Wharton’s Criminal Law, he cites, apparently to sustain a contrary doctrine, Commonwealth v. Leach (1 Mass. 59). But the case decides nothing on this point. It only holds that an indictment for poisoning a cow is within the jurisdiction of a Court of Sessions. No question as to the taking of personal property was in any way inyolved.

Mr. Wharton also expresses the opinion that American cases sustain the doctrine of lucri causa. An examination shows this opinion to be incorrect. He cites in support of this view State v. Council (1 Overton [Tenn.], 305). This held that stabbing a horse was indictable. It does not appear that there was any taking; so the question of larceny was not involved. He also cites Resp v. Teischer (1 Dallas, 335), a case which has nothing to do with larceny, and which only holds that the malicious killing of a horse is'indictable. No suggestion is made in that case that the horse was ever taken from the owner; and nothing is said as to larceny. He also cites State v. Hawkins (8 Porter [17 Ala.], 461), which held that taking a slave, in order to set her free, was not larceny. How the question of larceny may apply to the case of a slave, we need not discuss. It is enough to say that the doctrine, for which that case is cited by Mr. Wharton, is overruled in the very State in which it was decided, in Williams v. The State (52 Ala., 411), hereafter referred to; and that in that last ease the court did not deem it necessary even to comment on State v. Hawkins. Mr. Wharton also cites McDaniel v. State (16 Miss., 401). That was an indictment for murder. In the course of the opinion, a definition of larceny is incidentally given ; but there was no attempt, or occasion, to define the crime accurately. The doctrine of lucri ■causa is overruled in Mississippi in the case, hereafter referred to, of Hamilton v. State (35 Miss., 214). These are the only cases that are referred to, for the purpose of showing that decisions in this country sustain the doctrine of lucri causa. It will be seen that ■only one supports the doctrine; and that one has been overruled in the State, where it was made.

On the contrary, Hamilton v. The State (ut supra) held that the taking away of a slave, in order to free him, was larceny. Here there could be no gain to the taker; and therefore, no act done lucri causa ¡ only an intent to deprive the owner of his property. Of course this case overrules any remark to the contrary made in McDaniel v. The State (at supra).

Dignowitty v. The State (17 Texas, 521), quite similar to the present, held that the taking of property with intent to destroy it was larceny.

In Williams v. The State (ut supra), which is a ease closely in point, the court say : no benefit to the guilty agent may be sought, but only injury to the owner.” They hold that the intent need not be gain to the taker; and therefore, in fact, they , overrule State v. Hawkins (ut supra), if that case held otherwise.

The same doctrine is distinctly decided in People v. Juarez (28 Cal., 380); in State v. Ryan (12 Nevada, 401); in Keely v. State (14 Ind., 36); in State v. Davis (38 N. J., Law 176); and in State v. Brown (3 Strob., 508); in which last case the court characterized the doctrine of State v. Hawkins (ut supra) as “ a very novel and startling proposition.” We have seen that it is a proposition already overruled in the State where it was advanced.

In United States v. Durkee (McAllister, 196), it was held that, where members of a vigilance committee seized guns as weapons of defense, this was not larceny. But that act was done neither with intent to injure the owner, nor for personal gain. The case decides nothing on the point in discussion. And the courts of the State, where it was decided, have just been shown to have overruled the doctrine of lucri causa. [People v. Juarez, ut supra.)

It may then, I think, be said to be established by the gieal weight of American authorities, with no real exception, that to constitute larceny it is not necessary that th.e intent of the taker should be to appropriate the property to his use; that, where the other elements exist, it is enough if the intent be to deprive the owner permanently of his property.

If, in the absence of decisions in our own State, we are not to be guided by these text books and by these decisions of other states, and of England, and are to consider the question on principle, then I think the same conclusion should follow. 'That there must be a taking is undoubted ; that it must be wrongful and without excuse or color of right. Put when these circumstances exist, what does it matter whether the motive of the person taking is to benefit himself or to injure the owner ? Suppose the property is a thing highly valued by the owner y a thing which the person taking it cannot use and does not intend to use; and suppose that, out of malice, he takes it from the owner and keeps it permanently, in order to deprive the ewner of it, what is this act ? Not malicious mischief, because the property is not injured ; certainly not a mere trespass, because it has the elements of malicious wrong doing. Is such a Wrong-doer to escape because he can say: “I did not take the property lucri causaJ Yet, on the doctrine against which I am contending, such a wrong-doer would escape altogether. He would be guilty of no malicious mischief, and if not guilty of larceny, would be only a trespasser; a conclusion which seems to me plainly incorrect.

Undoubtedly where there is no taking there is no larceny, although there may be malicious mischief; but when the property has been in fact taken with intent to deprive the owner of it permanently, it does not matter whether the thief intends to kill and eat the cow, or to kill and bury it.

In a large majority of cases the thief intends personal gain. Perhaps, for this reason the phrase lucri causa rarept in, to mark the distinction between larceny on the one hand, and on the other hand the wrongful taking for temporary use and to return (State v. Self,, 1 Bay, 242), or to use and leave. (Rex v. Phillips, 2 East Pl., 662.) It might have been intended to..note the fact that, in eases like these, there was no permanent appropriation. But, as I think, the phrase was misused, or the distinction was incorrect, when it was thought that a wrongful taking with intent to destroy in order to injure the owner was not larceny.

I think it incorrect to call such an act as that of the defendant merely malicious mischief ; because that is a crime which may be committed without any wrongful taking of the property. On the other hand, the taking is of the very essence of larceny. "When we find that circumstance of a taking, we have only to see whether the taking was excusable, or wTas a mere trespass, or was larceny. It is of little consequence which of two bad and' illegal motives influenced the wrong-doer, whether to profit himself or to injure the owner.

I think there was no error in the charge in this respect.

Present — Learned, P. J., BoaRdmaN and Bocees. JJ.

Judgment and conviction reversed, and new trial granted.


text:
    SAMUEL BILLINGS, Appellant, v. GEORGE BILLINGS and Others, Survivors of SAMUEL C. WEED, RESPONDENTS.

      Ifraudulent conveyances — right of the debtor to prefer one creditor — a mortgage given by him to secure a valid debt is valid, though intended to hinder and defraud his other creditors.

    On August 8, 1878, a debtor, who was indebted to Ms brother in the sum of $800 for work and labor performed during the five years immediately preceding that date, offered to secure the amount due by giving a bond and mortgage upon certain real estate owned by him. He made the offer with the intent to hinder, delay and defraud his creditors, and for the purpose of placing the land beyond their reach and securing a home for himself; and the brother, with knowledge of the said intent, and with a like intent, accepted the said mortgage.
    An action to foreclose the mortgage was defended by persons who recovered a judgment against the debtor on December 3,1879, upon an indebtedness which existed prior to the giving of the mortgage, upon the ground that the mortgage was fraudulent and void as to the creditors of the mortgagor.

      Held, that the mortgage was valid.

      Semble, that in the case of a purchase .made with such a fraudulent intent on the part of the vendor and vendee the sale would be set aside, even though the full value of the property was actually paid. (Learned, P. J.) ,

      Appeal from a judgment in favor of the defendants, entered, upon the report of a referee.

      C. A. Kellogg, for the appellant.

      Leslie W. Russell, for the respondents Sawyer & Russell.
   Learned, P. J.:

This was an action to foreclose a mortgage made by George Billings and Sarah A. Billings, his wife, to the plaintiff, August 8, 1878. The defendants, Russell & Sawyer, recovered a judgment against George Billings December 3, 1879, upon an indebtedness-which existed prior to the giving of the mortgage. The consideration of the mortgage was work and labor performed during the five yeai’s next prior to August 8, 1878; and at that date there was owing therefor, from George Billings to the plaintiff, the full amount of $800,, for which the mortgage was given.

The judgment creditors above named defended on the ground that the bond and mortgage were given with intent to hinder, delay and defraud creditors. None of the evidence on the trial appears. The appeal is taken solely on the referee’s report. He finds the consideration of the mortgage to be as is above stated, and that there is justly due to the plaintiffs $800, and interest from the date of the mortgage. He finds further that George Billings offered the plaintiff to secure him by this bond and mortgage, with the intent to hinder, delay and defraud his creditors, and for the purpose of placing the lands beyond the reach of his creditors and securing a home for himself and family; and that the plaintiff, with knowledge of said intent, and with like intent, accepted and received the mortgage. And as matter of law on this he finds the mortgage to be void against the creditors of George Billings.

The principle thus asserted is that a mortgage given to secure a valid indebtedness is void against creditors if made and accepted with intent to place the mortgagor’s property beyond the reach of his other creditors, and at the same time secure him the use thereof.

The question thus presented was in substance before this court in the case of Jewett, Receiver, v. Noteware (30 Hun, 192). And we held a different opinion from that of the learned referee. It may be well, however, to examine again the authorities and to consider the reason why conveyances are held to be void against creditors.

The first case cited by the referee is Fullerton v. Viall (42 How., 294). A note to that ease by the editor disclaims all authority for it; and expresses a wonder that it should have been overlooked so long (viz., from 1858 to 1871), and that no opinion was written in the Supreme Court or in the Court of Appeals. It is published, including the head note, solely on the authority of the plaintiff’s attorney. ¥e cannot give much weight to the authority; and, at any rate, it appears that the alleged fraudulent grantee did i not pay full value.

The next case is Briggs s. Merrill (58 Barb., 389). This holds nothing on the point in question. It only decides that where there is a transfer fraudulent as to creditors, and the consideration is a note given at the time, the law will not aid in the collection of the note. It is part of the fraud.

The same is true of the case of Union Bank s. Warner (12 Hun, 306), also cited .by the referee and the defendant’s counsel. In the case of Salomon v. Moral (53 How. Pr., 342), there was no consideration for the conveyance. In the case of Beals■ s. Guernsey (8 Johns., 446), Johnson made a sale of [whisky to the plaintiff, and the consideration was the plaintiff’s note payable in a year in good whisky. Plainly there was no actual payment, but merely a fraudulent agreement to pay. No case is cited to us where a transfer has been set aside'for which full value has been actually paid at the time.

¥e need not decide the question whether, when a vendee purchases from a vendor and pays at the time a full price, and the transaction is knowingly to defraud creditors, the transaction can be set aside. Possibly it may be said that the price then paid is a part of the fraudulent transaction ; that such a transaction could only be carried out in order to conceal the vendor’s property by changing its shape; that as the whole transaction would be fraudulent, the purchaser must lose what he had paid in such fraudulent transaction.

But the question presented in the present case is different. The mortgagee had a just debt against the mortgagor; a debt which arose in good faith and to which no taint of fraud applied. He was an honest, bona fide creditor of the mortgagor, long before the execution of tbe mortgage. He bad therefore a right to collect his debt or obtain security for it.

'When a creditor collects a debt, or obtains security for a debt, from a debtor who is not perfectly solvent, his intent necessarily is to place the property from which he collects, or on which he obtained security, beyond the reach of other creditors of the debtor. But there is nothing wrong or fraudulent in that intent, or in the act by which it is effected. The diligent creditor is favored, not blamed, by the law.

Nor is it wrong or fraudulent that the debtor should prefer one creditor to another, where there is no bankrupt law. The right to make a preference is always acknowledged. Yet preferences are made to put the debtor’s property, to the extent of the preference, beyond the reach of other creditors.

In the present case the plaintiff might have sued the debtor and recovered judgment on the debt with the tacit consent of the debtor and with the intent of securing the first lien, and tlius, to that extent, depriving these respondents of the opportunity to collect their debt. Such a proceeding would clearly have been valid; whatever its intent. The execution of a mortgage is no worse. (Bedell v. Chase, 34 N. Y., 388; Auburn Ex. Bank. v. Fitch, 48 Barb., 344; Archer v. O’Brien, 14 Sup. Ct. N. Y. [7. Hun], 150.) And we can find no case in which a mortgage given to secure a previously existing honest debt, and given for no more than the amount j ustly due has been set aside. Such a mortgage cannot be given with intent to defraud creditors. It is given to secure a creditor; and security to one in preference to all others is not fraudulent. Therefore to give such preference intentionally cannot be to intend to defraud. Nothing is taken from creditors and there is no intention to take anything from creditors. Hence, there can be no intent to defraud them. Suppose the defendant Billings, instead of mortgaging property, had taken money, and all the money he owned, and had paid the plaintiff with the intent that other creditors should not have that money. Would that be fraudulent towards them ? But it is further found that the mortgage was made for the purpose of retaining the possession of the land as a home for himself and his family. So far as the equity of redemption is concerned that is subject to the lien of the .judgment of Bussell and others. But, further than this, if the debt to the plaintiff was a previously existing honest debt, and the mortgage was given for no more than the amount justly due, we know of no fraud on other creditors in the neglect of the mortgagee to foreclose, or even in the expectation that he would not. Even if the'mortgagee were to foreclose and buy in the premises, he could, without fault towards the mortgagor’s creditors, permit the mortgagor to live on the premises.

¥e are referred to the statute, stating that a conveyance, etc., made with intent to hinder, delay or defraud creditors shall be void. But there is another part of the sentence. The conveyance is void us to the persons hindered, delayed or defrauded. There must be not only the intent, but the intent must be so carried out that some creditors are actually hindered, delayed or defrauded. And that means, not that some other creditor is secured in preference, but that property, which ought to go to creditors, has been transferred to one who is not a creditor. A conveyance is made with fraudulent intent only as to those who are in fact defrauded. And no creditor is defrauded merely by the securing of another creditor in preference to himself.

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

Present — LeaeNed, P. J. and BoaedmaN, J; Booxes, J., not acting.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


author: LeaRNEd, P. J.:

text:
    EDGAR BULL, Appellant, v. ELIZABETH BULL, Executrix, etc., of GEOBGE BULL, Deceased, Respondent.
    'Will— the promise of one, appointed executor, to ca/rry out the testator’s wishes if he will not change his will — when it does not hind his individual property or his estate.

    One Franklin being sick determined to add a codicil to Ms will, giving $8,000 to be equally divided among six nephews. Having stated his determination so’ to do to George Bull, who was named as an executor in the will and was the father of the residuary and principal devisee and legatee therein, George told Mm that he need not make any codicil, but that he, George, would pay the $500 to each nephew. It was understood between Franklin and George that these sums were to he paid by George out of Franklin’s estate, and not by George personally. After Franklin’s death letters were issued to George Bull and one Dana, the executors named therein. The former subsequently died, having, after the testator’s death, admitted the making of the said promise, and stated it to be his intention to fulfill it. The residuary legatees having refused to allow the $3,000 to be paid, the five other nephews assigned their claims to the plaintiff, who was one of the nephews and who brought this action to recover the said sum from the estate of George Bull.

      Held, that the action could not be maintained.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe trial of tbis action by tbe court without a jury.

      Larnsmg dé Lyman, for tbe appellant..

      O. A. Forbes, for tbe respondent.
   LeaRNEd, P. J.:

Franklin Bull, in April, 1879, was sick. He determined to change bis will previously made by adding a codicil, so as to give $3,000 to be equally divided among six nephews, of whom plaintiff is one. Lie stated that determination to George Bull, who was an executor of the existing will and tbe father of the residuary and principal devisee and legatees therein. George Bull thereupon stated to Franklin that he need not make a codicil, but that he, George, would pay the $500 to each of the nephews.

The learned justice who tried the case has found as a matter of fact, that it was then understood between George and Franklin that these sums were to be paid by George out of Franklin’s estate, and not that George was to pay them personally, and that the promise was given and received on this understanding. On an examination of the evidence we are satisfied that this finding is correct.

Franklin died the same month without making the codicil which he had intended. Letters testamentary under his will were issued to George and to one Dana, the executors. Dana transacted most of the business in the settlement of the estate. After the death of Franklin, George admitted the promise and stated that he intended that it should be carried out. The residuary legatees under Franklin’s will refused to consent to the payment; and payment has not been claimed from Franklin’s estate. That estate is not settled,- and amounts over liabilities to $15,000. George Bull died in November, 1879, and the defendant is bis executrix. Tbe other five nephews have assigned their claims against the estate of George to the plaintiff. He now seeks to recover from the estate of George the $3,000 and interest.

If this were a promise to pay out of the estate of Franklin,' and if it therefore had the effect to impose a trust upon that estate, then such trust must be enforced against the surviving executor of Franklin’s estate.

If, on the other hand, it were a promise to pay personally, then as George was not a legatee or devisee, he did not divert, by this promise, to his own benefit anything from the plaintiff and his assignors. He practised no fraud upon them.

We think that the learned justice correctly stated that, in all the cases bearing upon this subject, the promise which has been enforced has been made by a person who, by descent, or devise or bequest, has received from the decedent, property out of' which the proposed devise or legacy would have come; which proposed devise or legacy was prevented by the promise of the person thus held liable.

And if, in this view, it be said that George, as an executor of Franklin, received the estate charged with this trust; if it should be claimed that by this oral promise of one who was to be executor a legacy was given, then the trust must be enforced out of the estate of Franklin.

The reason of the rule is explained in Williams v. Fitch (18 N Y., 549), and cases are cited; and it will appear that in these cases the promissor has, by his promise, prevented the diverting of property from himself. He has not, so far as we can see, been held liable when he was a stranger, not entitled to receive the property by inheritance, bequest or devise. And certainly when the only promise was, by the understanding of the parties, to be performed out of Franklin’s estate, we do not seé that George could be personally liable. If not; then not his estate.

The judgment should be affirmed, with costs.

Present — Leaeubd, P. J., BoakdhaN and BocKes, JJ.

Judgment affirmed, ydth costs.