text:
    In the Matter of the Judicial Settlement of the Accounts of Gilbert M. Vandevort, Ex’r.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Will—Condition against presentation of claims.
    Testator, by his will, gave certain bequests to his grandchildren and certain of his children absolutely and the residue to his children and grandchildren, share and share alike. By a codicil he provided that as he was not pecuniarily indebted to any of his children, if either of them should present any -claim against the estate other than for legacies, bequests and devises under the will, such child and none of the family of such child should have any share in the estate, and all devises or bequests to them should be null and void. A son presented a claim against the estate, which was allowed. Held, that the provision of the codicil was unreasonable and should not be enforced, as it was placed either on a fact of which testator was ignorant, or upon a ground which he positively knew did not exist.
    S. Same—Failure of legacy.
    Such provision was a condition subsequent, and as the legacy to the son was absolute without a gift over, the legacy did not fail,
    3. Same.
    As to the children of such son, they being infants when the will was probated, a provision for them, otherwise valid, could not be defeated because of the failure of another person, though their father, to observe the directions of the will.
    Appeal by Peter Garlock, one of the executors of the last will of Thomas Yandeyort, deceased, from a decree made bv the .surrogate of Ontario county, the 2d day of November, Í889, settling the accounts of Gilbert M. Yandevort, one of such executors.

      K K. Burnham, for app’lt •; Frank Bice and James Bobson, for resp’ts.
   Macomber, J.

This appeal presents the question whether the respondent, Gilbert M. Yandevort, and his two children, Clarence S. Yandevort and Clara E. Yandevort, have forfeited the provisions of the will made in their behalf by reason of the filing, prosecution and recovery of a claim by Gilbert M. Yandevort against .the decedent’s estate.

Thomas Yandevort, the testator, died on the 26th day of December, 1880, leaving a last will, to which were- attached two-codicils. The will bears date August 4, 1875, the first codicil February 4, 1878, and the second codicil June 12, 1879. By the terms of the will, the testator bequeathed and • devised all of his-property situate in Michigan to his grandchildren residing in that state; but to each of his other grandchildren, with the exception of Albert and Ellen Yandevort, children of A. S. Yandevort, deceased, he gave $1,000. To Albert and Ellen he gave $1,500' each; to his daughter, Maria Ga.rlock, $3,000; to his daughter, Sarah E. Emory, $1,200, and to his son, Gilbert M. Yandevort, $500, each legacy payable two years after decease of the testator, who declared in the will that these bequests were intended to-make his children equal in respect to his benefactions, taking into the account advances theretofore made by him. The residue of his-estate, both real and personal, including the proceeds of a farm of 204 acres in Ontario county (which his executors were empowered to sell) he devised and bequeathed among bis children and grandchildren who should be living at his decease, share and sharealilce. The son, Gilbert M. Yandevort, and Peter Garlock, his son-in-law, were named as executors, and letters testamentary were-subsequently, under the probate of the will, duly issued to them.

The first codicil contained the following provision: “ As I am in no wise pecuniarily indebted to any of my children, I do hereby order and declare as my will that if either or any of my sons or daughters shall present to my executors any claim against-my estate, other than claims for the legacies, bequests and devises-provided by my will, that such son or daughter and none of the-family of "such son or daughter shall have any lot, part or share in my estate, or in the distribution of proceeds thereof, and that any and all devises and bequests made in my will to such son or daughter shall be null and void.”

Under the findings of the surrogate, which are supported by the conclusive evidence in the case, it appears that on the 4th day of February, 1878, the testator, at the time of executing the codicil containing this provision, was actually indebted to his son, the-respondent, Gilbert M. Yandevort, in a certain sum of money that the same was not paid by the testator during his lifetime, and the indebtedness continued up to the time of the death of the testator; that the claim was properly proved in the surrogate’s court of Ontario county upon a judicial settlement of the accounts of Gilbert M. Yandevort when acting as temporary administrator of the estate of Thomas Yandevort, and was paid to him in pursuance of the decree of the surrogate.

It is claimed by the learned counsel for the appellant, that under the above facts Gilbert M. Yandevort and his two children, Clarence S. Yandevort and Clara E. Yandevort, forfeited their right to any portion of the estate bequeathed or devised to them by the will. In this contention we cannot concur. Undoubtedly the testator, having a right to say to whom he should bequeath and devise his property, had the right also to impose any proper, lawful and reasonable condition upon any gift which might, in a. certain event, render the gift inoperative. Schouler on Wills, 605; 2 Jarman on Wills, 58; Cooke v. Turner, 14 Simons, 493; S. C., 15 M. & W., 727; Evanturel v. Evanturel, 31 Law Times, N. S., 105; L. R., 6 P. C., 1; Hogan v. Curtin, 88 N. Y., 162.

The condition sought to be imposed, by such provision of this codicil did not prevent the vesting of the gift, but was to the ■effect that the same might become inoperative in the event that, after the death of the deceased and the probate of his will, such a claim should be made against his estate. The cases of Brownson v. Gifford, 8 How. Pr., 393; Hogeboom v. Hall, 24 Wend., 146; Sackett v. Mallory, 1 Metc., 355, have, with others, been pressed upon our attention as holding that, in these circumstances the benefits of the will were forfeited by the respondents. These and other like cases, however, do not seem to us to be applicable to the facts before us for two reasons.

It will be observed, that the bequest to Gilbert M. Yandevort ■was not of any particular sum after deducting any supposed indebtedness of the testator to him, but was absolute in its terms. There is nothing in the codicil or elsewhere in the testament of the deceased tending to show that if any such claim were made .a id established, the amount of the gift contained in the will would be by so much less than it would otherwise be, as was the ■case in the Matter of Hollister, 14 St. Rep. , 335. The testator undertook to establish by his own positive and unsupported declaration the fact that he was not indebted to any of his children. If he was in error in this respect, this provision of the codicil went upon an entirely mistaken hypothesis, and when shown to be erroneous as a matter of fact, it 'must give way to the general intent expressed in the will. If it was but an arbitrary and deliberate ■assertion of the fact which he knew did not exist, it would be in its nature a fraud which could not prevail against the clear evidence that such indebtedness did in fact exist. Ho where is there any intention of the testator to be gathered from the will and the codicils that a less sum should be given to Gilbert M. Yandevort and his children than is expressed in the will. Had the bequest been of .these several sums of money and portions of his property, less the amount of any claim which might be presented against the estate, the . question before us would be entirely different.

We are, consequently, of the opinion, that this provision contained in the second codicil was unreasonable, and ought not to be enforced in this instance, because it was placed either upon a fact of which the testator was ignorant, or upon the ground which he positively knew did not exist In either event, we think the attempted forfeiture of the bequest was inoperative.

There is, however, another ground upon which the decree may be affirmed, and that is, that the provision in question was a condition subsequent, and was made without a gift over of the bequest A personal legacy without any gift over, and which fails by reason of the taking effect of a condition subsequent when made in the limited restraint of marriage or against the contesting of wills, does not fail, as Jarman in his work on wills, (2 Jarman, 581), arid the authorities there cited, show. See also, Jackson v. Westerfield, 61 How., 399.

We know of no reason why the rule should be limited to the cases stated by Jarman. That author did not have in mind, doubtless, the fact that other Conditions, such as the one before us,, might be met in last wills. There is no fact .in this case which brings it within the principle enunciated by a majority of the court in the Matter of Hollister, supra. Had the provision of the will been, that in case the legatees accepted any provision of the-will, they should give up any claim which they had against the.estate, it would have been a condition precedent and not a condition subsequent, and in such a case an acceptance of any provision of the will would manifestly prevent their successful prosecution, of the debt. But, as has already been, perhaps, sufficiently stated,,, the codicil was executed under a misapprehension of facts,.or else in disregard of the legal rights of the respondents, which the testator had no right to ignore. For these reasons, we think the decree should be affirmed.

In addition to the foregoing reasons, there is another which appertains only to the children of Gilbert M.Yandevort, namely: OlarenceS. Yandevort and Clara E. Yandevort, both of whom were infants at the time of the probate of the will, and one still an infant,, namely, Clara E. Yandevort. In respect to these grand-children, of the testator, it appears to us that there was no condition imposed by the testator which might be considered' a condition precedent to the taking effect of their legacies; being infants, and hence without power to appear in court, or to act in their own behalf, a provision for them, otherwise valid, could not, in our judgment, be defeated because of the failure of another person,, though their father, to observe the directions of the will. See Bryant v. Thompson, 37 St. Rep., 431.

For these reasons, we think the decree was correct on the merits,, and that it should be affirmed.

It is also urged in behalf of the appellant that the surrogate had not jurisdiction to consider and pass upon these questions. Without elaborating upon that matter, we content ourselves by’ simply calling attention to the fact that the question was decided by us in October, 1890, in the case of Peter Garlock v. Ella Vandevort, 58 Hun, 601; 33 St. Rep., 1035, which decision was affirmed by the court of appeals, and reported in Garlock v. Vandevort, 40 St. Rep., 418.

Decree affirmed, with costs to the respondents payable out of the estate.

Dwight, P. J., and Lewis, J., concur.


source: Caselaw Access Project

author: Dwight, P. J.

license: Public Domain

text:
    Almira Rowland, App’lt, v. Leonidas D. West, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892

    Fixtures—Chattel mortgage.
    One W., who had a saw mill with a hoiler and engine therein, gave a chattel mortgage on portions of a portable saw mill, which were lying in. the woods, to defendant’s assignor, and the same was duly filed. While the mortgaged chattels were still in the same condition, W. gave a mortgage on the real estate and mill to plaintiff, and included therein said chattels. Before the same fell due W. removed the portable saw mill which had been put in the mill, and gave the same to defendant. Held, that the filing of the chattel mortgage was notice to plaintiff, and that she having taken her mortgage with notice of the existence of the lien, he subsequent annexation of. the property to the realty did not render them a part thereof, so as to deprive defendant of his security, or render him liable for their removal.
    Appeal from, an order denying plaintiff’s motion for a new trial, made at the Yates circuit on the minutes of the court after ■a verdict for the defendant.

      M. A. Leary, for app’lt; M. J. Sunderlin, for resp’t.
   Dwight, P. J.

The action was for damage to a freehold by -severing therefrom certain articles of machinery. The contest is .a familiar one between a mortgagee of the realty and a mortgagee of chattels claimed to have been affixed thereto.

The freehold was a small piece of land upon which one Wainwright, who was the owner in 1889, built a frame saw mill set in "blocks, into which he put an engine and boiler and some other machinery, and, later, the articles of machinery mentioned in the -complaint. These were two circular saws with their frames and the carriage belonging to one of them, a fly wheel and a piece of rubber belting. They had been formerly used as parts of a portable saw mill, and at the time when both the mortgages were given were lying in the woods adjacent to the mill. Such being the situation on the 6th day of August, 1889, Wainwright .gave to one Ludlow a chattel mortgage on the articles in question to secure a debt owing to him. The chattel mortgage was duly filed in the town clerk’s office the next day, and was duly assigned, with the notes accompanying it, on the 2d day of June following.

On the 30th day of August, 1889, and while the chattels in question still lay in the woods, Wainwright gave to the plaintiff, acting by her husband, to secure a debt owing to her, a mortgage of the real estate, which contained, in addition to a description of the land, the following clause: “ Together with the mill building recently erected on said land by said party of the first part, and the steam boiler and engine, belts, machinery, _ saws, planer and implements in and about said building, and belonging to or -connected with the business carried on therein and thereabouts, all of which, for the purposes of this mortgage, is understood and .agreed shall be considered and held as real property and fixtures .annexed to the freehold.” Wainwright testified that when this mortgage was presented to him to be executed he objected to the •clause quoted, giving as a reason that the engine and boiler did not belong to him and that there was a claim on all the old machinery, which comprised the articles mentioned in the complaint; that this statement was made to the plaintiff’s husband and the attorney employed by the latter to draw the papers, and that he, Wainwright, waived his objection only on the assurance by both of those persons that the execution of the new mortgage would make no difference and that after the old claim was paid up the-new mortgage would be good. This testimony was contradicted! by Rowland and by the plaintiff, who testified that she was present a part of the time while the business was being done; but the-question was submitted to the jury whether the plaintiff knew, at. the time she took her mortgage, that there was a chattel mortgage on this property, and they may be presumed to have given, credit to the testimony of Wain wright in this respect.

On default in the payment of the notes secured by the chattel mortgage then held by the defendant he demanded his pay or the property, and Wainwright thereupon, two weeks before the-plaintiff’s mortgage fell due, took the articles described in the-complaint out of the mill' and delivered them to the defendant. The plaintiff foreclosed her mortgage when it became due, and! became the purchaser on the foreclosure sale; and afterwardsbrought this action for the injury to the freehold by the removal of the property in question.

In respect to the manner in which that property was attached; to the realty the evidence shows that the frames of the two circular saws were fastened to the timbers of the building by screw bolts with burs; that of the slab or cross cut saw being swung-from the timbers overhead; that the carriage of the large circular-saw was set (to run back and forth), on a track which lay on the floor-joists ; that the fly wheel was an extra one slipped on to the crank shaft by the side of the main fly wheel and held in place by set, screws, and the belt was, of course, not fastened to anything, except that it passed around, a wheel and pulley.

These were the material facts upon which the case was submitted the jury, with instructions which, we think, were in all respects-in accordance with the law. The three tests of such an annexation of chattels to the freehold as will have the effect to constitute-them a part of the realty were stated very clearly and in accordance with the doctrine of Voorhees v. McGinnis, 48 N. Y., 278, and McRea v. Central Nat. Bank, 66 id., 489, chief importance-being ascribed, as in those cases and especially by Rapallo, J., in the latter of them, to the fact of the intention with which the annexation is made. And the jury was instructed that the manner in which the chattels were annexed, though not a controlling-circumstance, might furnish some evidence to the minds of the-jury upon the question of the intention, in respect to its permanancy, with which the annexation was made.

But the circumstances peculiar to this case also received proper attention at the hands of the court. The fact that the articles of property in question were chattels when the mortgage to the-plaintiff was given, that they were already subject to the chattel mortgage of which the defendant became the assignee; that that, mortgage had been duly filed so as to be constructive notice to-any person who assumed to deal with that property as chattels,, and that there was evidence which tended to show that the plaintiff had actual notice of the chattel mortgage at the time she took: her mortgage; all these facts, or the evidence tending to .establish them, received just attention and were submitted to the jury with proper instructions as to their effect upon the rights of the parties,, if found to be established. We regard those facts as conclusive-in support of the verdict actually rendered.

The property was chattels only when the plaintiff took her mortgag >. It had never been attached to the freehold in question,, nor to any other. It could not be converted into realty by simply callin t it so, nor by an agreement to consider it such. It might, no do i be included as chattels in the real estate mortgage, and those t. is might subsequently be annexed to the freehold so. as to >me a part of the realty, and so enure to the benefit of the m >rtgagee, and that even with the effect of depriving the defendant of the benefit of the prior lien of his chattel mortgage, and to remit him to his remedy against the mortgagor for his wrongful conversi >n of the chattels into realty. Fryatt v. Sullivan Company, 5 Hill, 116; Voorhees v. McGinnis and McRea v. Central Nat. Bank, supra. But most clearly this can be done only in favor of onewtio lias no notice, either actual or constructive, of the prior lien. In the case in 5 Hill, which is the leading one, at least in point of time, cited in support of the doctrine that a chattel mortgagee may be deprived of the security upon which he has parted with his. money in favor of a subsequent lienor by the wrongful act of the: mortgagor in converting the chattels into realty, it was expressly premised that the taker of the mortgage on the real estate had no-notice of the chattel mortgage; and that fact is as clearly assumed in the other cases cited.

On the question of notice it is undoubtedly true that so far as the plaintiff was dealing with real estate in taking her mortgage she was not affected with notice by the filing of the chattel mortgage. As the court said at the circuit, as a purchaser of real estate she need only to inquire at the county clerk’s office for liens on. real estate, and was not required to extend her inquiry to the town clerk’s office in search of chattel mortgages. But the property in question was chattels when it was included in her mortgage, and the town clerk’s office is the repository of liens on property of that character. Upon the facts in this case the filing of the defendant’s chattel mortgage was notice to the plaintiff that the lien existed. So too, if the jury believed the testimony of Wain wright, the plaintiff, by her agents, had actual notice of the claim of the chattel mortgagee, and overcame the scruples of her mortgagor only by assuring him that the former mortgage would hold the prior lien. If such was the case the plaintiff was herself a party to the wrongful conversion of the personal property into realty, and cannot have the benefit of her own wrong.

These views, we think, embrace, in -principle, all the points raised by the exceptions taken by the plaintiff on the trial and discussed on this appeal. They lead to an affirmance of the order appealed from.

Order denying the plaintiff’s motion for a new trial affirmed,, and judgment directed for the defendant on the verdict.

Macomber and Lewis, JJ., concur.


author: Dwight, P. J. Macomber, J.

text:
    George D. Bown, Resp’t, v. Frank Weppner et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Replevin—Undertaking.
    In an action of replevin, the defendant made no demand for a return of the property,- and alleged that the sheriff should have been the party defendant ; that he had the custody of the goods under a levy, and that the defendant’s rights were subject to such levy. Plaintiff, believing this allegation, discontinued the action anda judgment of dismissal was entered. Held, that there was no breach of the undertaking given by the plaintiff in the attachment action, and that an action thereon could not be maintained.
    3. Same.
    The reference in the prescribed alternative condition of the undertaking, to an abatement or discontinuance of the action before the return of the property, is to such a determination of the action before a return of the property in response either to the requirement of the defendant pending the action or in pursuance of a judgment which awards the possession to him.
    (Macomber, J., dissents.)
    Appeal by the defendants frcim a judgment in favor of the plaintiff, entered in Monroe county, on the report of a referee.

      G. J). Reed, for app’lts; G. F. Parker, for resp’t.
   Dwight, P. J.

The action was against the sureties on the ^undertaking of the plaintiff in an action of replevin brought by •one A. Frank Weppner, against the plaintiff in this action, in the municipal court of Rochester, to recover four tierces of lard. The •complaint in that action alleged ownership of the property in the plaintiff, possession by the defendant, demand for and refusal to •deliver the same, and that the defendant had wrongfully converted the same to his own use, and contained the usual demand for judgment. The plaintiff also duly procured the requisition of the municipal court and caused the property to be replevined and •delivered to him. The - affidavit upon which the requisition was issued stated the alleged cause of the detention of the property by the defendant to be that he claimed to hold it as the assignee of one Murdoff. The defendant did not require the return of the property to him. His answer, which was verified by himself, denied the complaint “ in each and every particular,” alleged that the property was in the custody of the sheriff of Monroe county, by virtue •of the levy of 'an execution; “ that the sheriff of the county of .Monroe should be the party defendant in this action in the place of this defendant; that all rights or claim of this defendant as the assignee of the A. F. Murdoff mentioned in the complaint are .•subject to the levy of the said sheriff, * * * and this defendant ought not to be sued on account of any allegations' set forth in the complaint.” The answer made no allegation of ownership or right of possession of the property in the defendant, and by its general denial denied that it was in his possession, and it •.asked for a dismissal of the complaint, but did not demand judgment for the return of the property to him.

Such being the state of the pleadings and of the proceedings in ■the action of replevin, the plaintiff therein, on the adjourned day, went into court and withdrew or discontinued the action, “ by reason,” as the referee finds, “ of the allegation in said answer of: said Bown, alleging a valid levy by the sheriff upon said lard, and believing that he had brought said action against the wrong, party ; ” and the court thereupon entered a judgment of dismissal of the complaint.

We are of the opinion that upon these facts this action ought not to have been maintained against the defendants. They were-sureties merely, and were bound only according to the terms of their undertaking, viz.: for the prosecution of the action, and for the return of the property to the defendant in case the possession thereof should be adjudged to him, or in case the action should abate or be discontinued before the property should be so returned. The action was prosecuted to final judgment, and that judgment-was in favor of the defendant for the only relief to which, under his answer, he was entitled. He could not have judgment awarding possession of the property to him, because he had not demanded such judgment by his answer. And this not merely upon thé general principle that'a man will not be granted judgment for more than he asks, but because, by the statute, such a demand in the answer, in a case like this, is necessary to give jurisdiction to-the justice to render such a judgment. Code of Civ. Pro., §§ 2930, 2931 and 1730. The suggestion that the defendant might, perhaps, in the further progress of the action, have obtained leave to amend his answer in this respect does not meet the-difficulty. The liability of these sureties must be determined upon the case as it actually stood and not as it might have been-made, and no presumption will be entertained that the defendant, would have asked leave to interpose the demand in question if the action had not been discontinued. The relief actually demanded by the answer was in accordance with the whole tenor of that pleading, which, in effect, disclaimed any right in the defendant to the possession of the property.

The reference in the prescribed alternative condition of the undertaking, to an abatement or discontinuance of the action before-the return of the property, is, of course, to such a determination of the action before a return of the property in response either to the requirement of the defendant pending the action, Code,. § 2925, or in pursuance of a judgment which awards the possession to him. In this case the defendant had not made such requirement pending the action*, nor by his answer entitled himself to such a judgment

Upon the case presented here, we are of opinion that no ‘breach of the conditions of the undertaking of the sureties, defendants in this action, has been established, and that the motion for a non-suit should have been granted.

The judgment must be reversed and a new trial granted.

Judgment appealed from reversed and a new trial granted, with, costs to abide the event.

Lewis, J., concurs.

Macomber, J.

(dissenting).—The condition of the undertaking sued on was as follows: “ For the prosecution of the above entitled action; for the return of said chattels to the above named •defendant, if possession thereof is adjudged to him, or if the action abates or is discontinued before the said chattels are returned to ¡said defendant, and for the payment to the said defendant of any sum which the said .judgment awards to him against the said plaintiff." This condition was in conformity to §§ 2920 and 1699 of Code of Civil Procedure. The answer, besides the defenses named in the prevailing opinion, contained a general prayer for ¡relief.

I think the plaintiff in the action in the municipal court, A. Frank Weppner, had no more right to discontinue that action after the defendant therein (the plaintiff in this action) had put in his ¡answer, and then claim as a result thereof that the undertaking went for naught, than he would have had before any answer was served. Moreover, under the prayer for further and general relief which that answer contained, we have a right to assume, had any •question of this kind been raised in the municipal court, as -it should have been raised there if at all, that an amendment would have been ordered as a matter of course. I agree with the learned referee that to hold otherwise would establish a dangerous precedent in courts of justices of the peace, where pleadings .are generally informal and where amendments are liberally allowed in furtherance of justice, not only in those courts, but by the appellate courts on appeal. Code Civ. Pro., §§ 2944 and •3036.

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


text:
    John H. Dinturff, Resp’t, v. Clarence C. Tuthill, Survivor, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Attachment—Warranty-Recitals.
    A warrant of attachment which follows the language of the statute and recites the facts in the alternative is clearly defective. The ground of the attachment should he distinctly recited.
    3. Same—Affidavit—Transfer of property.
    An affidavit which states that the defendant has sold his property to creditors in payment of a past indebtedness or to secure endorsements; that such sale was made at less than tho market price, and was ma’de for the purpose of preferring such creditors, and to hinder, delay, etc., the other creditors, is insufficient to authorize the issuance of an attachment, in the absence of allegations attacking the bona jides of the indebtedness or to show the market price or the price at which the property was applied in payment of the debt.
    Appeal by defendant and by Mathias H. Arnot et al, who are not parties to the action, from an order of the county judge of Yates county denying an application on the part of the defendant and the third persons named, to vacate an attachment previously issued by him.

      F. Collin, for app’lt; J. F. Parlchurst, for resp’t.
   Dwight, P. J.

The application was founded on the papers on which the warrant was granted and an affidavit of the third per,-sons named, showing their interest in the property attached, acquired subsequently to the levy of the attachment. The first mentioned papers consisted of a verified complaint in the action, which was on a promissory note made to the plaintiff by the firm ■of Henry Tuthill & Son, of which the defendant was the sole surviving partner, and an affidavit of the plaintiff which, after setting out his cause of action, continued as follows:

“ That the said defendant Clarence C. Tuthill, as sole surviving •partner of the firm of Henry Tuthill & Son, has removed or is .about to remove the property of the said firm from the state with intent to defraud the creditors of the said firm, or has assigned ■disposed of or secreted, or is about to assign, dispose of or secrete the property of the said firm with intent to defraud the creditors •of said firm. That the sources of deponent’s knowledge are ■conversations' had with the said defendant Clarence C. Tuthill, in which the said Clarence C. Tuthill told defendant that his firm was hopelessly and irretrievably insolvent and had been for some "time past, and that they had no idea of continuing the business. 'That the property of said copartnership consisted simply of about $10,000 worth of barley and malt and a team of horses worth about $1,000, while the indebtedness of said firm was some $65,-000. That on the 27th day of December, 1890, the said defendant Clarence C. Tuthill, as aforesaid, had in contemplation the •making of an assignment of the property of said firm, but that there was some question as to his being legally able to make such .an assignment, that he had sold a certain quantity of malt and barley to one Emmett 0. Dwelle in payment and satisfaction of ¡a past due indebtedness of said firm, and that he had sold the balance of said malt and barley to one John T. Andrews, 2d, in -order to secure Augustus W. Franklin, his uncle, and a partner ■of said Andrews, for his liability by reason of endorsements for the firm of Henry Tuthill & Son. That such sale was made at less than the fair market value of said property, without the payment of any bona fide consideration, and that such sales and transfers were made for the sole and only purpose of preferring the said Emmett C. Dwelle and Augustus W. Franklin, and in-•order that the other creditors of Henry Tuthill Sc Son should be prevented from collecting their debts and demands and left remediless.”

The warrant of attachment contained, by way of recital, a statement that it appeared by the affidavit of the plaintiff that the ■defendant has removed or is about to remove property of the said firm from the state with intent to defraud the creditors of the said firm, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete the property of said firm with like intent.” The warrant contains no other recital of the ground upon which it was issued.

The warrant vflas clearly defective in the respect last mentioned. The requirement of the Code is positive that the warrant “ must briefly recite the ground of the attachment” Code of Civ. Pro., .§ 641. This warrant recites several facts in the alternative, one or another of which is said to have appeared by the affidavit, but it specifies no one or more of them as having so appeared, or as> being the ground upon which the attachment was issued. The. statement clearly does not answer the requirement of the Code, above cited. In Arnot v. Wright, 55 Hun, 561; 29 St. Rep., 425, a similar statement in an affidavit, following the language of the statute, in the disjunctive, was held to be ineffective. The court, said “ the statement in the affidavit was in the alternative, and hence alleged neither one fact nor the other;” citing Lee v. Heirberger,., 1 Code Rep., 38; Collins v. Beebe, 27 St. Rep., 4. For'this irregularity, which was particularly specified 'in their notice of motion,, we suppose the moving parties, appellants here, were entitled to have the attachment vacated. First Nat. Bank v. Bushwick Chem. Works, 25 St. Rep., 830.

But there is a far more radical and meritorious ground .for setting aside this attachment. It is found in the absence from the affidavit of facts necessary to give jurisdiction to the officer to issue the warrant. Of course the mere allegation, in the language-of the statute, of the conclusion of fact of which proof to the satisfaction of the judge is required to be made, is not of itself such proof; it is at the best mere allegation, and since in this-affidavit, it is made in the alternative, it does not amount even to an allegation of either of the facts, one or more of which is required to be shown.

Such an allegation in a complaint would be held bad on demurrer, and it has no tendency to establish either of the facts mentioned. We are remitted, therefore, in the search for proof upon which the county judge might act judicially in determining the plaintiff’s application for an attachment, to the specific statements of the affidavit, made on the strength of alleged declarations of the defendant. And in respect to these, waiving all minor questions, as, for example, whether such evidence is not, mere hearsay, and whether the declarations of an assignor of personal property are admissible to impeach the title of his assignee,, it seems very clear that this evidence, even if held competent, fails to support prima facie either of the conclusions of fact previously alleged. The only effect claimed for it in that direction is that it tends to show that the defendant, as survivor, etc., had! disposed of the greater part of the property of the firm with intent to defraud the creditors of the firm. But to give it such effect is to do violence to the plain import of the alleged declarations of the defendant. Those declarations import nothing more than that the defendant has turned out property of the firm to-pay and secure a particular debt and a particular liability, and thereby to prefer those obligations to other obligations of the firm. The bona fides of those obligations is in no wise impeached. The: statement that the sales of the property were “without the payment of any bona fide consideration ” is evidently only an other-form of the previous statement that the property was turned out in payment of a precedent debt. No rule of law is more absolute-than that, in the absence of statutory regulation of the distribution-of the estate of insolvents, the debtor may employ his property in> payment of such of his honest debts as he sees fit to prefer. The provisions of the act of 1887, chap. 503, apply only to general .assignments for the benefit of creditors, and have never been ■extended beyond the case of transfers of property so connected with a general assignment as to manifestly constitute a part of the •same scheme for the disposition of the estate of the insolvent. Manning v. Beck, 54 Hun, 102; 26 St. Rep., 483.

The statement that such sale was made at less than the fair market value of the property is a mere conclusion of fact of which no evidence is given; it is not stated what was the market value of the property, nor at what price it was applied in payment of the debts mentioned, nor whether the difference between such •value and price was substantial or merely nominal. And the •concluding allegation of this branch of the affidavit, whether it is to be regarded as a declaration of the defendant or a conclusion ■of the affiant, lends no substantiation to the charge of fraudulent intent on the part of the defendant. It is as follows: “ That such sales and transfers were made for the sole and only purpose of preferring the said Emmett C. Dwelle and Augustus W. Franklin and in order that the other creditors of Henry Tuthill & Son should be prevented from collecting their debts and demands and left remediless. ” As we have already observed, the purpose to prefer the creditors named was a lawful one, and its execution must necessarily have the effect to prevent the collection of the debts •due to other creditors, so far as property turned out to the former is concerned. . There seems to be nothing in the facts disclosed by this affidavit to impugn the honest intent or the lawful effect -of the transaction which is the subject of the narrative.

Such being the case, the learned county judge was without jurisdiction to issue the attachment and the motion to vacate the same should have been granted.

The order appealed from should be reversed and the motion granted.

So ordered, with ten dollars costs and the disbursements of the appeal and ten dollars costs of the motion.

Macomber and Lewis, JJ., concur.


text:
    Reuben Doty et al., App’lts, v. Alexander Smith, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    .Statute of frauds—Sale of chose in action.
    In this action defendant counterclaimed for the purchase price of a claim against one B. under a party wall agreement, which he had sold to plaintiff. The sale was by paroi, the purchase price $400, and no requirement of the statute of frauds was complied with. Held, that the alleged sale was not an executed, but an executory one, and that evidence of ■ the oral agreement was not admissible.
    Appeal by the plaintiffs from a judgment entered on the report of a referee.

      William Spargur, for app’lts; F. B. Church, for resp’t.
   Dwight, P. J.

The case presents but a single exception, ■namely, to a ruling of the referee by which he admitted evidence of an oral agreement between the parties. The agreement was-one by which the defendant attempted to sell to the plaintiffs at-the agreed price of $400 a claim of the former against the estate* of one Barnes, deceased, for something over $500. The claim itself rested in an oral agreement of Barnes, in his lifetime, to pay to the defendant in a certain contingency one-half the expense incurred by the latter in building a party wall between adjoining lots of Barnes and the defendant, and was made the basis of a counterclaim by the defendant in this action. The evidence was. objected to by the plaintiffs on the ground that the attempted contract of sale was void by the Statute of Frauds. 2 B. S.r 136, § 3.

The subject of sale was a thing in action. The statute, so far as applicable to things in action, is as follows :

“ Sec. 3. Every contract for the sale of any * * * * things-in action for the price of fifty dollars or over shall he void, unless :
“ 1. A note or memorandum of such contract be made in writing,, and be subscribed by the parties to be charged thereby ; or,
“ 2. Unless the buyer shall accept and receipt * * * the-evidences, or some of them, of such things in action; or,
“ 3. Unless the buyer shall at the time pay some part of the-purchase money.”

It is conceded that no one of the requirements of the statute-was complied with in this, case. There was no note or memorandum of the contract; no acceptance or receipt of any evidence of the claim or thing in action, and the buyers have never paid any part of the purchase money. The referee finds that the sale was; executed on the part of the defendant, and that he parted with his title, and that the plaintiff accepted the transfer of the claim, so far as either of those objects could be accomplished by an oral agreement; but this does not advance the discussion in the least,, because the question is whether either of those objects can be accomplished at all without compliance with one or another of the-requirements of the Statute of Frauds.

As an original question and upon the plain reading of the statute, there would seem to be no room for doubt that this contract, was void, but counsel for the respondent cites many cases to the effect that a chose in action-may be assigned by paroi and that the-statute applies only to executory and not to executed contracts.Both of these propositions are undoubtedly true, but not necessarily decisive of this case. By the plain reading of the statute, a paroi contract for the sale of a thing in action, that is, a contract without note or memorandum in .writing, is good provided, some evidence of the thing in action is delivered by the'seller,, or some part of the purchase money is paid by the buyer; and' in most, if not all of the cases referred to as cited by the respondent, it was substantial compliance with one or both of the two last requirements of the statute which saved the paroi contract from condemnation. This was well shown in the opinion of the court in the case of Truax v. Slater, which is given at length, in the report of the case of Bowery Nat. Bank v. Wilson, 1 N. Y. Supp., 473. In that opinion Van Brunt, P. J., reviews briefly a.

large number of cases thus cited, with the result above indicated. The judgment in Truax v. Slater was affirmed by the court of appeals, 86 N. Y., 630, where Earl, J., says“ It is not entirely clear how much must be done to make an effectual assignment of an account (citing many cases) but the better opinion seems to be that an account may be sold like any chattel, and that any agreement which will pass the title to a chattel will pass the title to an account; there must be a valid agreement of sale, based upon .a sufficient consideration, and if the price be $50 or over the statute-of frauds must be complied with.”

Counsel for the respondent also cites several cases in which expressions have been used to the effect that the statute of frauds applies only to executory and not to executed contracts. Dodge v. Crandall, 30 E. Y., 304; Bray ton v. Sherman, 24 St Rep., 369; Brown v. Farmers' Loan & Trust Co., 117 E. Y., 273; 27 St. Rep., 470. But these were cases in which the action was not, like the countérclaim'in this case, by one of the parties to the ■ alleged contract of sale or assignment to enforce that contract against the other party thereto, but by a third party in repudiation of that contract, and to collect or recover the choses in action assigned, or their proceeds.

In Brown v. Farmers' Loan & Trust Company, the court, by Finch, J., says: “It is insisted, however, that the sale cannot stand because the contract was void under the statute of frauds. But that statute affects only executory and not executed contracts. It is the rule of evidence where one party or the other is seeking performance or damages for non-performance. It has no office where the contract has been executed on both sides, has been fully carried, out by the parties, and requires no aid from the law.” The defendant by his- counterclaim in this case is, precisely, seeking performance of the alleged contract of sale on the part of the purchaser by the payment of the purchase price of the choije in action. To that end he requires the aid of the law, and for the purpose of such an action, or counterclaim, as said by Judge Finch, the statute of frauds furnishes the rule of evidence.

We conclude, therefore, that the decision of the courts have ■not had the effect, to the extent contended for on the part of the* respondent, of abrogating the plain and positive provisions of the statute of frauds, but that those provisions still control in cases of this character, and that the learned referee was in error in admitting the evidence to which objection was made.

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

Macomber and Lewis, JJ., concur.


author: Lewis, J.

text:
    The Washburn & Moen Manufacturing Company, Resp’t, v. Hudson Clarke, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    JJfAMTrPACTTJRDiG COMPANIES—STOCKHOLDERS.
    A person becomes the legal owner of stock in a manufacturing com-party when the transfer or assignment thereof is made to him, and as such is liable for debts of the company accruing subsequently, although his stock is not transferred on the books of the company until after the debt accrued. . '
    Appeal from a judgment of this court in favor of the plaintiff and against the defendant for the sum of $1,353.52 damages and costs entered in Monroe county on the 11th day of May, 1891. The action was brought to recover of the defendant, as one of the stockholders of the Eochester Steel Mat Company, the amount of a judgment in favor of the plaintiff against said Eochester Steel Mat Company.

      'Eugene Van Yoorhis, for app’lt; Hubbell & Me 6vire, for resp’t.
   Lewis, J.

The single and only question in this case necessary to consider is, whether the defendant was- a stockholder of the Eochester Steel Mat Company, within the meaning of the General Manufacturing Act of 1848, on the 2d day of January, 1889, that being the time when the debt accrued for which the judgment was obtained.

The evidence tended to show, and the trial court found, that on the 1st day of December, 1888, a Mr. Lenher, being then the owner of twelve shares of the stock of said mat company, of the par value of $100 a share, made an absolute assignment of the certificate of said stock to the defendant on that day; and that on or prior to the 28th day of December, 1888, the defendant became a stockholder in said company. The evidence upon which these findings were based consisted of the original certificates of the twelve shares issued to Lenher May 16, 1888, upon the back of which was a written assignment thereof to the defendant in the usual form, dated December 1, 1888 ; and attached thereto was the certificate of a notary public of the county of New York, certifying that Lenher came personally before him on the first day of December and acknowledged the execution of the assignment, and also three letters from the defendant addressed to the Eochester Steel Mat Company, the first one dated December -28, 1888, in which the defendant. states that he has enclosed twelve shares of the capital stock of the mat company, standing in the name of S. J. Lenher, which he wished transferred to him"self; and the letter of January 4, 1889,.in which, in answer to one from the mat company inquiring what his interest in the stock was, he stated that his position is that of owner of the twelve shares “ which I sent to you to have transferred to me on December 28, 1888, and which was transferred to me by S. J. Lenher. for value received, and you will please send me certificate without delay.”

The third letter, of April 6th, made inquiry as to whether there was any dividend due him and informing the company, that he would like an offer for his stock. Other witnesses testified to the admissions of the defendant that the certificate of stock was delivered to him at the date of the notary’s certificate, December 1, 1888.

The contradictive evidence consisted of the oral testimony of the defendant and Lenher; to the effect that the stock was in fact transferred to the appellant on the 28th day of December, 1888,. and that for the purpose of preventing the mat company from offsetting a claim which they had against Lenher to any dividend which may have been declared upon the stock, they induced the notary to ante-date his certificate. And they further testified that the transfer of the stock to the defendant was not an absolute transfer, but that the defendant held it as trustee for his brother simply. The trial court gave credence to the certificate of the officer, the letters of the defendant and his admissions, and disbelieved his testimony and that of Lenher given upon the trial.

We think the- defendant has no just cause to complain of the conclusion at which the trial court arrived. . The certificate was not in fact transferred to the defendant upon the books of the company till the 11th day of January, 1889, subsequent to the time the debt was" contracted, but the appellant being the actual owner of the stock at the time the debt was contracted, he is liable for the debt under §§ 10 and 25 of the gen.eral manufacturing act of 1848. He became the legal owner of the stock when the transfer was made and was from that time entitled to any dividends which might be declared upon the stock. He occupied the place of the prior owner. Morawetz on Corporations, vol. 1, § 304; Brisbane v. D., L. & W. R. R. Co., 94 N. Y,, 204; Johnson, v. Underhill, 52 id., 203.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


author: Parker, J.

text:
    Frank T. Lacroy, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.

      (Court of Appeals, Second Division,

      Filed March 15, 1892.)

    1. Master and servant—Negligence—Duty op brakbman. -
    _ la an action for damages to plaintiff while in defendant’s employ, occurring through the failure of a number of brakes to work on a down grade, defendant claimed that plaintiff contributed to the accident by failing to test the brakes before starting, as required by the rules. The court charged that if plaintiff did not have actual knowledge of the existence of the rules, he -could not be held responsible for his failure to test the brakes and might recover. Held, error; as it was shown that the rules came to the knowledge of plaintiff, although he was not furnished with the book of rules.
    2. Same:
    In the absence of printed instructions plaintiff could not have recovered, as he well knew his duty to his employer from an experience of over seven years, and a proper regard for his personal safety required that he should know before reaching the steep descent of six miles whether the train contained-the requisite number of brakes.
    (Bradley and Vann, JJ., dissents.)
    Appeal from judgment of the general term, fifth department, entered on an order affirming a judgment entered on the verdict of a jury;

      James H. Stevens, Jr., for app’It; John G. Record, for resp’t.

       Reversing 81 St. Rep., 753.

   Parker, J.

April 25, 1887, a train crew, of which the plaintiff was a member, consisting of an engineer, fireman, conductor and four brakemen, undertook to take a train of forty cars loaded with coal from Brockwayville to Bradford, a distance of between sixty and eighty miles.

One of the rules of the company then in force relating to the duties of brakemen provided that they should “assist in the shifting and making up trains, and before starting must test the hand brakes, and see that they are in proper condition and work easily, and see that the train signals are in good order and ready for im- . mediate use.”

Before starting this train from Brockwayville the brakemen, of whom the plaintiff was one, did not, nor did any of them, test the hand brakes. So, when the train moved out, whether they were in good working order or not the brakemen were not informed. At Johnsonburg, about twenty-eigbt miles distant, the cars were usually inspected, but on this occasion such precaution was omitted, although the train was on a side track for nearly two hours. But such omission did not prompt the brakemen to test the brakes, although it appears from their testimony that with such heavily laden cars the brakes frequently got out of order after a train has started towards its destination. Until the train reached Freeman’s Switch each of the four brakemen had charge of the brakes on ten cars, the plaintiff having charge of the last ten. At that place one of the .brakemen was injured, and thereafter the plaintiff took charge of the last twenty cars of the train. From Crawford’s Junction there is a down grade in the direction in which the train was running for a distance of nearly six miles, averaging over lOO feet to the mile. At some places the incline is greater than at others, and there are a number of sharp curves and some reverse curves.

The plaintiff’s witnesses unite in testifying that the grade was so steep and the curves so numerous that in order to take a train of forty loaded cars down it was necessary to have from thirty to thirty-five brakes in good working order.

It also appeared that these brakemen had more or less experience in taking trains down Shanty Hill, and that the plaintiff had, in the capacity of brakeman, taken part in running trains up and down this hill for seven or eight years prior to the date of the accident.

Yet when Crawford’s Junction was reached, from which point this steep descent began, with full knowledge of the dangers incident to an attempt to take such a train down without having thirty or thirty-five brakes in good working condition, and well knowing that the brakes on heavily loaded cars are apt to get out of order while a train is in motion, neither the plaintiff nor his associate brakemen had made any effort to .test the brakes for the ■ purpose of ascertaining whether they were in condition to do the work about to be required of them.

As the train left Crawford’s Junction the brakemen commenced to set the brakes, and then, according to their testimony, ascertained for the first time that a number of them would not work. But it was then too late to either repair them or sidetrack the cars having the defective brakes, as was the custom, for the train was beyond control. Eealizing the danger of the situation, the brakemen employed their best efforts to check the rapid movement of the train, but without avail, and its speed kept on increasing until it was running at the rate of sixty miles an hour, when the greater portion of the train was thrown from the track, 'the cars piled on top of each other, resulting in great loss of property to the defendant and personal injury to the plaintiff.

It is the contention of the plaintiff, who was one of the responsible actors in the occurrences which resulted in such serious damage to the property of the defendant, that it should also respond to him in damages for his personal injuries.

It is not contended that the defendant omitted to provide suitable rules and regulations for the management of its railroad, nor that it omitted to employ competent and skillful men to keep its railroad apparatus in proper working order and to operate its trains, and if it had appeared that its rules and regulations had been put in possession of these several brakemen, with instructions to read and observe them, this case would have been brought within the rule laid down in Byrnes v. The N. Y., L. E. & W. R. R. Co., 113 N. Y., 251; 22 St. Rep., 936, and the defendant ab? solved from liability. But in the absence of such proof, the learned trial court reached the conclusion that if the plaintiff did not have actual knowledge of the existence of the rules, he could not be held responsible for his failure to test the brakes, and might recover. That question he submitted to the jury, who found""in favor of the plaintiff.

We shall first consider whether there was any evidence authorizing the jury to find that the plaintiff did not have knowledge of „ the rule of the company, which undisputedly he failed to obey, for if not, the refusal to dismiss the complaint was error.

The plaintiff’s evidence in that regard is as follows:

“ Q. In your caboose you had a little bbolc of instructions; Mr. Bowen’s Book of Instructions, didn’t you ? A. No sir.
“ Q. Look at that and see if you recognize that ? Counsel presents book to witness. A. I saw one of them. We didn’t have none in the caboose. I had seen them before. I knew the company had such books, because John Burns when I was breaking’for him had one. He was mv conductor.
“ Q. Where did he keep them f A. He had them in his desk. In the trunk in the baggage car. I had seen these a great many .times. I knew that they had them. I knew that they had been used during the last time I was in the service of the company.
“ Q. That stated what the duties of the different persons were; conductors, engine-men and flagmen, etc. ? A. Yes sir.
“ Q. The trainmen had access to it; they had an opportunity, of , seeing that and reading that ? A. Yes, sir.
“Q. You read, don’t you? A. Yes, sir.
“ Q. ■ Have you read in that ? A. I read one at one time; the only one I saw.
“ Q. How long before you got hurt that you read one of these books ? A. It was five or six years.
“ Q. Did they give you any book; furnish you any book ? A. No sir.
“Q. Mor rules? A. Mo sir.
“ Q. Mow, you understand that the duties were contained in this book, of course ? A. I didn’t understand a great deal of it, because I just read over one or two pieces in it. I understood there was printed in that the duty of each man; the brakemen, and engineers and conductors.”

In this connection we quote the evidence of the conductor, who was called on the part of the plaintiff, and was in, charge of the train at the time of the accident.

“ Q. Do you recognize this as a guide-book, a book of rules of the defendant ?
“ Counsel presents book to witness.
“A. Yes, sir; it was in force then. At page 83 is a specification of the duties of the flagman.
“Q. Did you have in your caboose one of these books of Mr. Bowen’s bearing date June 1, 1883? A. There was one of the books in the caboose, in the desk. One was generally kept there in the caboose, and was there at this time. I don’t know how long it had been there. We generally had one upon the train to which all these employees had access. These I understand to be a duplicate of the rules and regulations furnished the employees of the company; the duties of freight brakeman I find on page 83.” •

It will be observed that the witness, in the course of his testimony, said with reference to this book of rules, that when John Burns was his conductor he (Burns) kept it in his desk in the baggage car; that witness had seen it a great many times; knew they had it in use during the time he was in the' service of the company; that the trainmen had access to it; and an opportunity of seeing it and reading it; that he could read, and had read one; and further strengthened the positiveness of his statement by • asserting the fact that the book stated the several duties of the positions of conductor, enginemén, flagmen, etc.

Mow, in the testimony so far quoted there is nothing which contradicts, or tends to contradict, liis assertion that he had seen the book; had read it and knew that it stated the duties of the ■different grades of employees.

On being recalled, the plaintiff testified as follows:

“ Q. Was you ever furnished one of these books ? A. Mo, sir.
“Q. And requested and required to read it? A. Mo, sir; never.
“ Q. Anything ever said to you about it by your employer? A.. No, sir.
“ Q. Yet you knew it was one of the books of the company and, contained the train rules? A. Yes, sir.”

This evidence it will be observed does not in any way contradict or vary that previously given. The plaintiff declares that he was -not furnished with a book of rules, not that he did not see one or have access to it. He asserts that be was not requested or' required to read it, not that he did not in fact read it. The apparent object of this testimony was to show that the company did not bring the rules to his attention in the manner it should have done. But the question we are considering is not whether the defendant properly promulgated the rules as to the plaintiff, but whether they in fact came to his knowledge, and we think the evidence permits no other inference than that they did. As the failure to obey the rules occasioned the accident the plaintiff, whose neglect was in part, at least, responsible for it, cannot require the defendant to compensate him for his injuries.

Had he been unacquainted with the printed rules we think he should not have recovered. ' Neither the plaintiff nor his associate brakemen can. offer as an excuse for their conduct that they were without adequate experience in the handling of trains, or unfamiliar with the duties; or with the dangers incidentto running a heavy train down Shanty Hill. They had been long employed in that work; knew that the brakes were liable to get out of order while a heavily loaded coal train was moving over such grades; were, fully acquainted with this particular railroad, the plaintiff having been a brakeman on it between seven and eight years, and understood fully the danger of attempting to take a train consisting of forty cars loaded with coal down Shanty Hill with less than thirty or thirty-five brakes in good condition.

It follows that in the absence of printed instructions the plaintiff and the rest of the train crew well knew that their duty to their employer and a proper regard for their own personal safety made it incumbent upon them to know before reaching the point where the steep descent began, which continued for nearly six . miles, whether the train contained "the requisite number of brakes to properly check its speed, and as a necessary consequence the plaintiff cannot require the defendant to make good to him the damages resulting from an injury which could not have been sustained had he and his co-employees observed that reasonable care and caution which" their experience suggested and the situation demanded.

The judgment should be reversed.

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

All concur, except Bradley and Yaw, JJ., dissenting.


author: Brown, J.—The

text:
    George W. McIntyre, Resp’t, v. Luther H. Buel et al., App’lts.

      (Court of Appeals, Second Division,

      Filed March 15, 1892.)

    1. Deed—Mixes—Conveyance of surface ground—Counterclaim — Fraud.
    Plaintiff, having only a locator’s mining claim to the “John” lode, which the defendants well knew, agreed to put said lode into, a syndicate with a mine to he paid for hy defendants. In this action to recover the balance of the price agreed to he paid him, defendants alleged as a counterclaim that plaintiff fraudulently represented that he was seized of the .whole mine, whereas he had theretofore conveyed to a third party the surface ground of the lode. His deed was produced on the trial and the court charged the jury that it conveyed the right to the surface only and did not impair plaintiff’s right to the minerals.beneath the surface. Held, that even if the construction was not the correct one, the error was not one which permits a reversal of the judgment, as it had no effect upon the case made by defendants’ testimony.
    2. Same.
    The counterclaim was a cause of action for fraud and deceit and it was incumbent upon the defendants to prove not only a false statement or representations, but that such representations were made with intent to deceive, and that such was the result of defendants’ reliance upon them.
    Appeal from a judgment of the general term of the fifth judicial department, affirming a judgment entered upon the verdict of a jury.
    On July 21, 1881, the parties to this action entered into the following agreement:
    '* For tho purpose of forming a syndicate to purchase the ‘ John’ and ‘Forrest’ lodes located in Sari Juan county, state of Colorado, and ultimately to form a company to develope the name, We, George W. McIntyre and Luther H. Buel and Charles D. Safford, do hereby jointly and severally covenant and agree. ■
    “ George W. McIntyre agrees to put in the ‘John’ lode for $8,000, to be paid for in cash $4,000 and syndicate shares or stock $4,000 on a basis of fifty shares at $500 each, making $25,000 for the proposed purchases of the ‘John ’ and ‘ Forrest ’ lodes, (being 8-J- shares.)
    “ Messrs. Buel and Safford also agree to pay for the ‘ Forrest ’ lode themselves; also all commissions, and are to have the remaining shares of the above named fifty as their portion of the transaction. George W. McIntyre is to leave a deed of the ‘ John’ lode with Messrs. Buel and Safford to be used only when the above arrangement is consummated and only in case the original Cameron scheme should fail to carry out its contemplated plans ; otherwise said deed is to be duly returned to said McIntyre.”
    Five days prior to the date of this agreement, McIntyre had conveyed the “ John ” lode to Safford as trustee.
    Thereafter the Cameron scheme having failed, Safford conveyed the property to “ the Cameron Gold' & Silver Mining Company” of San Juan, Colorado, and plaintiff thereupon received the stock to which under the foregoing agreement he was entitled and was paid $1,900 in money. This action was brought to recover the balance of the sum of $4,000, stipulated, to be paid to him.
    The defendants alleged as a defense and counterclaim that the plaintiff, with intent to influence defendants to enter into said agreement and to deceive and injure them, falsely and fraudulently represented that the said “John” lode was 1,500 feet long and 300 feet in width, and that he was seized of the whole thereof, and that relying upon such representations defendants entered into said agreement and made the payments aforesaid, but that after so doing they ascertained that on October 9, 1879, plaintiff had conveyed lo Hannah B. McIntyre the south 100 feet of the surface ground of the said lode its entire length, and that by reason thereof they had sustained damage which they sought to eounter•claim against plaintiff’s demand.

      John J. Linson, for app’lts; Adelbert Moot, for resp’t

       Affirming 33 St. Rep., 778.

   Brown, J.—The

asserted counterclaim was a cause of action founded upon alleged fraud. In making this claim the defend-ants did not proceed in disaffirmance of their contract with the plaintiff, and that agreement remains effectual, subject only to ..■such damages as they may have sustained from the fraud which they charge upon the plaintiff. For the purposes of this action, therefore, no restoration of anything received under the agreement was essential. Gould v. Cayuga County Bank, 99 N. Y., 333; Thomson v. Sanders, 118 id., 252; 28 St Rep., 924; Vail v. Reynolds, 118 N. Y., 297; 28 St. Rep., 707.

It was a fact well known to the defendants that the plaintiff had no title to the “ John ” lode. What he had, and claimed to 2iave, was a locator’s mining claim, and whether that would receive ■recognition from the government and a title to the land be conveyed by it to the holder, was a matter of which defendants were to take the risk.

The defendants’ contention was that plaintiff represented that ¡he -possessed a claim to the whole lode,-1,500 feet long and 300 feet wide, whereas he had conveyed his right to one-third of it to Ms niece Hannah McIntyre. The plaintiff denied making any false representations to the defendants as to the size or extent of the claim, and testified that he repeatedly told them that he had given to his niece the right to the surface of the south one hundred feet thereof. He testified that he had no recollection of the ■deed, but he did not deny its execution.

We must assume from the verdict of the jury that they adopted ■plaintiff’s version of the transaction.

The deed to Hannah McIntyre was produced upon the trial and the court charged the jury that it conveyed the right to the ■surface of the land only, and did not impair the plaintiff’s right to his claim to the minerals beneath the surface, and the exception to the construction thus given to the deed is the only question, necessary to be considered upon this appeal. The construction and effect of the deed to Hannah McIntyre is not a question of importance to the cause of action constituting defendants’ counterclaim. The representations there alleged to have been the inducement of the contract would have been shown to have been false whether the deed conveyed one-third of the whole claim or .a right only to one-third of the surface. The latter construction was the one claimed by the plaintiff and his testimony was to the effect that he had informed defendants that he had conveyed away such a right.

In considering the exception, therefore, it is evident that it has mo effect upon the case made by the defendants’ testimony. The jury have rejected their version of the transaction and adopted the plaintiff’s and the effect of the appellants’ argument is to ask -us to hold that, adopting the plaintiff’s evidence as to the facts, the jury would have been warranted in finding fraud had they been instructed that the deed conveyed one-third of the mine instead of one-third only of the surface.

Had the defendants sought'in their counterclaim an abatement;, from the purchase price, growing out of the failure of the plaintiff to perform his contract, or if a rescission' was sought on the-ground of mutual mistake, the erroneous ruling of the court would', have a most material bearing on this appeal. But the counterclaim constituted a cause of action for fraud and deceit and it. was incumbent upon the defendant's to prove not only a false-statement or representation as to the property agreed to be conveyed, but that such representations were made with intent to deceive and that such was the result of defendants’ reliance upon them. And we must find the evidence of such fraudulent intent in the record before us. The defendants have had their day in court and were bound to prove their whole case, and if it is claimed that there was an erroneous ruling upon the construction of the-deed, it must appear that upon the evidence before us the jury would have been justified m finding a different verdict than that, rendered had the court instructed them upon the legal effect of the deed in accordance with defendants’ request.

As I have already stated, the construction of the deed had no-bearing upon the truth or falsity of defendants’ evidence, and the-question now presented is, would it have permitted the jury upon plaintiff’s own testimony to have found a fraudulent intent-Very obviously it would not

Treating it as we must in the light of the fact now determined, that the only representation was that plaintiff had conveyed to his niece on'e-third of the surface of the ground only, a ruling by the-court that the deed conveyed one-third of the mine would have-shown that the plaintiff’s statement- was untrue. Beyond that, it, would have had" no effect on.the case. It would not have shown-that it was fraudulent. That fact remained to be proven b;y independent evidence, and I find none in the case that would justify such a conclusion.

The deed is not free from ambiguity. The rulings of the trial court and the general term show that the plaintiff’s construction) has support in the, language of the instrument. Of course, if he so believed and honestly stated his belief, there would be no basis-for a finding that he intended deceit.

There is no evidence in the case as to the claim made by the grantee under the deed. She did not appear to be in possession, nor was it shown that she had ever asserted any rights in the property antagonistic to or inconsistent with the plaintiff’s representations. ít did appear that the corporation to which the property was conveyed by defendants failed to get a title from the government for the one-third described in the deed, and we may assume that that was because of the existence of the deed, but it, nowhere appears that it was because of any claim made by Hannah McIntyre.

For aught that-appears in the evidence, Hannah McIntyre may have claimed no greater right in the property than the plaintiff said he had conveyed to her, and if such was the fact, there was -of course no false representation and no deceit

Innocence, therefore, is entirely consistent with the case made by the evidence, and under such circumstances guilt cannot be found. Fraud must be proven and cannot be presumed, and we think that the evidence before us would not support any other -conclusion than that plaintiff was entirely honest when he asserted that the rights that he had conveyed .to his niece were in the surface of the ground only. We think it unnecessary to determine -the proper construction of the deed, and that, assuming for the •purposes of this appeal that the trial court’s construction was not the correct one, the error was not one which permits a reversal of -. .the judgment.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Parker, J., not voting.


author: Bradley, J.

text:
    Martin V. B. Smith et al., Resp’ts, v. Charles Wise et al., App’lts.

      (Court of Appeals, Second Division,

      Filed March 15, 1892.)

    1. Assignment for creditors—Fraud.
    An assignment was made under an arrangement, which was carried out, that the assignee should sell the stock to H. for money furnished by a preferred creditor, and that H. should carry on the business for the benefit of assignor and said creditor in his own name. Held, that these facts made a case of actual, positive fraud as against the creditors, and made the assignment void ah initia, and afforded no protection to the assignee to the prejudice of such creditors.

      ■%. Same—Disbursements of assignee.
    The statutory provision allowing the assignee to account for the estate received by him, “lessany lawful disbursements made or incurred” by him, does not extend to credits for disbursements beyond those which would be treated as lawful without its aid.
    3. Same.
    After paying the wages of the employees, and before this action was commenced, the assignee paid a debt due the Irving National Bank, a preferred creditor. Held, that the payment was made when the debtor was at liberty to make it, and when the direction as such to the assignee was operative. The amount, when so paid, passed beyond his control, and the bank, being a bona fide creditor, could retain it as against the other creditors, and the assignee should be allowed the amount paid.
    Appeal from judgment entered on order of the general term ■of the supreme court in the first judicial department, modifying, and affirming as modified, the final judgment, and to review the judgment entered on order of the general term affirming the interlocutory judgment entered upon the decision of the special term.
    The action was brought to set aside the assignment of the defendant, James White, for the benefit of his creditors, to the defendant, Charles Wise, as fraudulent against such creditors.
    The assignor was engaged in the business of manufacturing -shoes in the city of Brooklyn. He made the assignment April 22, 1886. The plaintiffs then being creditors, afterwards, in May,, June and July following, recovered judgments against him, and. on July 14 commenced this action.
    The defendant White did not answer. The trial of the issues'made by the answers of the other defendants resulted in a- decision of the court that the assignment was fraudulent and void as-against the creditors óf White, followed by a judgment vacating the assignment, appointing "a receiver to take possession of the property, and a referee to take and state the accounts of the defendants. The defendants Wise constituted the film of L. & C. Wise, a creditor of White for considerable amount, and by the-assignment given-a preference preceded after that for wages of employees only by a debt represented by notes of White, endorsed! by L. & C. Wise, held by the Irving National Bank. The trial court found that the assignment was made pursuant to arrangement between the parties to it, that the assignor and his wife-should have and derive from it certain benefits and advantages int fraud of his creditors; and that shortly after the assignment was-made, and to carry out such an arrangement, the assignee sold the-stock and'property in the shoe factory to the defendant Hirsch that such sale was colorable only, and the defendants Wise furnished the money to make it; and that the business was carried oni for their benefit in the name of Hirsch. By the judgment, the-sale to him was also set aside. And the referee, in stating the-accounts of the defendants, charged them with the property, and gave them credit for only the amount'of $760.59, paid by the assignee to the workmen in the factory for services performed prior to the assignment And exceptions, taken to the disallowance to the assignee of certain items, of credit claimed by him were heard at special term, and exception to the disallowance of the amount paid by the assignee to the Irving National Bank in satisfaction of the notes held by it, and before mentioned, was sustained, and the other exceptions, save one, were overruled. On appéal by both the plaintiffs and deferidants to the general term, the order of the special term, so far as it sustained such exceptions, was reversed, and in other respects affirmed. The payments disallowed, and for which the assignee claims he should have credit, are:
    1. The payment to appraisers for appraising the stock,
    machinery, etc., in factory, of................ $150 OO
    2. The payment to counsel for legal services rendered
    to the assignee............................. 1,500 00-
    3. The payment for feed for horses, rent of factory,
    labor, etc.................................. 451 25-
    4. The payment to Irving National Bank of debt pre-
    ferred in the assignment..................... 4,871 94r
    Further facts to which reference may be deemed necessary appear in the opinion.

      Otto Horwiiz, for app’lts; Alex. Blumenstiel, for resp’ts.

       Modifying and affirming 27 St. Rep., 227.

   Bradley, J.

The case presented by the facts as found by the trial court was one of fraud in fact as against the creditors of the assignor and chargeable to both parties to the assignment; and such findings essential to the conclusion that the assignment was-fraudulent and void as. against such creditors were supported by the evidence.

And by it the inference was warranted, as the fact was found., that to consummate the plan and purpose with which the assignment was made, to continue the business for the mutual benefit and advantage of the assignor and the defendants Wise, the sale of the stock, property and machinery of the factory was made by the assignee Wise to the defendant Hirsch; and that such sale was fictitious and made and intended as a cover to the business, to be carried on with the property for the benefit of the other defendants pursuant to the design contemplated when the assignment was made, to the end that the assignor might realize a benefit to himself out of the assigned estate. The conclusion of th& trial court was warranted by the evidence and the interlocutory judgment entered on its decision was properly affirmed by the general term.

Other questions arise on the appeal presenting for review the-accounting represented by the referee’s report. The evidence-taken at the trial was not, nor was that taken before the referee, in the record upon that appeal to the general term. The findings-of the trial court as well as those of the referee were there. The-facts represented by the record supported the view of the general term that this case was one of actual, postive fraud as against tliecreditors of the assignor on the part of both him and the assignee. It followed that the assignment was on its vacation properly treated as void ab initia, and as a consequence it afforded no protection to the assignee to the prejudice of such creditors. Sands v. Codwise, 4 Johns., 536; Davis v. Leopold, 87 N. Y., 620; Swift v. Hart, 35 Hun, 128. The referee allowed to him the amount paid the workmen in the factory for services performed prior to-the assignment and the additional value given to the stock by working it after the assignment, so as to give the creditors the-value only of it as of' that tima The referee found that the-various sums claimed to have been expended by the assignee, except that so allowed, were paid out in pursuance and furtherance of the scheme to defraud the creditors of White. And we-think that none of them other than that paid to the Irving National Bank require any special consideration. It is urged that theassignee’s right to allowance of his disbursements is preserved by the provisions of the decree entered upon the decision of the special term, to the effect that, the defendants should hand over to the receiver all the property of the assigned estate “ and likewise account and pay over all the income, profits and benefits-thereof received by them, or either of them, less any lawful disbursements made or incurred by said assignee.” That provision has. not been construed to extend the right to credits for disbursements beyond those which would be treated as lawful without its ..aid. We see no error in the disallowance of the assignee’s claim for disbursements as such.

Before this action was commenced the assignee paid to the Irving National Bank the debt due to it and which was, firstly, •after wages of employees, preferred in the assignment,amounting to $4,871.94. There would .have been no Question about his right to credit for the amount so paid the bank if he had not been chargeable with actual fraud in the transaction of making the .assignment, although it were set aside as fraudulent against the ■creditors of the assignor. Wakeman v. Grover, 4 Paige, 23; Ames v. Blunt, 5 id., 13; Collumb v. Read, 24 N. Y., 505.

If this were a tortious intermeddling by Wise with the property of White it would be seen that he could have no protection whatever in the disposition of it or its proceeds ;• and if such was the legal effect of the vacation of the assignment the consequence. would be the same. But that cannot be so. His possession was .derived from the assignor and taken with his assent and was lawful. When the assignment was set aside for actual fraud of the parties to it, he was as to creditors treated as never having had title under the assignment, and therefore no rights dependent upon title were as against them available to him. The other disbursements referred to were made by virtue of power dependent ■upon title or the right to possession of the property which rested an the transferring clauses of the assignment The payment to the bank was by the direction of the assignor expressed in that instrument. It was made when the debtor was at liberty to make it, and when the direction as such to the assignee was operative. The amount when so paid passed beyond his control, and the bank being a bona fide creditor could retain it as against the other ■creditors. Knower v. Bank, 124 N. Y., 552; 37 St. Rep., 89.

While it is said an assignee chargeable with participation in the .fraud cannot effectually assert any equity in his behalf, he may have rights which courts will recognize, arising out of his relation to the property taken by virtue .of a fraudulent assignment so far ■as they are consistent with those of the creditors of the assignee, .and do not prejudice them. Loos v. Wilkinson, 113 N. Y., 485; 23 St. Rep., 282. The rights of creditors may be preferential, may be made so by voluntary payment, or may result from the greater vigilance of some than other creditors. In the present ■case the bank had the benefit of the direction by the debtor of a preferential payment to it, and the execution of the direction. The .assignee should be allowed the amount so paid unless the fact that his firm had endorsed the notes held by the bank denied to him the right to such allowance for the reason that otherwise a benefit would result to him from the appropriation of so- much of . the assigned estate.

There may be some apparent force in that view in its bearing upon the policy of the law to permit the adoption o.f no rule which may tend to encourage fraud. But no benefit to the assignee was ■■directly derived from the payment, although it had the effect to relieve him from a contingent liability^. Nor was it an appropriation of the assigned property to the benefit of the assignee in the sense which, furnishes a reason for charging him in behalf of other creditors as for misappropriation of the amount of the fund so> paid to the bank, a creditor of the assignor. He had and executed, the direction of the debtor White to pay the bank debt out of the-property of which his possession was then lawful. Murphy v.. Briggs, 89 N. Y., 446, 451. The view of. the general term, in accord with that of the referee, that the defendants should be charged, with the expenses of the accounting, seems to dispose of that question. The construction of the provision of the interlocutory judgment to the effect that out of the proceeds and the property in the possession of the receiver “ after deducting the legal fees, and expenses of the said receiver and of the said reference the said receiver pay to the plaintiffs” the amounts of their judgments, against Smith, is not necessarily that which is contended for by the defendants. While it apparently provides for taking the expenses of the reference out of the estate, its purpose may have been the protection of the receiver in paying them out of the fund, and without any view to the relief of the defendants from such, expenses. The case was not necessarily an improper one for charging them with the disbursements of the action; and this is-done by a subsequent provision of the same judgment. There is-no occasion to interfere on this review with the conclusion of the court below on the subject of those expenses.

The final judgment should be modified by deducting from the amount with which the defendants are there charged the sum of $4,871.94 paid by the assignee Charles Wise to the Irving National Bank and interest from April 22, 1886; and in other respects the judgments should be affirmed.

All concur; Follett, Oh. J., in result


author: Parker, J.—The

text:
    Ira Dwight, Resp’t, v. The Elmira, Cortland & Northern Railroad Co., App’lt.

      (Court of Appeals, Second Division,

      Filed March, 15, 1892.)

    Negligence—Damages.
    The measure of damages where an orchard and standing grass are set on fire is the difference in value of the land before and after the injury.
    (Bradley, Brown and Landon, JJ., dissent.)
    Appeal from judgment of the general term of the supreme-court, fourth department, entered on an order affirming a judgment entered on the report of a referee.

      James Armstrong, for app’It; Raymond L. Smith, for resp’t.

       Reversing 31 St. Rep., 1005.

   Parker, J.—The

judgment awards to the plaintiff. $503 for damages occasioned by the defendant’s negligence in setting on fire and destroying twenty-one apple trees, two cherry trees and two and one-half tons of standing grass, and also injuring seven apple trees, the property of plaintiff.

The only question presented on this appeal is whether the. - proper measure of damages was adopted on the trial.

A witness called by the plaintiff was asked .*

“ Q. What were those twenty-one trees worth at the time they were killed ? ” - Objection was made that the evidence did not -tend to prove the proper measure of damages, but the objection was overruled, and the answer was: “A. I should say they were worth fifty dollars a piece.”

Similar questions were propounded as to the other trees, a like ■objection interposed, the same ruling made, answers to the same •effect, except,as to value, given, and appropriate exceptions taken.

Testimony was also given tending to prove that the land burned over by the fire was depreciated in value thirty dollars per acre.

The only evidence offered by the plaintiff touching the question of damages was of the character already alluded to.

Fruit trees, like those which are the subject of this controversy, have little if any value after being detached from the soil, as the wood cannot be made use of for any practical purpose, but while ■connected with the land they have a producing capacity which .■adds to the value of the, realty.

Necessarily the testimony adduced tended to show, not the value of the trees, severed from the freehold, but their value as "bearing trees, connected with and depending on the soil for the nourishment essential to the growth of fruit.

How much was the realty, of which the trees formed a part, ■damaged, was the result aimed at by the questions and attempted to be secured by the answers.

Can the owner of an injured freehold, because the trees taken ■or destroyed happen to be fruit, instead of timber trees, have his •damages measured in that manner, is the question presented now :for the first time in this court, so far as we have observed.

The learned referee followed the decision in Whitbeck v. N. Y. C. R. R., 86 Barb., 644, in which the proposition is asserted that while fruit trees form a part of the land, the true rule is that if •the thing destroyed has a value which can be accurately measured without reference to the value of the soil in which it stands, or out of which it grows, the recovery must be for the value of the thing destroyed, and not for the difference in the value of the land before and after such destruction. The .court ■cited no authority for the conclusion reached, and our attention has not been called to any prior decision justifying its position. - "Nor has the Whitbeck case" been approved in this court, although ■ cited and distinguished in Argotsinger v. Vines, 82 N. Y., 309. While the rule is undoubtedly as stated by the learned judge in the Whitbeck case, that a recovery may be had for the value of the thing destroyed, where it has a value which may be accurately measured without reference to the soil in which it stands, he apparently overlooked the fact that fruit trees do not have :such a value, and the rule was, therefore, as we think, wrongly applied.

Cases are not wanting to illustrate a proper application of that Tule. Where timber forming part of a forest is fully grown, the value of the trees taken or destroyed can be recovered.

In nearly all jurisdictions this is all that may be recovered, and the reason assigned for it is that the realty has not been damaged, because the trees having been brought to maturity, the owner is advantaged by their being cut and sold, to the end that the soil may again be put to productive uses. Sutherland on Damages, vol. 3, p. 374; Sedgwick on Damages (8th ed.), vol. 3, p. 45; Single v. Schneider, 30 Wis., 570; Webster v. Moe, 35 id., 75; Webber v. Quaw, 46 id., 118; Haseltine v. Mosher, 51 id., 443; Tuttle v. Wilson, 52 id., 643; E. E. Bolles W. W. Co. v. U. S., 106 U. S., 432; Graessle v. Carpenter, 70 Iowa, 166; Ward v. Carson R. Wood Co., 13 Nev., 44; Tilden v. Johnson, 52 Vt., 628; Adams v. Blodgett, 47 N. H., 219; Cushing v. Longfellow, 26 Maine, 306.

In this state it is settled that even where full grown timber is, •cut or destroyed, the damage to the land may also be recovered, and in such cases the measure of damages is the difference in the valué of the land before and after the cutting or destruction complained of. Argotsinger v. Vines, 82 N. Y., 308; Van Duesen v. Young, 29 id., 36; Easterbrook v. Erie R. R. Co., 51 Barb., 94.

The rule is also applicable to nursery trees grown for market, because they have a value for transplanting; the soil is not damaged by their removal, and their market value necessarily furnishes the true rule of damages. Sedgwick on Damages (8th ed.), vol. 3, p. 46; Birket v. Williams, 30 Ill. App., Cases, 451.

Coal furnishes another illustration of the rule making the value of the thing separated from the realty, although once a part of it, the measure of damages where it has a value after removal, .■and the land has sustained no injury because of it Sedgwick on Damages (8th ed.), vol. 3, p. 48; Sutherland on Damages, vol. 3, p. 374 ; American & English Ency. of Law, vol. 5, p. 36, note :2; Stockbridge Iron Co. v. Cone iron Works, 102 Mass., 80; Oak Ridge Coal.Co. v. Rogers, 108 Pa. St., 147-152; Dougherty v. Chesnutt, 86 Tenn., 1; Coleman's Appeal, 62 Penn. St., 252; Ross v. Scott, 15 Lea (Tenn.), 479-488; Forsyth v. Wells, 41 Pa. St., 291; Chamberlain v. Collinson, 45 Iowa, 429; Morgan v. Powell, 3 Adol. & Ellis, N. R., 278; Martin v. Porter, 5 M. & W., 351.

On the other hand cases are not wanting where the value of the thing detached from the soil would not adequately compensate the owner for the wrong done, and in those cases a recovery is ■permitted embracing all the injury resulting to the land.

This is the rule where growing timber is cut or destroyed. Because not yet ’fully developed, the owner of the freehold is deprived of the advantage which would accrue to him could the trees remain until fully matured. His damage, therefore, necessarily extends beyond the market value of the trees after separation from the soil, and the difference between the value of the land before and after the injury constitutes the compensation to which he is entitled. Longfellow v. Quimby, 33 Maine, 457; Chipman v. Hibbard, 6 Cal., 162; Wallace v. Goodall, 18 N. H., 439-456; Hayes v. M. R. R. Co., 45 Minn., 17-20.

In Wallace's case, supra, the court said: “ The value of young timber, like the value of growing crops, may be but little when separated from the soil. The land stripped of its trees may be valueless. The trees considered as timber may from their youth be valueless, and so the injury done to the plaintiff by the trespass would be but imperfectly compensated, unless he could receive a sum that would be equal to their value to him while standing upon the soil.”

The same rule prevails as to shade trees, which although fully developed, may add a further value to the freehold for ornamental purposes, or in furnishing shade for stock. Nixon v. Stillwell, 52: Hun, 353; 23 St. Rep., 474, and cases cited supra.

The current of authority is to the effect that fruit trees, and ornamental, or growing trees, are subject to the same rule. Montgomery v. Locke, 72 Cal., 75; Mitchell v. Billingsley, 17 Ala., 391-393; Wallace v. Goodall, 18 N. H., 439, 456; Sedgwick on Damages (8th ed.), vol. 3, § 933.

It is apparent from the authorities already cited, as well as-those following, that in cases of injury to real estate the courts-recognize two elements of damage.

I. The value of the tree or other thing taken after separation, from the freehold, if it have any. 2. The damage to the realty,, if any, occasioned by the removal. Ensley v. The Mayor, 2 Baxter (Tenn.), 144; Striegel v. Moore, 55 Iowa. 88; Longfellow v. Quimby, 33 Maine, 457; Foote v. Merrill, 54 N. H., 490.

A party may be content to accept the market value of the thing-taken, when he is also entitled to recover for 'the injury done to-the freehold. But if he asserts his right to go beyond the value-of the thing taken or destroyed after severance from the freehold,, so as to secure compensation for the damage done to his land because of it, then the measure of damages is the difference in value of the land before and after the injury.

In this case the plaintiff was not satisfied with a recovery based! on the value of the trees destroyed after separation from the realty, of which they formed a part, as indeed he should not have been, as such value was little or nothing, so he sought to obtain the loss occasioned to the land by reason of the destruction' of an orchard of fruit bearing trees, which added largely to its productive value.

This was his right, but the measure of damages in such a case is, as we have observed, the difference in value of the land before and after the injury, and as this rule was not followed but rejected: on the trial, and a method of proving damages adopted not recognized nor permitted by the courts, the judgment should be reversed.

All concur, except Bradley, Brown and Landon, JJ., dissenting.